The 5 most dangerous abortion restrictions of 2013

And five things they taught us about what the anti-choice movement is willing to do to deny women medical care

Topics: Abortion, abortion rights, year in review, Women's Rights, Texas, North Dakota, New Mexico, medication abortion, North Carolina, reproductive justice, Reproductive Rights, Best of 2013, worst of 2013, , ,

The 5 most dangerous abortion restrictions of 2013Rick Perry (Credit: AP/Tony Gutierrez)

It was another dire year for reproductive right in the United States. Like 2011 and 2012 before it, 2013 saw an onslaught of increasingly draconian restrictions on abortion care; lawmakers pushed regulations intended to shutter clinics over the width of hallways or the size of parking lots and bans that criminalize abortion at five to six weeks — well before most women even know they are pregnant. In addition to getting bolder in presenting direct challenges to the constitutional guarantees of Roe v. Wade, anti-choice lawmakers (or the groups that write legislation for them) got savvier and broader in their targets, using bans on medication abortion, bogus claims about women’s health and miles of red tape to deny women access to basic healthcare.

And just in case you weren’t already feeling despondent about the glaringly misogynistic priorities of many of our elected officials, consider that state legislatures passed almost as many reproductive health restrictions in 2013 as the United States Congress passed laws during the same time period.

Below is a roundup of some of the worst abortion restrictions to pass or be proposed in 2013, and what they taught us about the anti-choice movement’s priorities in 2013. (And fear not: The news isn’t all bad. What the reproductive justice movement can and must continue to do to fight even harder in 2014 is forthcoming, so stay tuned for that.)

North Dakota passed the most extreme pre-viability ban currently on the books. 

North Dakota lawmakers kept themselves very busy this year by passing a number of extreme abortion restrictions and other measures to curtail women’s reproductive freedom. Perhaps because of abortion restriction-induced fatigue, they gave themselves time to rest by not passing a number of popularly supported measures, like a measure to expand access to prenatal healthcare.

Republican Gov. Jack Dalrymple signed a number of sweeping abortion restrictions into law, but the one that received the most press was a measure to criminalize all abortions after a fetal heartbeat is detected — which can be as early as five or six weeks, before most women even realize they are pregnant. It is the most extreme pre-viability ban currently on the books, and intentionally so. By introducing a measure in such flagrant violation of constitutional protections set out by Roe v. Wade, conservative lawmakers believe they can bait the Supreme Court into reconsidering the landmark ruling. Supporters of the law embraced the possibility of a legal challenge from the outset. State Rep. Bette Grande commented at the time that she wasn’t concerned with the law’s constitutionality or the financial burden that defending it would put on taxpayers (and certainly not the barrier to sound medical care the law represents), but looked at the law from the “life side of things,” adding that “fears about a legal challenge” should not deter lawmakers from advancing similarly extreme bans in other states.

As expected, courts have blocked enforcement of the law while reproductive rights advocates challenge it. As expected, it is costing taxpayers a lot of money.

Another bit of Supreme Court bait set out by the Republican-controlled Legislature was a measure granting personhood to fertilized eggs, also an obvious challenge to Roe. And much like the six-week ban, this was the plan from the start. “We are intending that [the personhood legislation] be a direct challenge to Roe v. Wade, since [Justice Antonin] Scalia said that the Supreme Court is waiting for states to raise a case,” state Sen. Margaret Sitte, the sponsor of the bill, told the Huffintgon Post. The measure passed, and the matter will now go to North Dakota voters in the 2014 election season. Hopefully they are more sensible than the men and women elected to represent them.

Lessons?

The major takeaway is that while lawmakers across the country introduce more insidious laws regulating clinics and abortion providers to effectively legislate around Roe, the Supreme Court remains the anti-choice movement’s “precious.” Conservative lawmakers and their allies in the anti-choice movement envision — and legislate for — a future in which women no longer have a constitutional guarantee to medical care, which is why overturning Roe and stripping women of its constitutional protections remains one of their top goals. If their explicit statements declaring this aren’t proof enough, just consider the abundance of draconian abortion “trigger laws” that legislators have designed to take effect in the event that Roe is ever overturned.

The strategy of throwing blatantly unconstitutional laws — including pre-viability bans, restrictions that don’t include rape exceptions and others – at the proverbial wall to see what might stick has proved effective in keeping reproductive rights on the high court’s radar, but none have succeeded in moving the court to revisit Roe. Yet. We can expect more of the same come the new year.

Extreme anti-choice activists in New Mexico introduced the nation’s first municipal-level abortion ban.

While Republican-controlled legislatures continued to pass sweeping abortion restrictions with an alarming frequency, the antiabortion movement also played around with a new tactic to use in states that don’t have lawmakers hungry to adopt legislation manufactured by Americans United for Life. The new strategy in the right’s playbook is criminalizing abortion at the city level.

