Abortion Bans Don’t Need to Go Into Effect to Cause Harm

Last week, an abortion clinic in Georgia made what it considered a necessary investment in a large, royal blue sign to display outside its offices, which reads, in bold letters: “This clinic stays open.”

Wula Dawson, the director of development and communications of Atlanta’s Feminist Women’s Health Center, said she and her colleagues made the purchase in anticipation of the six-week abortion ban Governor Brian Kemp signed into law on Tuesday. (The bill, HB 481, also gives fetuses full legal recognition in the state.) The FHWC staff had already observed a noticeable decline in patients the day after the bill passed in the state legislature in April, and clinic escorts reported that nearly every patient who did come in was unsure if they still had an appointment.

Despite the fact that the law isn’t slated to go into effect until January 2020—and will likely face an onslaught of legal challenges that should block it from taking effect at all—Dawson says the governor's signature has sown even more confusion and fear in her patients. In the past two days, she estimates one in three patient calls to the clinic are about whether they can still access abortion care.

“We had a patient call today in tears because although she’s still in the first trimester, she just passed the six-week mark,” Dawson said Thursday. “She doesn’t have a lot of support and she’s just terrified.” Staff explained to her that abortion after six weeks was still legal, and she could come in for her appointment as planned.

Abortion providers in Georgia and Ohio—two of the four states that have passed six-week abortion bans since March—say they’ve noticed a dramatic uptick in calls like the one Dawson describes in the days and weeks since their governors signed the restrictive legislation. Some patients have called to ask if abortion is now illegal in their state, while others have wondered if it’s still possible to receive their scheduled abortions—even though both abortion and abortion after six weeks are still legal. (Ohio's law hasn't taken effect yet either, and is subject to legal challenges.)

Many doctors and advocates argue that the recent spate of extreme anti-choice legislation deters patients from seeking reproductive care even when they still have the legal right to do so.

Shaye Scott, a 22-year-old in Kentucky, said she panicked when she heard Governor Matt Bevin signed the state’s six-week ban into law in March. She said she and her partner have had a couple of pregnancy scares in the past, and that even though a judge temporarily blocked the law from going into effect the same day as its passage, she was flooded with uncertainty about what would happen if she had an unexpected pregnancy in the future.

“Getting an abortion and sometimes even getting access to birth control in the Bible Belt was difficult enough before this legislation—many of us here are not sure what we will have access to anymore,” she wrote in an email. She wondered: “Have there ever been … clinics that have offered abortions but, once strict legislation came into play, actually ceased practice of the procedure?”

Calla Hales, the director of A Preferred Women’s Health Center, which operates two clinics in Georgia, says these are the sort of questions her staff has received over the last couple of days. About half of the incoming calls to the center have been from patients “asking if abortion is illegal and being really concerned,” she said.

“People are saying, ‘I don’t know if I can make an appointment,’” Hales said. “We’re explaining to them, ‘No, abortion isn’t illegal. This ban doesn’t go into effect until 2020, and honestly, it may never get there.’”

“My clinic gets calls every day asking, ‘Are you still open?’” said Catherine Romanos, an Ohio-based provider and fellow at Physicians for Reproductive Health. “Then they’ll ask, ‘Well, will you be open next week for my appointment?’”

Hales and Romanos are used to explaining the intricacies of abortion laws to worried patients. Both Georgia and Ohio require state-directed counseling and a waiting period of 24 hours before patients can terminate a pregnancy; they both have stipulations about insurance coverage of abortion under the Affordable Care Act, and mandate parental notification or consent for minors. These measures alone make it difficult for their patients to understand what kind of abortion care they have a right to, and what hoops they will have to jump through before a doctor can legally provide it.

Romanos said in her state the “heartbeat” rhetoric surrounding recent legislation has only added to patients’ confusion. Conservative politicians commonly refer to six-week bans as “heartbeat bills,” because they intend to restrict abortion before detection of a fetal “heartbeat”—though doctors have said it's more accurately termed “fetal pole cardiac activity." But since Ohio already has a “heartbeat determination” measure in effect—requiring providers to perform an ultrasound on patients and notify them if they pick up a “heartbeat”—patients often conflate the regulation in effect with pending “heartbeat” legislation seeking to ban abortion at six weeks.

“Some patients will hear the word ‘heartbeat’ and assume it means they can’t get an abortion,” Romanos said.

Robin Marty, the author of Handbook for a Post-Roe America, sees media coverage of the recent legislation as contributing to some of the alarm. In the wake of Kemp’s signature on Georgia’s six-week ban, sites like CBS News ran headlines reading “Abortions after six weeks will now be illegal in Georgia”; a story from the Washington Post neglected to mention the legal obstacles the law will face until the ninth paragraph. And Marty said she saw friends on Facebook circulating a Daily Mirror article, which falsely claimed that an 11-year-old in Ohio who had become pregnant after being sexually assaulted would be forced to carry the pregnancy to term because of the state’s ban. Another UK site wrote a similar story which was shared on Cleveland.com's Facebook page before being taken down.

“The media is so intent on showing how extreme these laws are that they tend to just say ‘it’s signed into law’ or ‘it’s now illegal,’ when the reality is these bills don’t go into effect immediately,” she said. “That means you have people who think there’s no legal abortion in Georgia.”

Abortion providers say the cumulative effect of the mass confusion and chaos is stigma—one of the most effective tools anti-abortion activists have at their disposal. If something is banned, it must be "bad."

“When a patient sits down alone with their thoughts about an unexpected pregnancy and are weighing their options, that shame and stigma comes in,” Romanos said. “And then maybe there’s this added question: Is abortion even legal anymore?”

The confusion isn’t likely to let up any time soon. Thursday afternoon, the Alabama Senate erupted into a debate about stripping an exception for rape and incest from a bill that would ban abortion outright in the state. It’s likely to pass next week—and likely to face swift legal challenges preventing it from being enacted.

But, as Romanos and her colleagues have learned, many patients won’t know that.

“Patients should be allowed to consider all of their options and consult doctors to make the right decision for themselves,” Romanos said. “But I wonder if they feel all of their options are even there.”