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After Leak, Some State Legislators Propose More Restrictive Abortion Laws

A pedestrian and their dog walk past fencing that blocks off the area around the U.S. Supreme Court Sunday, May 8, 2022, in Washington.
A pedestrian and their dog walk past fencing that blocks off the area around the U.S. Supreme Court Sunday, May 8, 2022, in Washington.

With the Supreme Court expected to do away with a federal guarantee to abortion access in the coming months, legislators in some states are proposing significantly more restrictive laws governing reproductive health.

The proposals vary from outright criminalization of abortion to measures that make getting an abortion nominally legal but practically impossible. Some states are exploring measures that would make it illegal for residents to travel to a state in which abortion is legal to have the procedure.

In addition to introducing more restrictive laws, some state lawmakers are also discussing ways to expand the social safety net to offer more financial and social support to pregnant women carrying children to term, even if they are doing so involuntarily.

"States aren't waiting for the Supreme Court to ban abortion; they're not waiting for a final decision on Roe," Ianthe Metzger, director of state advocacy communications for Planned Parenthood Federation of America, told VOA. "They're doing it now. And the Supreme Court has proven that they're not going to step in to stop any of this. … It's all happening already."

Anti-abortion lawmakers were adamant about pressing their advantage, speaking to the Texas Tribune, Texas state Representative Briscoe Cain said, “I think I can speak for myself and other colleagues that align with my policy beliefs — we’ll continue to do our best to make abortion not just outlawed, but unthinkable.”

Momentous leak

Last week, a leaked draft of a Supreme Court opinion demonstrated that a majority of the court favors overturning the 1973 decision in Roe v. Wade. That case made it illegal for states to ban abortion before the fetus is able to live outside the womb. That is generally understood to be between the 22nd and 24th week of pregnancy.

Were the draft opinion to take effect, it would mean that the federal government is silent on the question of abortion's legality, leaving the ability to regulate it entirely to the states. It's a project that lawmakers in a number of state capitals already had well underway.

In recent years, particularly after President Donald Trump's appointment of three conservative justices changed the ideological balance of the court, states have been passing laws meant to push the boundaries of the Roe decision.

Last year, Texas banned abortion after six weeks of pregnancy — before many women even realize they are pregnant. In December, the high court allowed the Texas law to remain in effect pending legal challenges.

That same month, the court heard arguments in Dobbs v. Jackson Women's Health Organization, a case challenging a Mississippi law banning abortion after 15 weeks, or about two months before the cutoff established by Roe.

The draft decision in the Dobbs case is what leaked last week.

New laws proposed

Thirteen states have "trigger bans" in place that will automatically restrict abortion if Roe is overturned. Other states have laws in place that could be brought into effect in short order to restrict abortion. All told, according to the Guttmacher Institute, a reproductive rights research organization, 26 states will reduce or eliminate access to abortion if Roe is overturned.

The day after the leak, for example, Oklahoma's governor signed a law virtually identical to the six-week ban in Texas.

Both the Texas and Oklahoma laws provide no exceptions for pregnancies resulting from rape or incest. The same is true for laws passed in Arizona, Florida, Kentucky, Louisiana, Missouri, South Dakota and Tennessee.

Officials defending the lack of exceptions for rape and incest victims point out that those kinds of pregnancies represent a very small percentage of total abortions.

Appearing on CNN on Sunday, Mississippi Governor Tate Reeves said, “When you look at the number of those that actually involve incest, it’s less than 1 percent. And if we need to have that conversation in the future about potential exceptions in the trigger law, we can certainly do that.”

Many of the trigger bans in place would make it a felony to provide abortion services, including those imposed by Arkansas, Kentucky, Missouri, North Dakota, Tennessee and Utah.

Metzger, of Planned Parenthood, said that it is important to remember that many of these state laws will be challenged in court.

"States are sort of going to the extreme and proposing things that we've never seen before," she said. "But because this is so new, it's untested, so we don't know if this will even hold up in court."

Abortion as murder

Multiple other states have signaled the intention to use the freedom from Roe to enact new kinds of restrictions.

One of the most radical is a provision being considered in Louisiana, which would grant constitutional rights from the moment of fertilization. The proposal would classify abortion as murder, making anyone involved in the process, including the pregnant woman, liable to face charges.

Experts warn that the bill would make certain kinds of contraception illegal. It would also raise serious questions about the practice of in vitro fertilization, in which some fertilized eggs are typically discarded.

In an email exchange with VOA, Elizabeth Nash, a state policy expert with the Guttmacher Institute, wrote, "Louisiana has among the most restrictive abortion laws in the country and it already has a trigger ban and a six-week ban, and the constitution does not protect abortion rights."

Nash continued, "This new legislation goes even further by establishing abortion as murder and potentially restricting self-managed abortion. Several states already define pregnancy starting at conception in their abortion laws and through their fetal homicide statutes. The ban could affect the provision of infertility service, and in this political climate that is so hostile to reproductive health, Louisiana along with other states may look to limit access to contraceptive services."

Medication bans considered

A number of states are considering bans on medications that can be used to prevent or end a pregnancy. Lawmakers in Idaho, for example, said they are considering bans on so-called "Plan B" medications as well as medication abortion.

Plan B, or the "morning after pill," are medications that a woman can take shortly after intercourse that prevent a fertilized egg from being implanted in the uterus, preventing pregnancy. Medication abortion is the use of a combination of two drugs that combine to end an early-stage pregnancy.

Both Plan B and medication abortions have been in common use for many years and are regarded as so safe that they can be used at home.

Blocking travel for abortions

While some states may succeed in completely banning legal abortion within their borders, it will remain possible for people seeking abortions to travel to states where the procedure is legal.

Lawmakers in at least two states, Missouri and Texas, have proposed plans that would make it possible for their residents to sue out-of-state doctors who perform abortions on state residents, even if the procedure is legal in the state where it takes place.

In Texas, lawmakers have threatened legal action against charity organizations that provide funding for women who need to leave their home states in order to receive abortion services.

Nash, of the Guttmacher Institute, said, "It does not appear that a ban on out-of-state abortions would be constitutional."