As Pink States Push Strident Abortion Bans, Different Restrictions Out of the blue Look Much less Excessive
What is the ultimate goal of the anti-abortion movement? It might be surprising.
To the casual observer, the obvious answer is that abortion opponents want to overturn Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide. Before Roe, states decided whether and when abortion should be legal.
It’s possible opponents of abortion will see that wish granted. Based on comments made by six conservative justices during arguments, the high court this year is expected to either weaken significantly or throw out the nearly 50-year-old precedent of Roe by upholding a Mississippi law banning the procedure after 15 weeks of pregnancy.
In the meantime, state legislatures are scrambling to prepare for that likelihood — either by shoring up laws protecting the procedure (in a few states), by proposing new restrictions, or by ensuring that pre-Roe bans or restrictions could be reinstated if and when the Supreme Court acts. According to the Guttmacher Institute, an abortion-rights think tank, 519 abortion restriction bills were introduced in 41 states from Jan. 1 through March 15, including 82 proposed abortion bans in 30 states.
Just last week, West Virginia’s governor signed a law banning abortion for reasons of fetal disability, and Idaho’s governor approved a bill that mirrors a Texas ban on abortion after six weeks. The Supreme Court has so far failed to block the Texas law, even though it clearly violates Roe, which, until the justices rule, remains binding precedent.
But it is important to remember that overturning Roe — and tossing abortion decisions back to individual states — is only a way station toward opponents’ ultimate destination: ending abortion entirely. “We would like to see every abortion gone, because we know that there are two people in every abortion choice,” Marjorie Dannenfelser, president of the Susan B. Anthony List, told KHN’s “What the Health?” in January.
But anti-abortion forces disagree on two fundamental points: what ending abortion actually means, and how fast to try to achieve it.
To settle the first major disagreement, there first must be consensus on what constitutes an abortion, or, to put it another way, when life begins. The “personhood” movement, which has pushed (so far) unsuccessful ballot measures in several states, argues that because human life begins from the moment sperm and egg unite to form a zygote, fertilization should mark the start of protections for human life. That would, in practice, bar many forms of birth control and in vitro fertilization, and give embryos property rights, among other things.
Other abortion opponents suggest banning forms of birth control they consider “abortifacients” (methods they say cause abortions, such as most intrauterine devices and the “morning-after” pill), while not banning in vitro fertilization. Still others would continue to support most forms of birth control but not the abortion pill mifepristone, which, unlike the morning-after pill, works after a fetus has begun to develop in the womb.
The second, and more public, disagreement is over how quickly to pursue a zero-abortion strategy, assuming the Supreme Court returns that power to the states. This is where some of the more extreme anti-abortion bills are starting to consume the debate’s oxygen. For example, in Missouri, legislators have proposed bills that would ban abortions even in cases of ectopic pregnancies, which are not only nonviable but also life-threatening for the pregnant person, and criminalize helping someone travel out of state for an abortion. In Idaho, the new law would allow the family members of some rapists to sue doctors who perform abortions on rape victims.
The problem with these measures, say analysts from Guttmacher, is that “often they are not the main focus of anti-abortion policymakers, but pull attention away from other abortion restrictions and bans that are moving quickly through some state legislatures. Moreover, these types of headline-baiting restrictions can make other devastating provisions, such as Texas-style bans or gestational age bans, seem less radical and harmful than they really are.”
“There was a time when passing blatantly unconstitutional laws was considered un-American,” said Emily Wales of Planned Parenthood Great Plains Votes in a statement about a bill passed by the Oklahoma House on March 22 that would ban virtually all abortions — making it potentially the strictest ban in the U.S. “The proposed ban is intended to shame, stigmatize, and create fear among vulnerable Oklahomans.”
Which raises the idea of the “Overton Window.” Named for Joseph Overton, who helped run a public policy institute in Michigan, the concept is that only policies within a range of acceptance to the public are considered viable. However, by pushing policies that may be outside that window — in other words, extreme — the window can be nudged to make previously unthinkable policies politically acceptable.
Some suggest that’s what is happening with the recent slew of abortion legislation — that anti-abortion forces, whether accidentally or on purpose, are pushing extreme proposals to make formerly radical proposals — like a Texas-style ban on abortion after six weeks, enforced by civil lawsuits rather than state officials — seem moderate by comparison.
Will the strategy work? It’s too early to tell. But things are likely to become clearer in a hurry when the Supreme Court issues its decision, expected sometime before July 4. Fireworks, indeed.
HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.