“Heartbeat” Laws Take the Abortion Fight to the Next Level

The Governor of Georgia just signed into law a restriction on all abortions of fetuses older than six weeks of gestational age, for that is typically the earliest a fetus’s heartbeat can be detected — the triggering factor in the abortion ban. How did we get here? Let’s have a look.

In the midst of a post “Summer of Love” cultural wave of progressivism that also brought ashore substantial environmental protection laws and civil rights and social welfare advancements, the landmark case of Roe v. Wade was decided in 1973 by the US Supreme Court, declaring unconstitutional state laws that criminalized or otherwise restricted access to abortions, but contrary to popular belief the decision was not without its limitations. The Court held that the Bill of Rights in the US Constitution implies that the people possess the right to privacy, and it is this right to privacy along with our Due Process rights safeguarding our liberty that protect a woman’s freedom to choose whether to undergo an abortion of her fetus prior to the stage of its viability, i.e., when the fetus can survive outside the uterus. Since the Roe decision, the right to undergo an abortion has been further limited by state laws and Supreme Court decisions.

Sequential restrictions to abortion rights have reflected drastic cultural changes since the 1970s era of so-called decadence which fomented decades of cultural backlash in the form of multiple Republican Presidential administrations and the neo-Conservative administrations of Presidents Clinton and Obama. The Trump presidency is a natural continuation of the trend towards conservativism in the United States, particularly now that Fundamentalist Christianity, white nationalism, and aggressive sexism are in a full throttle resurgence against the progressive human rights agenda that can be seen in various anti-racist, anti-sexist, and multiculturalist movements.

To start, the 1980 case of Harris v. McRae upheld the Hyde Amendment to the U.S. Social Securities Act, thereby permitting the federal government to limit using Medicaid funds for abortions except in the cases of incest, rape, or life endangerment. In Planned Parenthood v. Casey (1992), the Supreme Court reduced the level of judicial scrutiny that a court should use in reviewing a challenge to any law restricting abortion, making it easier for restrictive laws to be considered Constitutionally valid. Thus, the Casey ruling allowed states to place various restrictions on abortions so long as such limits do not place an “undue burden” on a woman’s right to undergo an abortion. As what is considered an “undue burden” is open to interpretation, the Casey decision obviously opened the flood-gates to various restrictions and obstacles to abortions, including requirements for pre-abortion counseling (which often includes requiring women to watch horrifying abortion videos or listen to lectures meant to dissuade her from having an abortion) and parental permission for juveniles seeking abortions (which are quite problematic in cases of parental sexual or physical abuse of the child, and other dire financial and emotional consequences for minors living with parents religiously or philosophically opposed to abortion). Then, the 2007 case of Gonzalez v. Carhart placed restrictions on “intact dilation and extraction”, aka “partial birth abortions”. Though partial birth abortions accounted for .17% of all abortions in the country in the year 2000, the Supreme Court via its decision in Carhart flagged to the nation that its two new justices appointed by Pres. George W. Bush, namely Chief Justice Roberts and Justice Alito, had created a new conservative majority that was more welcoming to restrictions on abortion. The country heard this message loud and clear. Since the Carhart decision, there have been a host of state laws restricting abortions, with anti-abortion lawmakers emboldened by the new conservative makeup of the Supreme Court. With the addition of Trump appointees to the Supreme Court, namely Justices Gorsuch and Kavanuagh, who have favored restrictions on abortions in their historical judicial decisions, not to mention the myriad of conservative judges appointed by Trump to the federal courts, states seeking to restrict abortion rights are promulgating laws doing just that without their past fear of having such laws overturned by higher courts.

In recent years, there has been a building nationwide effort to make it increasingly difficult to access an abortion. Ready for a shock? Here are the current number of abortion clinics per state in some of the most restrictive states in our country: Alabama, 3; Mississippi, 1; Louisiana, 5; Kansas, 4; Nebraska, 3; Wisconsin, 4; South Carolina, 3; Kentucky, 1; Virginia, 2; West Virginia, 1; North Dakota, 1; South Dakota, 1; Wyoming, 1; Idaho, 3; Utah, 2; Montana, 5; Oklahoma, 3; Arkansas, 1; Missouri, 1; New Hampshire, 4; Maine, 4. In a few other states, it’s quite a different picture: California, 152; New York, 95; New Jersey, 41; Florida, 71. Largely, however, the majority of states are nowhere near these higher numbers. We have a lot of work to do to make affordable and safe abortions accessible to the people most often seeking them: women in their 20s, about half of whom live below the national poverty line and a quarter of whom are low-income.

