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Conservative governors and legislators are using new highly restrictive abortion laws to get abortion back in front of what they believe is the most friendly U.S. Supreme Court in decades.
Sixteen states have passed or are scrambling to pass bans on abortion after a doctor can detect what they call “a fetal heartbeat in the womb,” usually at about six weeks, before many women know they are pregnant. That includes Georgia, where Republican Gov. Brian Kemp signed a “heartbeat bill” into law on Tuesday.
Separately, the Alabama Senate is poised to vote this week on legislation that could become the nation’s strictest abortion law, making it a felony to receive an abortion, with no exception for rape or incest.
In a countermove, lawmakers in a growing number of states are racing to amend state constitutions to provide a backstop for the possible overturn of Roe v. Wade, the 1973 Supreme Court ruling that established a woman’s right to an abortion.
Vermont on Tuesday passed a bill that would enshrine abortion rights in the state constitution, with similar legislation in the works in 12 other states, including New Mexico, Nevada and Rhode Island.
With the end of the state legislative season in sight, politicians on both ends of the political spectrum are preparing for the issue to come before the Supreme Court.
Tom McClusky, president of March for Life Action, which opposes abortion, said bills that ban abortion after six weeks “lay the groundwork for pushing the envelope of life even farther” and that the antiabortion movement is looking to Supreme Court Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh to provide a resolution to the debate that has divided America for decades.
“What we’d like to do is change the culture so that no family facing this situation would think of the option of abortion,” he said.
The American Civil Liberties Union and other critics including medical lobbies have called bans on abortions after six weeks — which have been struck down by at least two courts — draconian, unscientific and part of a deliberate strategy to pass increasingly radical laws in hopes of getting the issue before the U.S. Supreme Court. They have vowed to bring a lawsuit targeting the legislation — and promised electoral payback as well.
Leana Wen, president of the Planned Parenthood Action Fund, said in an interview that the Georgia legislation is part of a larger landscape of nearly 300 antiabortion bills introduced so far this year in 36 states. Many of them contain far-reaching provisions, such as one in Georgia that allows authorities to investigate women who miscarry, and one in Texas that would allow capital punishment for those receiving or performing an abortion.
“This is an extremely dangerous time for women’s health all around the country,” Wen said.
Georgia, which previously banned abortion after 20 weeks of pregnancy, is the fourth state to enact a six-week ban in 2019. Similar “heartbeat” bills are in the works in 10 other states — Missouri, Tennessee, Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina and West Virginia — according to the Guttmacher Institute. A federal judge has already blocked Kentucky’s law. Other courts struck down similar laws that were recently enacted in Iowa and North Dakota.
Signing the bill in Georgia on Tuesday, Kemp said he is upholding his promise to enact the “toughest abortion bill in the country.”
“Georgia is a state that values life,” Kemp said before putting his signature to the Life Act. “We stand up for those who are unable to speak for themselves.”
Doctors who oppose the legislation say that what appears to be a heartbeat at six weeks is simply a vibration of developing tissues that could not exist without the mother. That vibration is a medical term called “embryonic cardiac activity.”
The Georgia bill made national headlines after actress and women’s rights activist Alyssa Milano hand-delivered a letter to Kemp’s office last month to protest it. The letter was signed by 50 celebrities who vowed to boycott the state, which has a growing television industry, if the bill was signed into law.
Like some other versions, Georgia’s law includes exceptions for incest, rape and situations of medical futility or where the health of the mother is at stake. But unlike the others, Georgia’s says a fetus is a “natural person” and “human being” once a heartbeat is detected.
The ban passed by Alabama’s House last week intentionally excludes exceptions for victims of rape or incest to enhance its chances of getting to the Supreme Court, said Alabama state Rep. Terri Collins (R). She received a standing ovation at the Alabama State House in Montgomery, Ala., after her near-total ban on abortion passed.
“Just keep it at the heart of the issue: Is the baby in the womb a person?” Collins said at the time.
The law also criminalizes abortion, and doctors would face felony prison time of up to 99 years if convicted.
Alabama state senators are expected to debate the legislation next week, and while some have expressed concern over the “no exceptions” clause, they understand that it’s Collins’s strategy. Republicans control the Alabama Senate, holding 27 of 35 seats, and Republican Gov. Kay Ivey is expected to support the bill, though spokeswoman Lori Jhons said the governor is withholding comment as the bill works its way through the Senate.
Opposition to the bill has been fierce, and Democratic lawmakers walked out in protest before the final vote. During debate, they questioned the motive for an abortion ban in a state that has refused to expand Medicaid.
“I do support life, but there are some people that just support birth; they don’t support life,” said Democratic state Rep. Merika Coleman of Birmingham, Ala. “Because after a child is born, there are some things that need to happen. We need to make sure that child has adequate health care.”
Last month, the Kansas Supreme Court ruled that the state’s constitution fundamentally protects abortion rights, blocking a state law that aimed to restrict a common procedure.
At least nine states in addition to Kansas have constitutions that specifically protect a woman’s right to an abortion, according to state high court rulings: Alaska, California, Florida, Iowa, Massachusetts, Minnesota, Montana, New Jersey and New Mexico. Other states, including Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada, New York, Oregon and Washington have statutory protection for abortion rights, according to the Center for Reproductive Rights.
In January, New York lawmakers passed a law removing barriers for women seeking to get abortions later in pregnancy, and Virginia moved to do the same, sparking outrage from conservatives.
Emily Wax-Thibodeaux is a National staff writer who covers national news, with a focus on gender issues and social movements for the America desk. She is an award-winning former foreign correspondent who covered Africa and India for nearly a decade. Follow