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Imprisoning Women and Not Covering Birth Control Are Now on the Table in the Abortion Fight

Anti-abortion legislators are no longer just trying to chip away at Roe. They’re going after it with an ax.

by Carter Sherman
May 10 2019, 2:11pm

Anti-abortion legislators are no longer just trying to chip away at Roe v. Wade — they’re going after it with an ax. Sweeping proposals pushed in the past week in Georgia, Ohio and Alabama could, respectively:

  • lead women who get abortions to face murder charges,
  • strip coverage for some forms of birth control,
  • and ban abortion in almost every circumstance.

Many of these bills would directly challenge Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, and that’s exactly the point: Confident that the Court’s new conservative majority will overturn the landmark ruling, if given the opportunity, anti-abortion advocates are pushing for ever-stricter anti-abortion laws.

And they’re succeeding. Here are the details.

ALABAMA: Doctors who perform abortions could be imprisoned for 99 years

In its original incarnation, the Alabama bill didn’t include exceptions for pregnancies that result from rape or incest. That was a deliberate choice by its House sponsor, state Rep. Terri Collins, in order to improve the bill’s chances of one day ending up in front of the Supreme Court and being used to overturn Roe.

“I think fighting to overturn what I believe was a bad decision that allowed people to kill unborn children is worth a fight,” the Republican told the Associated Press last month.

The fight over those exceptions erupted on Thursday, on the state Senate floor. The state Senate Judiciary Committee had amended the bill to include exceptions for rape and incest, but some Republicans in the chamber speedily removed that amendment — leading lawmakers to accuse their colleagues of trying to force them into passing the bill.

“You’ve got 27 men over on the other side ready to tell women what they can do with their bodies,” state Sen. Bobby Singleton, a Democrat, told the Associated Press. “You don’t have to procedurally just try to railroad us.”

“You’ve got 27 men over on the other side ready to tell women what they can do with their bodies”

Though the vote on the legislation is tabled until next week, the bill’s backers are still confident that the Republican-controlled chamber can get the bill across the finish line. And regardless of whether the amendment ends up in the final version of the bill, its penalties for abortion are steep: While women who receive abortions wouldn’t be liable, doctors who perform abortions could still be imprisoned for 99 years.

Alabama’s abortion ban, as introduced, also equates abortion with the Holocaust. “More than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin's gulags, Cambodian killing fields, and the Rwandan genocide combined,” the text of the bill reads.

Alabama’s abortion ban, as introduced, also equates abortion with the Holocaust.

Last month, the Anti-Defamation League asked the Alabama House Health Committee to oppose the bill “because it contains language that is offensive to the Jewish Community and infringes on Alabamians' religious freedom,” CBS News reported.

The committee passed the bill anyway. So did the House.

GEORGIA: The so-called “heartbeat” ban gives “unborn children” “full legal recognition”

On Tuesday, Georgia Gov. Brian Kemp made Georgia the fourth state this year to sign into law a bill that would ban most abortions once a fetal heartbeat is detected — which can occur as early as six weeks into a pregnancy, before many people know they’re pregnant. (There are exceptions, like in the case of rape or incest; people who want abortions have to report those crimes to the police first.) But that so-called “heartbeat” ban isn’t the most astonishing part of the law: instead, that would likely be the part where it declares that “Unborn children are a class of living, distinct persons” who need “full legal recognition.”

That classification, of course, carries a whole host of implications. For instance, not only must Georgia now include any fetus with a detectable heartbeat in any “population-based determinations,” according to the text of the Georgia law, but it must also consider that such a fetus qualifies as a “dependent minor for income tax purposes.”

It also means that, legally speaking, aborting a fetus in Georgia constitutes committing a homicide, Slate reported.

Many anti-abortion restrictions that criminalize abortion specify that the doctor who performs the procedure, not the patient who receives it, is at risk of prosecution. But the Georgia law doesn’t make that distinction. Somebody who gets an abortion could thus be a party to murder, according to Slate (a charge punishable by life imprisonment or death). If someone travels out of state to get an abortion, she could be charged with conspiracy to commit murder (punishable by 10 years in prison). If she miscarries, she could be charged with second-degree murder (10 to 30 years).

