Abortion rights without Roe poised to splinter across states, jurisdictions, courts

Performing an abortion in Oklahoma will be a felony punishable by up to 10 years in prison under a bill signed into law by Gov. Kevin Stitt on Tuesday — just three days after lawmakers in Maryland went the other direction by expanding not only who can perform abortions but also requiring insurance to cover the procedure at no cost to the policyholder.

The new laws in Oklahoma and Maryland reflect a rapidly splintering legal landscape as Republican-controlled states enact abortion restrictions while Democratic-run states race to codify abortion rights. A Supreme Court ruling expected this year could upend Roe v. Wade, the case that has guaranteed the right to abortion for the past half-century.

Mr. Stitt, a Republican, said Tuesday that Oklahoma’s abortion ban, which becomes law 90 days after the Legislature adjourns, makes an exception only to save the life of the mother.

“We want to outlaw abortion in the state of Oklahoma,” Mr. Stitt said. “I promised Oklahomans that I would sign every pro-life bill that hits my desk, and that’s what we’re doing here today.”

The legislative actions in Oklahoma, Maryland and other states epitomize a growing national divergence on abortion law.

“Pro-Life Laws in the States,” a geographical report released last week by the conservative Family Research Council, suggests the nation is approaching a time when state boundaries determine a woman’s access to abortion.

Michael New, a political scientist at the Catholic University of America who analyzes abortion statistics, said the Family Research Council map confirms that “over half of U.S. states would have some protective laws in place” if the court’s 6-3 conservative majority gives states the authority to regulate abortion.

“If Roe v. Wade were overturned, it would be difficult for pro-lifers to protect the preborn in politically liberal parts of the country,” Mr. New said. “However, throughout much of the South and the Midwest, there would be substantial legal protections for the preborn.”

The Supreme Court is expected to issue a ruling this summer in the case of Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi law that bans abortions after 15 weeks of pregnancy.

Court watchers say the ruling could overturn Roe v. Wade, the 1973 decision that legalized abortion throughout pregnancy by allowing Congress and state legislatures to decide how and when to restrict a woman’s access to the procedure.

That could trigger dormant pro-life laws enacted before and after Roe that states have not been able to enforce. It would not affect states with no restrictions on abortion.

The Family Research Council report found that 18 states have laws restricting abortion under most or all circumstances, four states limit abortion when a baby’s heartbeat becomes detectable, five states ban abortion at a specific gestational age and three states forbid abortion when the fetus can survive outside the womb.

Another 14 states allow women to obtain abortions until birth with a broadly defined health exception, and six states allow “legal abortions at any point for any reason,” according to the report.

Colorado, New Mexico, Oregon, Vermont, Alaska and New Jersey place no restrictions on abortion during the nine months of pregnancy.
Besides Arizona and Utah, states that ban abortions after conception except under narrowly defined health exceptions are Idaho, Wyoming, North Dakota, South Dakota, Oklahoma, Texas, Wisconsin, Missouri, Arkansas, Louisiana, Michigan, Mississippi, Alabama, Tennessee, Kentucky and West Virginia.

Connor Semelsberger, the Family Research Council’s director of federal affairs for life and human dignity, said some state bans are probable only if the court strikes down Roe.

“We created our distinct ranking system and included pro-life laws passed in each state beyond what may go into effect after Roe,” Mr. Semelsberger said in an email. “FRC’s map gives a fuller and more detailed picture of pro-life and pro-abortion activity in each state.”

On April 1, the pro-choice Guttmacher Institute broke down state-level abortion restrictions even further in its “Overview of Abortion Laws.” Guttmacher found in its tracking report that 36 states require a licensed doctor to perform an abortion, 19 states require abortions to be performed in hospitals after a particular gestational stage and 17 states require the assistance of a second doctor after a certain point.

The research institute said 16 states use their funds to “pay for all or most medically necessary abortions for Medicaid enrollees,” 12 states restrict private insurance coverage of abortions, and 33 states and the District of Columbia forbid government funding of abortions in most circumstances.

The report said 45 states have conscience laws allowing individual health care workers to refuse to participate in abortions and 42 states allow institutions to refuse to perform the procedure.

Guttmacher said 18 states require counseling before an abortion, 25 states have waiting periods and 37 states require some parental involvement in abortions involving children younger than 18.

A Guttmacher spokesperson referred The Washington Times to an Oct. 28 report that predicted 26 states are “certain or likely” to ban abortion if the Supreme Court upholds Mississippi’s law.

“It is also important to remember that Roe would not have to be overturned entirely to start the process of activating some trigger laws. If the Court weakens or undermines existing federal constitutional protections, that may be enough momentum for states to start implementing these bans,” Elizabeth Nash wrote in that report.

That supports the findings from the Family Research Council’s map. Iowa, Ohio, Georgia and South Carolina laws forbid abortion when a fetal heartbeat is detected in the womb. Montana, Nebraska, Kansas, Indiana and North Carolina limit abortions to a specified gestational age. New Hampshire, Pennsylvania and Florida forbid abortions after a fetus can survive outside the womb.

Several states on the West Coast and in the Northeast allow abortions for broadly defined health reasons at any point in pregnancy. On this list are California, Nevada, Hawaii, Washington, Maine, Massachusetts, Rhode Island, Connecticut, New York, Delaware, Maryland and Virginia.

The Midwestern states of Minnesota and Illinois are also included.

Mr. New, the Catholic University professor, said the map shows late-term abortions would remain legal in 20 states. Still, he said, pro-life activists would have to challenge those laws in state courts and jurisdictions.

“If Roe v. Wade were overturned, pro-lifers would still have plenty of work to do,” Mr. New said.

Health, The New York Today

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