While President Donald Trump is banking on the power of inflammatory anti-abortion rhethoric to help him win the White House again, conservative lawmakers in state legislatures across the country are laserfocused on taking the fight to the courts. The road to making abortion illegal in the U.S. again is paved with extreme regulations like so-called “hearbeat bills.”
Since January, a dozen states have introduced this type of legislation, which bans abortion as soon as a fetal heartbeat is detected. In the last week, Kentucky and Mississippi both signed the bans into law. A court blocked Kentucky's over the weekend and advocates say they will deploy a legal challenge against Mississippi's. Another ban is being considered in Georgia, where the measure could soon be approved by the state Senate. The bill passed the House earlier this month and Republican Gov. Brian Kemp has urged lawmakers to send it to his desk.
“This is just a straight up abortion ban. The reality is that most folks don’t find out they are pregnant until after six weeks,” Oriaku Njoku, co-founder and executive director of ARC-Southeast, which helps people access reproductive care, told Refinery29. “This is not only happening in Georgia. It’s a calculated attack, going on all throughout the country, to eliminate access to abortion.”
Last week, the Ohio Senate once again voted to pass its heartbeat bill. The measure, which doesn’t include exceptions for cases of rape and incest, had previously cleared the legislature in December before being unceremoniously vetoed by then-Gov. John Kasich. But new Gov. Mike DeWine says he will sign it into law if it clears the Ohio House and is sent to his desk. Similar legislation is also being considered in Tennessee, Missouri, South Carolina, Florida, West Virginia, Maryland, Texas, and Minnesota.
Reproductive rights advocates say the bans are clearly unconstitutional due to the U.S. Supreme Court's 1992 decision on Planned Parenthood v. Casey, which upheld a woman's right to choose an abortion before viability. (According to research, a fetus is not considered viable before 22 weeks of pregnancy.) But that hasn’t stopped this new wave of heartbeat bans from occurring. Elizabeth Nash, senior state issues manager at the Guttmacher Institute, says the aggressive rate at which these measures are being introduced is unprecedented. However, the reason why couldn’t be much clearer. “These bans are very much at the center of Roe v. Wade,” she told Refinery29. “The idea is to kick off a court case and ultimately is to get this before the U.S. Supreme Court with the anticipation that the court is looking to undermine or overturn Roe v. Wade. Conservatives are very eager to get that ball rolling.”
Ohio itself was the first state to ever introduce a heartbeat ban, back in 2011. At the time, the decision to advance such a radical proposal split the state’s anti-abortion movement, but it also had the effect of softening other regulations for the public. “When these bans were first introduced, they were back-burner issues and they were often used to make other restrictions seem more moderate. If you’re looking at a six-week ban versus a 48-hour waiting period, the latter seems more moderate,” Nash said. “Now these abortion bans are being considered very seriously.”
Anti-abortion lawmakers have Trump to thank for the inspiration. The president has often expressed his desire to overturn Roe and delivered on his campaign promise to appoint anti-choice conservative justices to the Supreme Court. The ideological balance of the court was officially cemented to the right with the confirmation of Justice Brett Kavanaugh, who once argued Roe is not settled law and earlier this year issued a dissent that could only be interpreted as declaring war on the landmark decision. Though heartbeat bans have been successfully signed into law before, they’ve never gone into effect. That’s what happened with Iowa’s measure, which was blocked by the courts last July.
It’s a calculated attack, going on all throughout the country, to eliminate access to abortion.
These bills have concerned health providers and advocates because, in the event a court allows them to be enacted, it would be a de facto ban on abortion. “The geographics of where you live in this country dictate your access to care,” Dr. Sanithia Williams, from the Bixby Center for Global Reproductive Health at the University of California-San Francisco, told Refinery29. She explained that in some of the states that are proposing a heartbeat ban, there are already several hoops patients must jump through such as waiting periods, like Missouri’s 72-hour required delay between consenting to an abortion and obtaining it; the small number of providers in some states, which leads to patients traveling long distances and clinics being overloaded; and even the economic burden of figuring out how to pay for care. “Knowing all the other barriers to accessing a pregnancy test [at a family planning clinic] and then accessing abortion care,” she said, “[these bills] are essentially making it so no one has a right to abortion.”
Some supporters of heartbeat bans argue that women should know immediately whether they’re pregnant and if they decide on the spot to seek an abortion, it should not be an issue. But Williams said that even in this perfect hypothetical situations, there are still hurdles patients must clear. “Even in an idea world, it’s not reliable. There are places with more abortion providers and where there are less policy barriers, like in California, but you have to remember these are still healthcare centers,” Williams said. “The logistical things that go into healthcare in general [also apply here] — such as time needed for a patient to get an appointment scheduled.” In other words, it’s often not as simple as walking into a clinic and getting an abortion.
These logistical hurdles are best exemplified in a place Georgia, which already has reproductive healthcare deserts that make it harder for patients to access services, including abortion. “We know that 97% of folks live in a county without an abortion provider. We also know there 79 counties in the state where there’s no OB-GYNs and nine counties that have no doctors of all,” Njoku said. “Overall, the state of healthcare is in crisis.”
The introduction of these bans is arguably the new frontier on the battle for reproductive rights. There are already several lawsuits against abortion restrictions making their way to the Supreme Court and it’s likely that eventually a legal challenge to a heartbeat ban would reach the bench. Nash, from Guttmacher, said a decision in favor of anti-choice lawmakers would change the landscape of abortion access in the U.S. “If states are allowed to ban abortion that early in pregnancy, we would also see the existing differences in access get worse,” she said. “We would see that along the West Coast and the Northeast, states protect and maintain access, while states in the Plains, the Midwest, and South continue to erode access.”
The idea of where you live determining whether you can access abortion or not is not new. In fact, abortion deserts — i.e. when people have to travel 100 miles or more to access care — are prevalent in all regions of the U.S. but the Northeast. But experts like Nash believe that these extreme bans would only exacerbate that problem. The possibility is daunting, but it has also fired up advocates who seek to protect women’s access to care. Back in Georgia, Njoku said there’s been an overwhelming show of solidarity by people who oppose the state’s heartbeat ban. “This is not a true reflection of what Georgians want,” she said: “The folks playing these games with our bodies, our lives, and our families should be ashamed of themselves.”
This story was originally published on March 15, 2019. It has since been updated.