A Georgia legislator also weighed in on Twitter to back up Slate’s interpretation of the law. “Criminal laws we have to outlaw murder, manslaughter, etc. are in place to protect ‘natural persons,’” wrote Jennifer Jordan, a Democratic state senator and a lawyer. “So yes, if woman were to have miscarriage or seek an abortion, she could be prosecuted under any of these. It would be up to [the] discretion of prosecutor.”

The law does represent “unknown territory” for Georgia, Jordan noted. And Planned Parenthood Southeast Advocates’ president and CEO, Staci Fox, pointed out that the bill’s implications — like whether women will be criminalized for seeking abortions — are not yet known.

“Nor will they be unless and until they are played out in court. Even legal experts can’t predict what a DA might do if this bill were to take effect,” she said in a statement. “Legal precedent is clear that abortion bans like HB 481 are unconstitutional and there are already more than a dozen anti-abortion cases working their way through the courts, so it is unlikely that this bill specifically will make its way to the Supreme Court.”

Georgia’s law will almost certainly be blocked by a lawsuit before it’s due to take effect in January. The American Civil Liberties Union and Planned Parenthood have already vowed to sue.

OHIO: A bill to stop insurance from covering abortion could affect birth control, too.

Ohio also recently passed a “heartbeat” ban, but its legislators are now debating yet another abortion-restriction bill, to stop most insurance companies from covering abortion services unless the procedure is necessary to save the mother’s life. The bill defines this kind of abortion as a “nontherapeutic abortion.” And as in Georgia’s bill, there’s some curious language: This one says that so-called nontherapuetic abortion “includes drugs or devices

used to prevent the implantation of a fertilized ovum.”

Such a broad definition could include common birth control methods like the pill and IUDs, Jaime Miracle, deputy director of NARAL Pro-Choice Ohio, told the Statehouse News Bureau. An IUD can cost as much as $1,300, according to Planned Parenthood.

In an interview with that outlet, the Ohio bill’s sponsor, Republican state Rep. Republican John Becker, said his bill wasn’t meant to go after birth control.

“When you get into the contraception and abortifacients, that’s clearly not my area of expertise,” he said. “But I suppose, if it were true that what we typically known as the pill would be classified as an abortifacient, then I would imagine the drug manufacturers would reformulate it so it’s no longer an abortifacient and is strictly a contraceptive.”

Hormonal birth control primarily works by stopping ovulation, but it can also block fertilization and implantation, explained Daniel Grossman, a doctor and the director of Advancing New Standards in Reproductive Health at the University of California, San Francisco. And so if anti-abortion legislators interpret Becker’s bill broadly — as Becker himself seems to be doing — birth control would potentially be banned from coverage.

“Abortion now means contraception if you use this definition,” Elizabeth Nash, senior state issues manager for the Guttmacher Institute, told VICE News. “If you want to use the pill, the patch, the ring, a hormonal IUD implant — yeah, doesn't sound like that's happening.”

That definition of “nontherapeutic abortion” also insinuates that personhood begins as soon as an egg is fertilized. It’s a more wide-ranging definition than even those in “heartbeat” bills, which indicate that personhood begins with the start of a heartbeat.

“Abortion now means contraception if you use this definition"

“They're looking to more this fetal dignity and fetal rights frame,” Nash said of abortion opponents. She traces this frame back to 2016, when the Supreme Court ruled that certain Texas restrictions on abortion clinics — like requiring abortion providers to have admitting privileges — made it too tough for women to get abortions. In the wake of that decision, anti-abortion activists have focused less on regulating the way abortion clinics are run and more on propping up the rights of the fetus, according to Nash.

“Even when it makes very little sense, as in this bill,” she said. “Because they're trying to build this case around fetal rights and dignity, and so they're trying to establish this standard throughout all the statutes.”

Becker’s bill also mentions a method to re-implant an embryo from an ectopic pregnancy — a pregnancy that takes place in a fallopian tube — within the uterus. There is no such procedure.

“It is 100% not a thing,” Grossman said.

Cover: Women hold signs to protest HB 481 at the state Capitol, Tuesday, April 2, 2019, in Atlanta. HB 481, which would ban most abortions after a fetal heartbeat is detected, has past both the House and the Senate and awaits a signature from Gov. Brian Kemp. (AP Photo/John Bazemore)