The legal hurdles to abortion are increasing in quantity and becoming more aggressive in nature: as of March 27, 2019, there are over 250 bills in state legislatures restricting abortion, and seven states and counting have proposed total abortion bans! Several states have required doctors to perform ultrasounds prior to an abortion, making the mothers virtually meet the fetus they are about to abort. Through the ultrasound’s monitors, the mothers see the fetus moving around, they hear its heartbeat, and they may even be encouraged to rethink or reverse their decision by required counseling lectures and 1 to 3 day waiting periods.

Most states require the abortion to be performed by a licensed physician and/or in an actual hospital (rather than say a Planned Parenthood clinic), thereby reducing abortions performed by registered nurses and nurse practitioners or in abortion clinics which can be far more abundant, less expensive, and arguably equally capable of performing this routine procedure, as they regularly do in California. In certain states, such restrictions effectively eliminate the possibility of an abortion because there simply are no legal options available for women. “In 2014, 90% of U.S. counties had no clinics providing abortions. Some 39% of women of reproductive age lived in those counties and would have had to travel elsewhere to obtain an abortion.” (“State Facts About Abortion: Alabama”, Guttmacher Institute, May 2018.)

Most states also proscribe abortions after a certain gestational limit, often as early as 20 weeks, otherwise not after the point of viability. While most states consider the point of viability to be at 24 weeks, a fetus’s survival rate at that point is a mere 39%, thereby undermining the viability argument and rather pointing to the true motivations for anti-abortion laws such as religious fundamentalism and pseduo-benevolent sexism. At 25 weeks the survival rate is 50%, and at 26 weeks the rate is 80%. (See “Premature Birth and Survival Statistics”, K. Danielsson, Verywell Family, May 15, 2018.) From 20 to 23 weeks, a fetus is essentially non-viable, so many states set the 20-week limit based on other pretextual arguments such as the scientifically debunked notion that a fetus can feel pain at this stage or the intrusive dogma that there is an increased likelihood of complications for the mother herself if she aborts at this stage.

The restrictions do not end there. Some states effectively require a woman to make two separate trips to a facility to secure an abortion, most states restrict public funding for abortions, some states restrict insurance funding for abortions, most states permit individual health care providers and/or institutions to refuse to provide abortions, and most states require parental involvement in cases of minors seeking abortions. Currently, there are additional and more severe restrictions noted in various state legislation, including laws that effectively ban second term abortions by outlawing the medical procedures that make such abortions possible, laws that make abortions illegal if they are sought because the fetus is likely to be born with disabilities, and even some laws like Georgia’s that ban abortions as early as six gestational weeks or at the first sign of a fetus’s heartbeat.

Though there well may be entirely religious and sexist ideologies responsible for anti-abortion politics, much of the abortion debate’s explicit language focuses on a few key issues, including privacy rights versus public laws, the question of when life begins, methods of abortion (e.g., surgery, intact dilation and extraction, the abortion pill, the morning-after pill), restrictions on public health funds for abortions, the question of when a fetus is viable, valid exceptions to abortion restrictions (e.g., incest, rape, health of the baby, health of the mother), and the need for consent from other parties (e.g., a doctor, a judge, a minor woman’s parents, or perhaps equally importantly the fetus’s father) versus abortion being the sole choice of the mother.

Passionate arguments exist on both sides of this debate. According to the Pew Research Center 58% of Americans say abortions should be legal in all or most cases, and 37% say it should be illegal in all or most cases, with 76% of Democrats and 60% of independents supporting the right to an abortion and 59% of Republicans saying the opposite.

