Since Trump appointed new conservative judges, the Supreme Court now has a conservative majority. Many like-minded states see this as an opportunity to criminalize abortion.
With one eye trained on the highest court of law, one American state after another is taking measures this year to limit the legal right to abortion.
Last week, the governor of Georgia signed a so-called heartbeat law, which determines that every abortion performed after the sixth week of pregnancy — the moment that the heartbeat of the fetus can be detected — is murder and must be punished as such. Women who undergo illegal abortions can be sentenced to life in prison or even the death penalty. Kentucky, Mississippi, Louisiana and Ohio have already preceded Georgia.
In Alabama on Thursday, the Senate was ready to go one step further and adopt a law that prohibits abortion in every stage of pregnancy, unless the health of the pregnant woman is in “serious” danger.
Doctors who perform abortions could be sentenced to 99 years in prison. When some Republicans attempted to exclude an amendment addressing rape and incest from the bill, turmoil broke out, after which the vote was postponed. “You’re going to get your way,” Democratic Sen. Vivian Davis Figures said. “At least treat us fairly and do it the right way.”
The confluence of abortion-limiting legislation is no coincidence. In the U.S., the right to terminate a pregnancy was established in 1973 by the Supreme Court in the case of Roe v. Wade. Several dozen attempts to overturn this decision have been halted by the court, which has sustained Roe v. Wade.
What do all these oppressive new laws in various states mean, if the right to abortion is defined nationally? They are warning shots. The legislators know that their rules will be challenged in the courtroom — that happens regularly now — and that they can ultimately end up in the hands of the U.S. Supreme Court. The deputy governor of Alabama, a Republican, confirmed that reasoning in a statement on Thursday.
Legislation aimed at limiting the the option of abortion was, until recently, mainly a matter of ingenuity. Because the chance to nullify Roe v. Wade was considered slight, lobby groups and conservative politicians looked for ways around it.
The funding of abortion clinics was hampered. In 33 of the 52 states, it is forbidden to use government money for abortions, with the possible exception for cases involving rape or incest. In South Dakota, even that is considered insufficient due cause. In that state, an abortion may only be performed with government money if the life of the woman in question is in danger. In 11 states, it is forbidden for insurance companies to reimburse an abortion treatment.
Other ways to make abortion more difficult include setting very high demands for clinics, applying time limits (no abortion after 18 weeks of pregnancy) and imposing extra demands on the doctor. Eighteen states have rules that force a woman to undergo an extra consultation before she has an abortion. In 13 of those states, it is mandatory to explain in that consultation that a fetus feels pain.
New Judges in the Supreme Court
But since October, anti-abortion groups have come to hope for a general ban on interrupting pregnancy. In October, Brett Kavanaugh was confirmed to the Supreme Court, giving it a conservative majority.
During his presidency, Trump has been able to appoint two judges to the Supreme Court. During his presidential campaign, he promised to appoint so-called anti-abortion judges wherever possible. The confirmation of Kavanaugh, as well as the earlier appointment and confirmation of Neil Gorsuch, is giving the anti-abortion movement a sense of self-confidence.
States that have a conservative majority have already prepared potential laws in anticipation of the moment that the Supreme Court decides to drastically restrict abortion or even enact a fundamental ban. Oklahoma already has a law similar to Alabama's, which is simply called the “Abolition of Abortion in Oklahoma Act.”
In Texas, an anti-abortion law that was rejected in 2017 was reintroduced at the beginning of this year. Under this proposed law, the life of a fetus starts at the moment that sperm and egg come together. Neither pregnancy as a result of rape or incest nor severe disabilities for the baby is grounds for allowing abortion. The law in Georgia not only prohibits abortions from the first detected heartbeat but also determines that the fetus is a resident of the state from that moment on and, for example, will have to be counted in a census.
A Progressive Majority After All?
The question is whether these eager states are overestimating their chances. In February, the Supreme Court was presented with a sidetrack law from Louisiana. This law required that an abortion only be performed by a doctor who is also allowed to practice in a general hospital located within 30 miles of the abortion clinic. In a 5-4 ruling, the bill was blocked by the highest judges. And most importantly, according to the American media, Chief Justice John Roberts, usually one of the conservatives justices, took the side of his progressive colleagues in that ruling.