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7 December 2018

How conservative states are racing to end women’s abortion rights

A court in Iowa will rule on the state’s six-week abortion ban, while in Ohio legislators are hoping to pass a six-week ban of their own

By Sophie McBain

On 7 December, Polk County District Court in Iowa will begin determining whether to strike down a law, passed by state legislators in May, that would ban abortions after a foetal heartbeat can be detected, which is around six weeks. The so-called “heartbeat bill” was due to be implemented on 1 July but has been put on hold pending a legal challenge lodged by the American Civil Liberties Union of Iowa, Planned Parenthood and the Emma Goldman Clinic, a family planning clinic in Iowa City.

If it is passed, the heartbeat bill would be the most restrictive abortion law enacted in the country and would in effect amount to a state-wide ban. Many women don’t even know they are pregnant at six weeks.

The bill forms part of an accelerated effort by Republican state legislatures to challenge the US’s abortion laws in the US Supreme Court, hoping to take advantage of the conservative composition of America’s highest court following Trump’s appointment of two right-wing Supreme Court justices, Brett Kavanaugh and Neil Gorsuch.

In November, a judge in Mississippi struck down a bill that would have banned abortions at 15 weeks. That month, the Ohio House of Representatives also passed its own heartbeat bill, which is now heading to the state Senate.

The Senate vote, which had been scheduled for 6 December, was delayed, raising the possibility that Republicans are uncertain over whether they have a large enough majority to not only pass the bill but override the expected veto from Iowa’s governor, John Kasich.

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The bill could still pass before the end of the year, but Senate Republicans would have to act fast. Should the Senate pass the bill, Kasich has ten days to consider it before exercising his veto, after which the Senate would have to reconvene, most likely over the holidays to vote on overriding the veto. The holiday might dampen Senate turnout and reduce the Republican majority.

If the bill doesn’t pass this year, it’s unlikely to be enacted for a while because of other legislative priorities in the new general assembly – but, worryingly, the incoming governor Mike DeWine has said he would sign the legislation.

In 2011, Ohio was the first state to attempt to introduce a six-week ban. That reached Kasich’s desk in 2016, when he vetoed the bill. In 2013, North Dakota implemented a similar ban, which was later struck down by a federal appellate court. It was appealed to the Supreme Court, which in 2016 declined to take the case.

Similarly, the Supreme Court declined in May this year to hear an appeal from Arkansas, after the federal appellate court struck down a bill that banned abortions after 12 weeks.

The current composition of the Supreme Court means that groups defending abortion rights have a keen interest in ensuring that they win their cases at the state level and do not end up having to defend abortion rights in America’s highest court, leading to the possibility that Roe vs. Wade is overturned.

For now, abortion activists in Iowa can afford to feel cautiously optimistic. In 2017, the state’s Supreme Court struck down a law that required women to wait 72 hours before obtaining an abortion, describing it as unconstitutional and affirming that “autonomy and dominion over one’s own body” is at the heart of what it means to be free.

ACLU and Planned Parenthood had argued that a 72-hour mandatory waiting period imposed an undue burden on women, especially those on low-incomes, those who live far away from a far away from a clinic and those whose work or childcare duties make it harder to make two trips.

However other aspects of the 2017 abortion bill were upheld, including mandatory counselling and an ultrasound before an abortion and a ban on abortions later than 20 weeks post-fertilisation.

State legislators in Iowa have also chipped away at women’s ability to obtain an abortion in other ways – and in doing so, have made it harder for women in the state to obtain contraception and vital healthcare such as pelvic exams, cancer screening and STD tests.

In 2017, Iowa banned organisations that provide abortions from accessing public funds and forewent $3m in federal Medicaid funding. As a result, the largest provider of family planning services in the state, Planned Parenthood, lost $2m in public money and announced in May 2017 that it was closing four of its clinics, which had provided family planning services to about 15,000 patients.

In October 2018, the Des Moines Register, a local newspaper, reported that the number of birth control pills, hormonal implants and related services disbursed by Iowa’s family planning programme had dropped by a third as a result of the change. State legislators’ quest to make abortion harder to obtain is also making it harder for women to prevent unwanted pregnancies.

This forms part of a broader trend for anti-abortion legislators to couch their arguments in terms of their supposed concern for women and children’s health while simultaneously passing legislation that is harmful to both.

It also forms part of a twin strategy by anti-abortion activists to simultaneously challenge the legality of abortions and also make it harder for women to access them. In North Dakota, for instance, there is only one abortion clinic. According to the Guttmacher Institute, a reproductive rights research group, 39 per cent of women in the US live in a county that does not have a single abortion provider.

At present, it seems unlikely that Republican legislators in Iowa will succeed in bringing their abortion bill to the US Supreme Court, but no one can afford to feel complacent. The Trump administration is already appointing judges to the circuit courts, the second highest courts in the US, at a faster rate than his predecessors.

In Iowa, a new Supreme Court justice was appointed earlier this year. It is not known how Susan Christensen, the only woman justice, will vote on abortion, though she is relatively conservative. Another Iowa Supreme Court justice is due to step down on 13 December because of health problems and will likely be replaced by a more conservative figure.

Meanwhile, the battleground extends beyond Iowa. “States such as Texas and Mississippi are also looking to enact abortion restrictions that will force the US Supreme Court to revisit abortion rights,” Elizabeth Nash, the Guttmacher Institute’s state policy expert explained by email. “But also, since January 2011, 33 states have enacted over 400 abortion restrictions. These restrictions have reshaped abortion access across the country.”

American women’s autonomy over their own bodies, their right to determine their own future, has been under attack for years, but the threat to abortion rights is now greater than ever – and no one can afford to look away.

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