Republican lawmakers are passing increasingly tougher state abortion laws to test what courts will allow, even as not all opponents of the procedure endorse the strategy.
Arkansas this week adopted the most restrictive U.S. law by banning most abortions after 12 weeks of pregnancy. The move could backfire if a challenge reaffirms the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion, said Mike Gonidakis, president of Ohio Right to Life. He opposed a similar ban in his state because he thought the court would strike it down, further entrenching Roe.
“The end game isn’t the signature by the governor or the override of the veto,” Gonidakis said in a telephone interview from Columbus. “The end game is surviving the courts.”
Conservative lawmakers and governors elected since 2010 have passed a record 135 abortion measures, according to the Guttmacher Institute, a New York research group. Elizabeth Nash, its state issues manager, said politicians are taking two approaches: Some restrict access through measures such as waiting periods and difficult requirements for providers, while others try to ban abortions outright.
Roe permitted abortions until the age at which a fetus is viable outside the womb, generally 24 to 26 weeks. Now, states are vying to set the earliest possible ban on the the procedure, Nash said in a telephone interview.
“There’s this sense of one-upmanship going in the states,” Nash said. “If you asked me two years ago would a state do something like this, I would have said no.”
Lawmakers in nine states seek to outlaw most, if not all, abortions, in-vitro fertilization and some contraceptives by declaring that life begins at conception or banning abortions after as early as six weeks.
The Republican-controlled Arkansas legislature voted this week to override Democratic Governor Mike Beebe’s veto of a bill banning abortions after 12 weeks with exceptions such as pregnancies resulting from rape or incest, and to save the mother’s life.
The American Civil Liberties Union said the Arkansas measure is the most restrictive since Guam tried to ban abortion in 1990. Lawyers for women’s rights groups argued the new law has no chance of being upheld, because it so clearly breaks with legal precedent.
“The chances are zero,” said Stephanie Toti, senior staff attorney for the New York-based Center for Reproductive Rights.
Beebe said in his veto message the bill “blatantly contradicts” the U.S. Constitution.
Arkansas Senator Bart Hester, a Republican co-sponsor, said that while he’s not certain whether the law will survive an expected court challenge, the legislature took a moral stand.
“We have to stand up for what the people of Arkansas want, and the people of Arkansas are overwhelmingly pro life,” Hester said in a telephone interview.
A USA Today/Gallup poll released Jan. 22 found that 53 percent of Americans would preserve Roe v. Wade, while 29 percent would overturn it and 18 percent had no opinion.
Ten states, including Arkansas, have adopted abortion bans at about 20 weeks, according to Nash. She said such measures in Arizona, Georgia and Idaho are being challenged.
Idaho’s ban was overturned on March 6, and U.S. District Judge Lynn Winmill pointed to three Supreme Court cases from the 1970s and 1980s he said established that doctors, not judges or legislatures, should determine viability.
The Supreme Court hasn’t ruled on abortion restrictions since a 5-4 decision in 2007 upheld a federal law that makes it a crime to perform what opponents call “partial birth” abortions.
Justice Anthony Kennedy would almost certainly cast the pivotal vote in a future case. He wrote the 2007 decision, saying the government “may use its voice and its regulatory authority to show its profound respect for the life within the woman.”
Even so, he stopped short of questioning the 1992 Planned Parenthood v. Casey decision reaffirming the right to abortion and reiterating that states can’t ban the procedure prior to fetal viability. It was a decision he helped write.
“Kennedy has never yet indicated a move away from viability,” said David Garrow, a professor of history and law at the University of Pittsburgh. Laws aimed at influencing women’s choices, such as requiring ultrasounds before abortions, may fare better, Garrow said.
Wendy Parmet, associate dean at Northeastern University School of Law in Boston, said in an e-mail she isn’t surprised by the Arkansas law because it is “the next step in a trend.”
“What will be interesting is whether by going this far, anti-abortion opponents in Arkansas have overplayed their hand,” Parmet said in an e-mail.