The last year saw a number of legislative pushes enacted across the country severely restricting women’s access to abortion services, prompting TIME Magazine to run a much talked about January cover story, subtitled: “40 years ago, abortion-rights activists won an epic victory with Roe v. Wade. They’ve been losing ever since.”
According to the Guttmacher Institute of New York, which promotes sexual and reproductive health, the number of restrictive qualifiers states have enacted to abortion services has been steadily increasing in recent years. Eight states restrict insurance coverage, and 17 require counseling. 26 have mandatory waiting periods, and 38 require parental involvement for minors. 46 allow private health care providers to refuse to cover the service, and 39 requires a licensed physician to perform them.
Anti-abortion legislators have long been attempting to chip away at Roe v. Wade, the landmark 1973 Supreme Court decision that stipulated that abortions were legal until a fetus is viable for life outside the womb — usually agreed to fall between 24-28 weeks of gestation. Even Justice Ruth Bader Ginsburg, one of the most liberal justices on the Roberts Court, expressed regrets that Roe may have gone too far, making it an easy target for anti-abortion activists.
“That was my concern,” she said at an interview last Saturday at the University of Chicago, “that the court had given opponents of access to abortions a target to aim at relentlessly. My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”
But momentum may now be swinging in the opposite direction, as lawyers and women’s rights advocates are fighting back at some of the country’s most restrictive anti-abortion laws. Here are three states swinging back:
A new law titled the “Arkansas Human Heartbeat Protection Act,” or Act 301, was passed this past March by conservative legislators overriding a veto attempt by Democratic Governor Mike Beebe. The new language restricted the definition of “viability” to the detection of a fetal heartbeat using an abdominal ultrasound — or just 12 weeks gestation.
Exceptions are made for cases of rape, incest, or threat to the mother’s life.
A U.S. District Judge Susan Webber Wright in Little Rock has denied a request from the state’s attorney general to dismiss a lawsuit filed by Louis Jerry Edwards and Tom Tvedten, two doctors affiliated with Little Rock Family Planning Services. They claim that 12 weeks is far too early for fetal viability, and claim that 20% of abortions fall after that window.
“This law is one of the most dangerous assaults on women’s health that we’ve seen in decades,” says Rita Sklar, director of the American Civil Liberties Union’s Arkansas chapter. “We may not all agree about abortion, but we can all agree that this complex and personal decision should be made by a woman, her family and her doctor, not her politicians.”
Stephen Sheppard, the associate dean of the University of Arkansas School of Law, anticipates the law being struck down. It “has no chance of surviving a careful constitutional challenge,” he explains. “You have to protect the rights of women, and this law does not.”
2. North Dakota
On March 15, North Dakota state legislature passed a series of three anti-abortion bills, later signed into law by Republican Governor Jack Dalrymple, making the state the most restrictive in the country on the issue. The new laws, set to take place on August 1, push back the deadline on abortion to six weeks’ gestation (the amount of time necessary to detect a fetal heartbeat using a transvaginal ultrasound), prohibit abortions due to gender preference or genetic disability, and mandate that doctors performing abortions must have admitting privileges in nearby hospitals.
“The added requirement that the hospital privileges must include allowing abortions to take place in their facility greatly increases the chances that this measure will fail a court challenge,” Gov. Dalrymple admitted. “Nevertheless, it is a legitimate and new question question for the courts regarding a precise restriction on doctors who perform abortions,” he said, and is “a legitimate attempt … to discover the boundaries of Roe v. Wade.”
Reproductive rights advocates are fighting back this week, as the Center for Reproductive Rights in New York filed a suit on behalf of the state’s lone abortion clinic, the Red River Women’s Clinic in Fargo.
“It’s purpose is to shut down the clinic,” the complaint read, referring to the mandate that doctors have admitting privileges.
Of the three hospitals in Fargo, one is a veteran’s hospital, one has an affiliation with the Roman Catholic Church, and one requires that a doctor admit at least five patients a year. The center relies on visiting doctors flying in from other states, and says that it’s inability to meet the requirement would force it to close.
Tammi Kromenaker, director of the clinic, notes that after thousands of procedures since the clinic opened in 1998, only one patient had required an ambulance ride to the emergency room.
This last state should come as no surprise, as one of the most socially conservative in the country. Like North Dakota, Mississippi’s has only one abortion provider, the Jackson Women’s Health Organization, and faces similar threats from recent legislation with regards to doctors’ admitting privileges that could force it to shut down.
“That’s what the anti’s want to do,” explains Diane Derzis, director of the clinic. “They want Roe v. Wade revisited.”
Like Red River, Derzis’ center relies on out-of-state doctors flying in to perform abortion services; the center says that attempts to get them admitting privileges nearby have been unsuccessful.
“Maybe I should do a questionnaire now for these patients,” Derzis says. “‘What would happen if I weren’t here?’ I think we all know the answer. Those that have money will be able to go out [of state]. Those that don’t are going to have babies.”
Dr. Willie J. Parker, an OB-GYN from Chicago who routinely travels to the clinic, routinely expresses his frustration over Mississippi’s policies to his patients.
“It’s very important to me to make sure that women who look like my mother, sisters or friends that I grew up with have access to this care,” Parker explains. “It shouldn’t be that simply because you live in Mississippi that you don’t have the same health care you can get if you lived in California.”
The clinic has filed a federal lawsuit seeking to permanently block the restriction on admitting privileges.
“My goal, of course, is to shut it down,” says Republican Governor Phil Bryant of the clinic.
And if the courts rule on the side of the state, that may be exactly what happens — effectively halting abortions in a U.S. state for the first time since 1973.