At a church-style rally in Arizona, the state Republican lawmaker Walter Blackman described his “perfect” legislative proposal: to prosecute women who have abortions for homicide alongside the doctors who provide them.
Such a bill would be patently unconstitutional in the US – but for anti-abortion rights activists like Blackman that’s the point.
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“We are not going to amend this bill,” Blackman said in January. “This is a perfect bill. I just want to tell you that now.” Nine of Blackman’s colleagues signed on to the bill.
The bill was just one of nine more Arizona bills designed to ban, restrict or undermine abortion rights – ranging from funding religious crisis pregnancy clinics which oppose abortion to banning abortion at six weeks, before most women know they are pregnant.
“It’s nothing less than appalling,” said Dr Julia Kwatra, an obstetrician and gynecologist who has practiced in Scottsdale for 20 years. “This is just representing a full frontal assault on women’s healthcare in Arizona this legislative session.”
But this slew of legislation is just one state’s effort to redefine reproductive rights in a year of Republican party schism. In other states across the US – from Florida to North Dakota – legislation from Republican lawmakers seeking to undermine abortion rights is on the move. For anti-abortion activists, the goal has long been to challenge the supreme court decision that gave pregnant people the right to abortion 48 years ago: the landmark Roe versus Wade.
Each spring, especially in the last decade, Republicans have introduced restrictive abortion laws tailored to challenge that supreme court precedent by creating test cases. In 1973, Roe versus Wade provided women with a right to abortion up to the point the fetus can survive outside the womb, generally understood to be 24 weeks.
Abortion restrictions investigate the outer limits of that right, by creating laws that provoke reproductive rights advocates to sue, and for courts to consider their legitimacy.
“The more ambitious a restriction the court upholds, that will greenlight even more restrictions in the states,” said Mary Ziegler, a Florida State University law professor whose recent book, Abortion in America: A Legal History, tracked the history of the nation’s most important abortion cases.
“What we’ve been seeing is not what anti-abortion lawmakers want, but it’s been tailored to what they think the supreme court wants,” said Ziegler.
This effort is not meant to reflect the will of the majority of Americans, 77% of whom believe the supreme court should uphold Roe v Wade. The effort is meant to please a motivated, religious voter base, who have helped power Republican victories since the Reagan era. Trump played for the same “social conservatives” when vowing to appoint supreme court justices who would overturn Roe.
But since Trump rose to power, exactly how to do that has become a vexing question for the Republican party. Grassroots extremists came to power alongside Donald Trump, making common cause with some evangelical Christians, and demanding immediate gratification in bills like Blackman’s.
Bills that ban abortion, demand doctors perform the impossible and “reimplant” ectopic pregnancies, punish women and doctors under murder statutes and whose authors believe the fundamental legal principle of precedent should not apply to their cases have all shown up in state legislatures in the last couple years.
Bans in recent sessions have been “extremely aggressive”, said Hillary Schneller, a senior staff attorney for the Center for Reproductive Rights, and who is now fighting a Mississippi law that could ban abortion at 15 weeks. The state has appealed to the supreme court.
Recent bans have been, “saying the quiet part out loud – that they’re not just restriction abortion, they want to end access to abortion entirely”, said Schneller.
Until recently, most slates of new bills avoided this type of exposure. Establishment anti-abortion groups, like the National Right to Life Committee, preferred calculated legal strategies designed to elicit maximum supreme court interest and minimum voter outrage.
This year, since Trump lost re-election and the Republican party has split into warring factions, the spectrum of anti-abortion legislation has come to reflect that intra-party feud – a war between extremists and established anti-abortion strategists. In states like Mississippi, lawmakers have passed both kinds of legislation.
More extreme members of the anti-abortion movement are “making bids to control strategy for their movement”, said Ziegler. Extremists have shown, “They have legislators in a way we would assume only people like the National Right to Life Committee would have,” she said.
In Arizona, the architect of most of the state’s abortion restrictions over the last decade opposes Blackman’s bill. Cathi Herrod, president of the Center for Arizona Policy, told a local television station, “In the pro-life community, we love both the woman and her unborn child. Both are victims.”
These bans don’t come out of nowhere. They are the result of a sustained campaign from anti-abortion politicians
Hillary Schneller
Arizona is in the process of turning from red to purple – recently sending two Democratic senators to Washington DC and helping flip the presidential election for Joe Biden. Kwatra said she views the huge number of new restrictions as a “last gasp” from the state Republican party.
“It’s literally all men on deck” and “assault from every direction”, said Kwatra, adding that as more than 14,000 Arizonans have died of Covid-19, “our legislature is focused on taking voting rights away and healthcare rights away from women”.
One bill being championed in both Arizona and South Carolina is a “fetal heartbeat bill” that would ban abortion before most women know they are pregnant, without exemptions for rape or incest. As of 2019, nine other states had done the same.
Actually a misnomer, “fetal heartbeat bills” use the detection of “cardiac activity” in an embryo (the stage of development before a fetus) as early as six weeks. At that stage, embryos have a pulse, but not a fully developed heart to power a circulatory system. This kind of restriction would outlaw the vast majority of abortions.
The author of that bill is Janet Porter, an evangelical Christian based in Ohio. Alongside her anti-abortion advocacy, she is fiercely anti-gay, and promotes the baseless idea that the election was stolen from Trump.
In one interview in late January, she said Biden’s inauguration had the mood of a funeral. “Maybe that’s what it feels like to steal an election, and you know you’re not there rightfully so,” Porter said.
Her interviewer concurred: “I do believe God wanted Donald Trump to be re-elected, I think it was God’s will, yet sometimes in this fallen world the devil wins.”
Meanwhile, establishment groups like NRLC have pushed to ban specific procedures, such as dilation and evacuation, and to restrict abortion to earlier and earlier in pregnancy – such as in 15 weeks in Mississippi.
By banning specific procedures, which are not well understood by lawmakers or the public, anti-abortion advocates may see fewer objections to their efforts while still significantly eroding rights. A Kentucky version of the dilation and evacuation ban could come before the supreme court this session (just 4% of abortions overall).
Problematically, abortion rights advocates view extreme bills – such as Blackman’s – as providing political cover for potentially more damaging establishment bills.
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“These bans don’t come out of nowhere. They are the result of a very sustained campaign from anti-abortion politicians,” said Schneller.
In 2021, with a new Democratic presidential administration, not all efforts are focused exclusively on defending reproductive rights. The Biden administration rolled back several funding restrictions for reproductive health counseling domestically and abroad.
The American College of Obstetricians and Gynecologists has sued the US Food and Drug Administration to end in-person dispensing requirements for medication abortions during the pandemic, which the professional association has said are not medically justified.
In Oregon, a bill would require the state to examine whether specific healthcare mergers reduce access to reproductive rights. In Arizona, advocates are fighting to allow birth control to be dispensed without a prescription.
“We know how to decrease the abortion rate, while at the same time improving women’s healthcare,” said Kwatra. “We need to take care of women in all their complicated ways … which is really not hard to do.”
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This article was amended on 12 February 2021 to clarify a quote on the number of people in Arizona who have died from Covid-19.
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