Allison M. Whelan, J.D.
Senior Fellow, Center for Biotechnology &Global Health Policy, University of California, Irvine School of Law
As the majority of state legislatures get back in session, it is clear there will be no dearth of “anti-choice” legislation proposed and considered throughout the country.
In Texas, Representative Matt Krause (R-Fort Worth) is pushing a new law that would provide representation to fetuses in court hearings. This law responds to Marlise Munoz’s case, a brain-dead pregnant woman left on life support for two months because doctors refused to honor her family’s request to remove her from life support. Doctors claimed they were prohibited from doing so because Texas law prohibits withdrawing or withholding life-sustaining treatment from pregnant patients, regardless of their previously-expressed wishes.
South Dakota Representative Isaac Latterell (R-Tea) is sponsoring House Bill 1230, which seeks to ban dilation and evacuation (D and E) procedures sometimes used in second-trimester abortions. The bill uses inflammatory and graphic language (for example, making it illegal to “knowingly behead a living unborn child”), arguably intended to provoke disgust over the procedure to increase support for the bill. HB 1230 includes criminal penalties and physicians violating the law may be charged with a Class 1 felony and face fifty years imprisonment.
Fifty Ohio legislators have introduced House Bill 69, a “fetal heartbeat” law that would outlaw abortion after a heartbeat can be detected. This can occur as early as six weeks gestation, before some women even know they are pregnant.
And Minnesota lawmakers have introduced five “anti-choice” bills, two which would bar Medicaid and other public health programs in the state from covering abortion services; two that would require free-standing reproductive facilities that perform ten or more abortions per month to adhere to the same license requirements as outpatient surgical centers; and another that would require a prescribing physician be physically present when abortion drugs are administered. Under current Minnesota law, abortion medications can be proscribed via telemedicine, which greatly improves abortion access for women in rural areas.
These bills are just the tip of the iceberg. According to the Kaiser Family Foundation, legislators had filed more than 100 bills regulating abortion in more than half of all states as of the first week of February.
When considering the most restrictive anti-choice bills, such as the Ohio fetal heartbeat law, it is almost certain they do not pass constitutional muster. Prohibiting abortions as early as six week gestation is supported by neither Roe v. Wade’s trimester framework nor the viability framework later adopted in Planned Parenthood v. Casey. Although the ability to detect a fetal heartbeat is “an assuring sign” of a healthy pregnancy, the American Congress of Obstetricians and Gynecologists generally views viability outside of the womb as occurring near twenty-four weeks gestation. And indeed, fetal heartbeat bans are considered so untenable and unlikely to withstand challenge that most anti-abortion groups do not even support them.
This begs the question: what is the purpose of these bills? Why are legislators wasting time and money pursuing legislation that cannot withstand judicial scrutiny? Who—if anyone—benefits from this “legislative exercise?” Although all individuals, including politicians, are entitled to their own opinions about abortion, the legislative floor is not the place to express them. There are many other matters that deserve legislative attention, but inflammatory, unconstitutional, and unproductive anti-choice laws are not among them. If the goal is to eliminate or reduce abortions, the strongest anti-abortion legislators should instead spend their time and resources on expanding access to health care services such as contraception, family planning, and support for low-income and single-parent families. Politicians are increasingly allowing their personal religious, ideological, and moral convictions to influence their legislative actions. And although such influence is unavoidable to some extent, these anti-abortion laws go too far, benefiting no one and harming many.