THIS WEEK, THE US state of Alabama passed what has been called the toughest abortion ban bill in the US. It bans almost all abortions at any stage – even in cases of rape and incest.
It followed an earlier high-profile bill passed in Georgia, which was known as a ‘heartbeat bill’, and prevents abortion after a heartbeat is detected in a foetus. Georgia was one of seven US states to pass a bill on abortion restrictions in recent months.
You have undoubtedly heard of the famous Roe v Wade case in the US, which legalised abortion. So you might be wondering – why are new, stricter laws being put in place in some states? Has Roe v Wade been overturned? And what is the situation generally with abortion in the US?
Here is the state of play so far.
(We also discuss this topic in our latest episode of our podcast The Explainer, which you can listen to on iTunes, Spotify, Acast, Podbean, Podcast Republic or Soundcloud.)
This week, Alabama’s Republican Governor signed into law a bill which bans any termination of pregnancy, with anyone who performs an abortion liable to be imprisoned for 10 to 99 years.
Under the bill, abortions will only be legal if the life of the mother is in danger or the foetus has a fatal condition. Abortion is not allowed in the case of rape or incest.
Alabama Lieutenant Governor Will Ainsworth, who also presides over the state senate, called the bill’s passage a “strong step toward defending the rights of the unborn”.
Now that the bill has been signed into law, it will be enforceable in six months’ time.
However – it will be challenged in the courts over its constitutionality. Whichever side loses will undoubtedly appeal, and the court case could drag on. So the law will not be enforced any time soon.
And that’s the point of these bills – the hope among pro-life advocates is that a bill could reach the Supreme Court, and thus challenge Roe v Wade, the Supreme Court case which determined people have the constitutional right to access an abortion.
The legal system is different in the US to here. Each of the 50 states has its own constitution, and can set its own laws. So these states are allowed to set their own abortion law – once it is constitutional.
That’s why we have a case where liberal states can have more liberal abortion laws, and more conservative states can have more conservative laws.
Roe v Wade is a landmark US Supreme Court case from 1973, where the court ruled that the Constitution provides a fundamental ‘right to privacy’, and this covers making a personal decision about an abortion.
Under Roe v Wade, abortion is legal up to the point of viability (where a foetus could survive outside the womb).
The case was taken after a Texan woman, Norma McCorvey (aka Jane Roe) became pregnant for the third time aged 21. She was told she couldn’t access an abortion unless she had been raped, and so tried to do so by saying she had been raped.
But as no police documents existed to prove the alleged rape, she was unable to access an abortion this way. She then went to attend an illegal abortion clinic but found it was closed. She was referred to two lawyers, Linda Coffee and Sarah Weddington, who filed a suit in Texas which made it to the Supreme Court. McCorvey, in the meantime, gave birth and her child was put up for adoption. She later became an anti-abortion activist.
The case was a pivotal one for abortion in the US.
While Roe v Wade brought in a trimester framework under which states could bring in laws governing abortion (eg they could prohibit abortions entirely in the third trimester, as long as this didn’t include cases where an abortion could save the life of the mother), things changed slightly in 1992 under the Planned Parenthood v Casey case.
In this case, while Roe was reaffirmed, the trimester framework was replaced with fetal viability.
As said above, US states can pass their own abortion laws (once they are constitutional). A number of US states have recently passed bills known as ‘heartbeat bills’. These bills outlaw abortion once a heartbeat has been detected in a foetus, which is a much earlier point than viability.
These states are: Arkansas, Georgia, Mississippi, Ohio, Kentucky.
However, none of these bills are actually in force at this point. The Kentucky law was later blocked by a federal judge. The Arkansas one was brought in in 2013, and found to be unconstitutional in 2014. A challenge to the Mississippi law is to be heard later this month, and Ohio is expected to be sued by the American Civil Liberties Union (ACLU) over its bill. In Iowa and North Dakota, similar laws were found to be unconstitutional.
The ACLU of Alabama, the national ACLU, Planned Parenthood and Planned Parenthood of Southeast are all set to join together to challenge the Alabama bill.
What we’re seeing in the US right now is a new, stronger push for stricter abortion laws in the US, led by pro-life activists.
The Guttmacher Institute, which defends women’s rights, has said that 28 out of the 50 US states this year have introduced more than 300 new rules to limit abortion. As for last year, the Center for Reproductive Rights says that:
During the 2018 legislative session alone, almost 200 bills restricting abortion were introduced, 28 of which were enacted…
However, this is typically in conservative states – the liberal states are looking to safeguard the right to abortion. New York, for example, has introduced measures to ensure that should Roe v Wade be rolled back, abortion will still be allowed in its state.
These ‘heartbeat bills’ ban abortion once a heartbeat is detected in a foetus. The heartbeat can begin in what is known as the ‘foetal pole’ as early as six weeks into the pregnancy.
As pregnancies are dated from the first day of the pregnant person’s last period, being six weeks pregnant means around two weeks after a missed period.
This could mean the person may not realise they are pregnant, as they are not very far along in the pregnancy. Those opposed to the bill say this does not give pregnant women enough time to choose whether they want an abortion and access it before a heartbeat can be detected.
A transvaginal ultrasound is usually needed to detect a heartbeat at six weeks (not the typical ultrasound you think of, which is placed on the stomach).