Here are some facts that matter. While the majority of conservative state abortion restrictions focus on a 20-week limit, according to CDC data from 2015 98.7% of abortion procedures occur before 20 weeks, with only 1.3% occurring after 21 weeks. According to a 2018 NIH study, on average the USA abortion complication rate is 2%, with deaths occurring in less than 1 out of 100,000 abortions. The takeaway is that our national abortion policies as they currently stand are functioning reasonably well, and this is due to a legal infrastructure that permits safe abortion procedures, sex education, access to contraception, and a thriving medical and health insurance industry. Of course, as we can learn from anybody who has personally dealt with an unwanted pregnancy, hurdles in accessing a safe and affordable abortion, or serious abortion related complications, we can and should do better than this in the USA.

If we remove any of these beneficent factors that we enjoy in our nation, as Georgia’s new “heartbeat” law will do as of January 1, 2020, we can logically expect to experience more abortion related complications and unwanted pregnancies and their attendant financial, psychological, and societal negative effects. In the horrifying statistics provided by the World Health Organization in 2018, we see the dire consequences of insufficient access to sex education, contraception, early pregnancy medical care, and safe and legal abortions in poor nations, where nearly 25 million unsafe abortions occurred between 2010 and 2014, resulting in about 7 million related hospitalizations costing nearly half a billion US dollars in medical treatments alone, and where deaths occurred between 220 and 520 out of 100,000 abortions — hundreds of times higher than the USA average! These numbers do not even speak to the immense life-changing impact of an unwanted pregnancy on a single mother, especially where the child is born with substantial disabilities, where the mother lives in poverty, and where the mother is isolated by her family and society for a host of reasons. As a society, we should be concerned with not only the moral factors in allowing such circumstances to occur, but also with the very real statistical burden unwanted children living in poverty place on our social welfare infrastructure and too often on our criminal justice system.

Any abortion legislation enacted in the USA and its states should carefully consider the science and likely public health, financial, and societal consequences of laws restricting safe, legal, and widespread access to contraception, sex education, early pregnancy medical care, and abortions. Of course it makes the most sense to prevent unwanted pregnancies through widespread contraception and sex education, first and foremost. Nearly all adults in the USA favor sex education being taught in schools, and the same could be said about promoting good access to contraception with most adults favoring mandatory insurance coverage of even prescription birth control. Seventy percent of Americans now even support Medicare for All (thanks to Senator Bernie Sanders!), and that is a huge step in the right direction to prevent unwanted pregnancies via public funding of contraception.

Governor Kemp’s decision to effectively ban all abortions in Georgia is a regressive threat to the life, liberty, and pursuit of happiness of unknowing expectant mothers and a serious blow to the public welfare. Worse still, Georgia is not alone. Ohio, Mississippi, Kentucky, Iowa, and North Dakota have all enacted similar “heartbeat” laws. The ACLU and others are fighting such laws in court, but who knows what we can expect from this and other abortion related litigation now that the federal courts and the Supreme Court have more Republican appointees than Democratic ones. This is all the more reason to take seriously the 2020 election and to consider the abortion stance of each of the candidates.

It could get even worse for abortion rights. The Alabama Senate is now considering a bill that just passed its House of Representatives which outlaws abortion entirely by criminalizing it with a minimum 10-year prison term for doctors who perform the procedure, noting only an exception for when the mother’s life is in jeopardy but not including exceptions for rape or incest. “Now that President Donald Trump has supercharged the effort to remake the federal court system by appointing conservative jurists who will strictly interpret the Constitution, I feel confident that the U.S. Supreme Court will overturn Roe and finally correct its 46-year-old mistake,” said Lt. Gov. Ainsworth.

There is hope! The original Roe decision was a reflection of the cultural progressivism of the early 70s. So yes, cultural movements can influence legislation, though not always as we may like. Our current grassroots progressive movement can bring us far more powerful legislative changes than we may believe, including not only to abortion rights but also in regards to a panoply of other human rights. Just think of the positive power that social media (#MeToo, #BLM), civil protest (Occupy, Women’s March), and progressive media (HuffPo, Daily Show, Maddow, Democracy Now!) have exerted in the 2018 midterm elections in flipping the US House of Representatives as well as many state and local political seats around the country. It can be done!

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Exclusive Legal Representation for Discerning Clients. Serving CA, NY, WA, MA, DC. Business, Criminal, Divorce, & Education Law. www.AliEsq.com

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