State laws seek to reduce abortion by legal restrictions

by Jerry Filteau

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A composite image of Kansas Gov. Sam Brownback, left, and Oklahoma Gov. Mary Fallin (Newscom/Dennis Brack, and UPI photo/Jack Hohman)

It’s no massive reversal of 1973’s U.S. Supreme Court Roe v. Wade and Doe v. Bolton decisions, but numerous state legislatures this year have enacted or are considering new abortion restrictions.

Passage of the new laws was at least encouraged, or in most cases clearly enabled, by the substantial 2010 conservative Republican gains in those states’ legislative chambers and statehouses.

The number of Republican-dominated state legislatures jumped from 14 to 26 after last November’s elections. Of those 26, 21 also have Republican governors.

The number of abortion-restricting bills introduced in state legislatures increased accordingly -- from 174 last year to more than double that this year. Most of those bills have died or will die in committee or on chamber floors, but the number making it into law has grown significantly this year.

The new legislation focuses on creating new legal restrictions on abortions -- long a Republican policy theme -- rather than on creating new economic or social conditions that might reduce the demand for abortion -- a rather new Democratic theme, currently rendered politically unpopular in a time of severe tightening of federal and state budgets for social welfare programs.

Key state legislation this year included:

  • Oklahoma, Kansas and Idaho adopted fetal pain restrictions on late-term abortions, on grounds that after 20 or 21 weeks of gestation an abortion procedure causes pain to the unborn child. Nebraska passed similar legislation last year and several other states, including Ohio, are considering adoption of laws modeled on Nebraska’s.
  • Oklahoma and Virginia prohibited the inclusion of insurance for elective abortion under any federally subsidized insurance exchange programs in the state that may be adopted in implementing the 2010 federal health care reform act.
  • New parental permission requirements for any abortion performed on a minor were adopted in Kansas.
  • Kansas and Virginia adopted stricter regulation of or inspections on abortion clinics.
  • South Dakota established a 72-hour waiting period, the longest in any legislative history since the 1973 Supreme Court decisions, between a woman’s initial visit seeking an abortion and the carrying out of the procedure.

Florida and Oklahoma were among states considering a requirement that a woman must have an ultrasound before deciding on an abortion.

The Missouri Legislature was also considering legislation that would ban abortion after 20 weeks’ gestation and a bill that would more strictly regulate the prescription and administration of drugs that induce abortion.

Ohio -- unlike most states, which end their legislative sessions sometime in the spring -- will continue its session into late June or even mid-July. Among active legislative proposals there is one, passed by the Senate April 6 and introduced in the House April 7, that would follow the Nebraska lead of banning abortion after 20 weeks’ gestation except when the mother’s life is at risk or she faces serious physical impairment from trying to bring the pregnancy to term.

In a more radical move, directly challenging the 1973 Roe v. Wade decision, Ohio House Bill 125 would make it illegal to abort a fetus any time after it has a detectable heartbeat -- about six to seven weeks into a pregnancy. Ohio Right to Life actually opposes HB 125, arguing that court challenges to its constitutionality could lead to a Supreme Court ruling that sets back advances made by the pro-life cause since 1973. In early May the bill had passed committee muster but was still awaiting floor action.

On April 8 Kansas Gov. Sam Brownback, a Republican, signed a new law prohibiting elective abortion of a viable fetus after 21 weeks of pregnancy on grounds that at that time the fetus can feel pain.

Four days later he signed a law requiring doctors to have written permission from both parents, if they are still married, before performing an abortion on a minor. Twenty-four states have parental permission requirements, but only two others -- North Dakota and Mississippi -- require the consent of both if the parents are still married. All permit judicial bypass of parental consent, a condition of such laws imposed by the Supreme Court in a 1983 decision, Planned Parenthood of Kansas City v. Ashcroft (John Ashcroft, then Missouri attorney general).

The Kansas Legislature April 27 sent Brownback legislation requiring twice-a-year inspections of the state’s three abortion clinics, including an unannounced visit each year.

Brownback was expected to sign that bill as well. The Legislature had passed each of the three bills in previous years but they were vetoed by Brownback’s Democratic predecessor, Gov. Kathleen Sebelius, who is now secretary of the U.S. Department of Health and Human Services.

Last year Nebraska enacted the Pain-Capable Unborn Child Protection Act, prohibiting abortion after 20 weeks of pregnancy because of pain to the fetus. When the law took effect, Dr. LeRoy Carhart, widely known for his willingness to perform late-term abortions, left his practice in Omaha to set up shop in Maryland, where abortion is more loosely regulated.

The new Kansas law on fetal pain, which takes effect in July, was modeled after the Nebraska statute.

The Nebraska law also served as a model for a fetal pain law signed April 20 by Oklahoma Gov. Mary Fallin. Like the others, it provides exceptions for late-term abortions if the mother’s life is at risk or she faces serious physical impairment.

Fallin, a Republican, also signed a new law prohibiting the provision of elective abortion coverage in any of the state exchanges set up under the new federal health care legislation. Last year Gov. Brad Henry, Fallin’s predecessor and a Democrat, had vetoed similar legislation.

This February the Virginia Legislature, also backed by a new Republican governor, adopted legislation empowering the state’s Board of Health to develop new regulations for clinics that perform at least five first-trimester abortions a month. The new regulations would hold abortion clinics up to higher standards, such as those applied to hospitals, rather than those applied to doctors’ offices.

The use of 20 or 21 weeks of gestation as a cutoff for abortions when the mother’s life or physical health is not at stake again pushes the state-interest limits of the Supreme Court’s three-trimester distinction in 1973’s Roe v. Wade decision.

That was already modified in 1992 by Planned Parenthood v. Casey, where the high court, ruling on abortion restrictions in Pennsylvania, recognized that the viability of a fetus -- provoking substantive state interest in its rights -- might begin at 22 to 23 weeks’ gestation, rather than at the start of the third trimester, as was considered the normal start of viability back in 1973.

[Jerry Filteau is NCR Washington correspondent.]

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