As Roe v Wade determined that abortion can’t be banned before viability (which is on average 24 – 28 weeks of pregnancy), bills which seek to ban abortions at an earlier stage are being challenged on their constitutionality.
The heartbeat bill is connected to Faith2Action, a pro-life group which calls itself ‘the home of the Heartbeat Bill’. It drafted the model heartbeat bill which was first used in the state of Ohio. It says it chose the heartbeat as it is “the universally recognised indicator of life”.
Up until recently, pro-life groups tended to favour an incremental approach to changing abortion laws in different states – but when the Ohio Right to Life supported heartbeat legislation, it indicated that things had begun to change.
It said its decision was linked to the changing political landscape in the USA:
With the additions of Justices Gorsuch and Kavanaugh to the U.S. Supreme Court we believe this is the most pro-life court we have seen in generations. Now is the time to pursue this approach.
Should any abortion cases reach the Supreme Court again, the make-up of the judges in this court is seen as hugely important. US President Donald Trump is on record as being pro-life. He is also on record as saying that he wants to place pro-life justices on the Supreme Court.
There are nine judges on the Supreme Court, and until last year four were liberal, four were conservative and one was a ‘swing voter’. In an interview with Fox News host Bill O’Reilly in 2016, Trump said that he will appoint pro-life judges, “and we will see about overturning [Roe v Wade]“.
Trump’s Vice President, Mike Pence, is also pro-life and has said he wants to send Roe v Wade “to the ash heap of history, where it belongs”. Trump appointed his first pro-life judge to the Supreme Court when he nominated conservative Neil Gorsuch to replace fellow conservative Justice Antonin Scalia.
Then, he replaced Justice Anthony Kennedy with another conservative, Brett Kavanaugh. This was seen as significant as Kennedy was known as a conservative swing voter on the Supreme Court (meaning he didn’t always follow Republican lines when it came to voting).
So, this has led to concern among pro-choice groups in the US that Trump is appointing pro-life justices to the Supreme Court so that, should a law challenging Roe v Wade reach that court, there is a higher chance of the landmark case being overturned.
In June of last year, CNN reported that “some abortion opponents hope that Roe v. Wade will end up overturned or gutted — and they have already been working towards that moment”.
In order to challenge Roe v Wade, a law needs to be brought all the way to the Supreme Court to be challenged.
Some of the new abortion bills being passed are referred to as ‘trigger laws’ because of this intent to trigger a challenge to the 1973 decision.
However, the new bills might not reach the US Supreme Court. If they are challenged under the particular state’s constitution, appeals could end up in that state’s supreme court. Or they could be struck out in the state’s circuit courts – or the US Supreme Court could decide not to hear them.
The New York Times has reported that in some states, the pre-1973 statutes that criminalised abortion were not repealed. So if Roe v Wade was reversed, potentially these statutes would be in place – though it could depend on the state’s legal system and its approach to unenforced old laws.
However, there are some states – such as California, Connecticut, Hawaii, Maine, Nevada and Washington – which have passed laws that would still allow abortions to be legal even if Roe v Wade is overturned.
According to the Centre for Reproductive Rights:
If Roe v. Wade is overturned, in 22 states, the right to abortion is at the highest risk of loss—these states could ban abortion outright. In 8 states (including the District of Columbia), the right to abortion is at risk of loss, and in 21 states, the right to abortion appears secure.
We can see that there is currently a wave of states bringing in stricter abortion bills. Generally we can assume these bills will be challenged in court, by groups such as the ACLU.
The hope among pro-life activists is that at least one of these bills could make its way to the Supreme Court, where it could potentially lead to Roe v Wade being overturned.
There is a long road to get to this point, as it depends, as we said above, on whether the bill manages to progress to the Supreme Court. Even then, the Supreme Court judges will have to decide whether they even want to deal with it.
Alabama is unlikely to be the last state where the US will see stricter abortion laws being brought in.
Other states which have had such bills defeated may see more attempts by lawmakers, bolstered by the success in states like Alabama and Georgia. Meanwhile, aside from the likes of ‘heartbeat bills’, there are other ways that states can restrict access to abortion.
Pro-choice groups refer to these as ‘TRAP Laws’, or ‘targeted restrictions on abortion providers’. They include building requirements, transfer agreements between clinics and local hospitals, or requiring abortion providers to be located a certain distance from a hospital. Even when abortion is legal in a state, it might not be accessible to all: there are six US states which have one abortion clinic.
But could Donald Trump decide to ban abortion outright? We asked NUIG law lecturer Larry Donnelly, who told us:
He cannot do that on his own. The only way that that could be done legislatively would be a constitutional amendment, that is getting the Congress of the United States and then state legislators, which would require a two thirds vote from both houses of Congress and then four fifths of the state legislators in the United States to approve an amendment to ban abortion or to effectively overturn Roe v Wade through the constitutional amendment process. That’s not going to happen.
Even if the new push for heartbeat bills does not result in any cases reaching the Supreme Court, what it has done is put the issue of abortion laws back to the forefront of the US consciousness. It has shown that once-’fringe’ activity can become more mainstream.
With such strong and opposed opinions on the two sides of the debate, this issue will not go away any time soon – and campaigners on both sides will be wondering whether the next steps lead all the way to the Supreme Court.
Listen to more on this topic on the latest episode of our podcast The Explainer:
The Explainer / SoundCloud
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