Abortion Isn't Illegal Yet — Here's What You Need to Know
If you haven’t been paying close attention, it might feel like a deluge of anti-abortion laws just came out of nowhwere this week and, all of a sudden, the United States has gone full Handmaid’s Tale. And, fair, it does kind of feel like that. But what’s really happening is the culmination of 40 years of anti-abortion bricklaying; ever since Roe v. Wade legalized abortion conservative lawmakers have been trying to take that right away. So let’s get up to speed. Here’s what, exactly, is happening in Alabama — and across the nation — with regard to reproductive health care.
On Wednesday, Alabama Governor Kay Ivey signed into law a complete and total ban on abortions from the point of conception. The bill, which does not permit exceptions in the case of rape or incest, contains only one exception — if the life of the pregnant person is in danger. The legislation makes it a felony for anyone to provide an abortion, punishable by up to 99 years in prison.
Just last week, Georgia’s Governor Brian Kemp signed into law a ban on abortions at six weeks, before many even know they’re pregnant. The bill does contain an exception for rape and incest, but in order for a victim of rape or incest to actually access an abortion under the bill, they would have to file an official police report (which many cannot do) and their pregnancy cannot exceed 20 weeks. It also suggests people undergo investigation after a miscarriage to discern if the pregnancy loss was their fault.
But it isn’t just Alabama and Georgia. Three other states have already signed near-total abortion bans into law, including Ohio, Mississippi, and Kentucky. By Thursday morning, Missouri Senate had passed a bill to ban abortion at eight weeks, with an exception only if the woman’s life is in danger — none for rape or incest. Just as surely as bills like this continue to be put forth by Republican lawmakers, and passed, there are organizations hard at work to block them before then can take effect. It’s important to note that the new law in Alabama, for example, wouldn’t be enforcable for another six months, as CNN reports — if it makes it that far at all.
The ACLU just announced that they are suing to block Ohio’s six-week abortion ban from taking effect. Kentucky’s six-week abortion bans have been temporarily barred from taking effect by a judge. Mississippi’s ban faces a similar court challenge. In the meantime, Louisiana, South Carolina, West Virginia, and Tennessee are considering similar bans, showing that the wholesale attack on abortion rights is not slowing down. Even though, and this is important, they are not Constitutional at all.
According to Roe v. Wade, the 1973 Supreme Court ruling that made legal access to abortion a Constitutional right, states cannot restrict abortion at any point before the fetus can survive outside of the womb. (That’s why, for a while, every restriction had to do with shutting down clinics, also known as TRAP laws. They weren’t preventing abortion, per se, they were just systematically closing down every facility where it would be offered. As we said: This strategy has been in the works for a long time.) But anyway: Fetal viability is a moving target somewhere around 26 weeks. Sometimes premature infants survive earlier than that, but absolutely not anywhere near six weeks.
So, yes: These bills and laws are unconstitutional. They’re specifically designed to be.
“This bill is about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection,” Alabama state Rep. Terri Collins (R), the sponsor of the bill, said after its passage through the Senate. “I have prayed my way through this bill. This is the way we get where we want to get eventually.”
Abortion opponents didn’t always say things like that. With previous restrictions like TRAP laws, which aimed to close clinics, they couched their legislation in rhetoric of “protecting women’s safety.” But that was 2014, before Trump won the Presidency, before he appointed Neil Gorsuch to a stolen Supreme Court seat, before Brett Kavanaugh was appointed and flipped the Supreme Court’s balance of power.
Now, abortion opponents are saying what they mean with abortion bans: they want to overturn Roe v. Wade. How do they do that? By passing a law so CLEARLY unconstitutional that it has to be brought to court, where pro- and anti-choice legislators will battle it out all the way up to the Supreme Court. There, the law itself isn’t the only thing up for debate, but the meaning of the Constitution that upholds it. The Supreme Court can decide that they think it's not obstructing anyone's human rights to ban abortion and make miscarriage a potentially criminal offense, and instead it's the prior interpretation of the Constitution (a.k.a. Roe v. Wade) that's wrong and has to go.
Alabama’s abortion ban was created specifically with that goal in mind. It contains no exceptions for rape or incest because legislators believed that a total ban would be more likely to be blocked in court and subsequently make its way to Conservative justices John Roberts, Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh (who make up the majority on the bench).
Alabama lawmakers one-upped Georgia and other states advancing six-week bans in a cruel race to overturn Roe v. Wade first. Eric Johnson, the anti-abortion activist who drafted the bill, made it clear in a statement to The New York Times: “Until now, there was no prospect of reversing [Roe v. Wade]. Why not go all the way?”
These bans are created with the express purpose of being sued, blocked, and appealed, all the way up to the Supreme Court. With Brett Kavanaugh’s appointment last fall, the Supreme Court’s partisan balance of power shifted to abortion opponents. Five of the nine justices are hostile to abortion rights, and laws like Alabama’s total ban and Georgia’s near-total ban are gift-wrapped opportunities for those justices to do what the anti-choice movement has wanted for 46 years.
It may seem like we’ve arrived at this crisis point suddenly, out of the blue. In fact, this is the culmination of a decade of escalating restrictions on abortion. Since 2010, more than 400 abortion restrictions have been enacted in states across the country. Today, 29 million women of reproductive age now live in a state hostile to abortion rights. Ninety percent of counties in the United States are without an abortion clinic. States like Mississippi, Kentucky, and Missouri are down to one abortion clinic left to serve the entire state.
All the while, people will still need abortions. But with much of the southeast proposing, passing, and attempting to enact total or near-total abortion bans, an entire region of the country is facing the prospect of little or no legal abortion care. Even if these bans aren’t allowed to go into effect, they can serve as a source of terror for patients and providers alike.
For now, abortion is still legal in all 50 states. Abortion is legal in Alabama and Georgia, and will likely remain so as these bills work their way through the courts. Alabama’s total abortion ban is slated to go into effect six months from now; Georgia’s near-total abortion ban won’t go into effect until January 2020.
Of course, what will happen to Roe v. Wade is, at this point, complete conjecture. But one thing is clear: No piece of legislation will ever end abortion. Anti-abortion legislators know they cannot end abortion; they can only end safe abortion, as women are forced into back alleys to endanger their lives when legal care isn't an option. The worst part? That may be the point after all.