Anti-abortion battleground broadens as US states fight on ‘non-medical’ grounds

Two arch-conservative states in the American Bible belt have this week formed a new “non-medical” front in the battle over reproductive rights, with laws that sharply restrict a method routinely used to perform second-trimester abortions.

Anti-abortion politicians crafting and passing the new restrictions in Kansas and Oklahoma have reactivated a broader state-by-state campaign, mirroring similar efforts to outlaw abortion at 20 weeks in over a dozen states across the country – even though they crumbled almost immediately among Republicans at the federal level. Doctors call the laws “deeply disturbing”, and pro-choice advocates have quickly dismissed them as downright unconstitutional.

The laws, inspired by model legislation backed by lobbyists at the National Right to Life committee, an anti-abortion group, ban what the NLRC labels “dismemberment abortions” – a concocted term that refers to a common and safe procedure of dilation and evacuation.

“The Unborn Child Protection From Dismemberment Abortion Act is the first of what we hope will be many state laws banning dismemberment abortions,” Carol Tobias, president of National Right to Life, said in a statement. “This law has the power to transform the landscape of abortion policy in the United States.”

Flanked by two large photos of fetuses, Kansas governor Sam Brownback signed his state’s new “dismemberment” bill into law on Tuesday. The following day, Oklahoma’s legislature sent a similar bill to Governor Mary Fallin, who has already signed a host of anti-abortion bills into law. Analogous legislation has been proposed in Missouri, South Carolina and South Dakota.

If the NRLC has its way, similar bills will be introduced in every US state, the group has said. The anti-abortion movement has made significant gains at the state level, especially after conservatives swept the 2010 midterm elections and used their newfound grasp over statehouses to push a flurry of legislation that chips away at abortion rights.

A report by the Guttmacher Institute last year found more than 200 anti-abortion measures enacted across 30 states over the last three years. Twenty-two states adopted 70 different restrictions in 2013 – by contrast, just 189 abortion restrictions were enacted during the entire previous decade, based on data from 2001 to 2010. The pace of anti-abortion restrictions introduced in the so-called “laboratories of democracy” – state legislatures – since then, it appears, has only increased.

The restrictive measures have ranged from new regulations on doctors and clinics and limits on medication abortions, to denying coverage under insurance. Arguably the most prevalent are bills that seek to ban late-stage abortions at 20 weeks, the stage at which pro-life groups have argued that fetuses feel pain. Medical professionals and several studies have disputed that claim, but that has not stopped a host of states from adopting such bans even as courts question their legality.

In a rush of statehouse activity from 2011 to date, 20-week abortion bans passed in Kansas, Oklahoma, Missouri and South Dakota. The South Carolina House of Representatives has attempted several times to pass its own 20-week ban, but the state Senate has thus far rejected the measure – and prevented it from joining the other states currently taking up the so-called “dismemberment” bans.

Almost as soon as Republicans took control of Congress in January, the US House of Representatives failed to pass its own 20-week abortion ban amid concerns over its narrow exception for rape. But Republican leaders have said they intend to bring up the legislation again.

Anti-abortion groups have nonetheless maintained that the 20-week abortion ban is their top priority – resurrecting a fight that goes back to Roe v Wade, the US supreme court’s landmark ruling in 1973 that legalized abortion and forbade states from banning the procedure until viability, generally at around 24 weeks.

Pro-life proponents have long insisted that fetuses can survive outside of the womb at 20 weeks, and thus the 20-week abortion ban was in part a result of the Roe v Wade decision. Immediately after the ruling was handed down, states debated a series of bills seeking to outlaw abortion at 20 weeks.

Abortion restrictions would still face an uphill battle at the federal level, so long as Barack Obama or any other Democrat controls the White House. As a result, pro-life groups have largely focused their efforts on the states – a strategy that has paid dividends and, in several states, shuttered access to abortion.

“The whole process is to go from defense to offense on this issue,” Marjorie Dannenfelser, president of the anti-abortion group Susan B Anthony List, said in a January interview, noting that 13 states had already enacted 20-week abortion bans. “One of our goals will be to make sure that trend continues.”

Now, it appears pro-life groups want to take the trend a step further by testing uncharted limits with each new piece of legislation. Pro-choice advocates said the new “dilation and evacuation” measures are part of a conservative pattern to use faulty science in curtailing women’s access to the procedure.

The proposals are just “one more bill that chips away at a woman’s access to safe, legal abortion and substitutes a politician’s judgment for that of a medical professional”, said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union.

“Even if we disagree about abortion,” Dalven added, “I’d hope we can all agree it’s better a doctor can provide the safest medical care. And I’d hope we can agree that politicians shouldn’t be preventing a doctor from providing what he or she thinks is the best medical care, period.”

Doctors have voiced serious concerns with the laws, which ban physicians from using forceps, clamps, scissors and other instruments to extract a fetus from the womb in pieces. The language as crafted by the NRLC makes no exceptions for rape or incest. Many physicians have argued that the method is safe, whereas alternative procedures can be risky for certain women and often require hospitalization.

“This new law in Kansas is deeply disturbing because it inserts politicians where they don’t belong – directly into doctor’s exam room – by restricting a procedure that evidence shows is not only safe, but the safest procedure for most women who are in need of an abortion in the second trimester,” said Dr Vanessa Cullins, a gynecologist and vice-president for external medical affairs at Planned Parenthood Federation of America.

The constitutionality of the laws will likely depend on whether they imposed an undue burden on women seeking abortions. In a 2007 decision, the US supreme court upheld a ban on partial-birth abortions on the grounds that alternatives to the procedure are available.

Amanda Allen, state legislative counsel at the Center for Reproductive Rights, said the efforts to outlaw dilation and evacuation procedures raise “serious constitutional concerns”.

Backers of the legislation “know the American people do not agree with their long-term strategy to completely eliminate access to safe and legal abortion at any point in pregnancy, so instead they are trying to ban safe care in the second trimester using graphic, non-medical terminology,” Allen said.