New Mexico is the rare state in the country that does not have any abortion restrictions on the books. (Let’s focus on this information for a moment. There is a state with zero legislative impediments to women’s access to healthcare. How unusual and dreamy.) But anti-choice activists hoped to change that by introducing a 20-week abortion ban at the municipal level. The initiative was led by Operation Rescue “missionaries” Bud and Tara Shaver, who moved from Kansas to New Mexico for this specific purpose. Supported by other antiabortion activists who were bused in from out-of-state to gather the necessary signatures for the ballot initiative, the Shavers hoped to succeed at the city level where they had failed at the state level.

“Every single year, these abortion bills never get out of committee. They never make it to the floor,” Tara Shaver recently told Salon. “As a way to bypass the Legislature, which refuses to hear the voices of the people, we decided to launch an initiative at the city level.” The enthusiasm for the new plan was echoed by Operation Rescue president Troy Newman, who said in an interview with Reuters, “It is a new strategy. There is more than one way to close an abortion clinic,” a reference to the Southwestern Women’s Options clinic, the primary target of anti-choice activism in the city. “If you can’t get anything done in a state legislature … you look at what is going on in a city. They say all politics is local. This is a great example of that.”

Lessons? 

The measure failed by an overwhelming majority, a positive indication that a campaign that relies primarily on out-of-state activists — no matter how well-funded — to shape local politics and mess with a constituency’s core values (namely, let women and doctors make these choices for themselves) is by no means a sure thing.

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But the bigger lesson is that Albuquerque is just the beginning of a broader experiment. As Shaver explained to Salon, “I am getting calls from other people in other states about our strategy, which is encouraging.” Activists will be trying this elsewhere, so get ready for more locally targeted anti-choice activism come 2014.

Texas enacted a sweeping omnibus bill that shuttered a third of the state’s reproductive health clinics. 

This was a bad year in Texas, but it’s just the latest in a series of bad years.

Republican Gov. Rick Perry called multiple special legislative sessions to pass a sweeping set of abortion restrictions, including a measure banning the procedure at 20 weeks, restrictions on medication abortion and a series of medically unnecessary regulations designed to prevent doctors from practicing medicine and shutter clinics. Clinic closures in the state have accelerated during 2013 due in large part to the omnibus bill, but the decline of reproductive health facilities has been a trend since 2011, after state lawmakers cut $73 million from family planning programs and forfeited millions in Medicaid funding.

The consequences for Texas women have been dire — and almost immediate. After the Supreme Court refused to block the enforcement of the admitting privileges provision pending a legal challenge, nearly a dozen clinics closed overnight, leaving just 20 abortion providers operating in a state of 26 million people. Those are incredibly disturbing numbers. While the sweeping restrictions have hurt women across Texas, many of the recent clinic closures have been concentrated in the Rio Grande region of Texas, leaving residents struggling to access even basic care. The region is effectively a desert when it comes to reproductive healthcare access — a dangerous place to live if you’re a woman.

Lessons?

Texas is a case study in how insidious — and how devastating — TRAP laws really are. These red tape regulations are among the most dangerous in the anti-choice movement’s playbook precisely because they sound so innocuous. The party line from the Republican leadership behind the Texas bill was all about “safety” and “protecting women’s health,” but the negative impact these regulations have on women’s health and access to medical care was clear from the outset. It’s why the law was denounced by virtually all of the state’s major health associations.

The outcome of the legal challenges against the Texas statute is still pending, but the fate of the law may be a sign of what’s to come for similar laws facing similar challenges elsewhere in the country. Women will be watching.

Republicans in North Carolina quietly inserted sweeping antiabortion provisions into a motorcycle safety bill. 

After being busted for forcing abortion restrictions into a law nominally intended to ban Shariah law (a ridiculous and racist proposal), Republicans in North Carolina again tried this underhanded approach to legislating away women’s rights — and succeeded.

Conservative lawmakers injected language to severely restrict abortion into a completely unrelated measure — a motorcycle safety law — without advanced warning or public notice, effectively preventing any debate before the provisions were included in the bill.

Among the provisions in the motorcycle safety measure is a requirement that clinics meet the same standards as ambulatory surgical centers, a mandate that a physician be present during a medication abortion, a regulation forcing abortion clinics to have transfer agreements with local hospitals, a restriction on coverage for abortion care in the state’s healthcare exchange, as well as broad “conscience protections” to allow any healthcare provider to opt out of providing abortion-related services. You know, just regular motorcycle stuff.

Republican Gov. Pat McCrory signed the measure despite saying he would veto any abortion restrictions that crossed his desk.

Lessons? 

Anti-choice lawmakers are not interested in the democratic process, they are interested in criminalizing abortion.

The tactic of inserting abortion restrictions into a completely unrelated measure — on the day before a holiday weekend, when many lawmakers were already out of the Capitol on their way home to their families — was criticized on the right and left in the state. But its harshest critics came from those within the reproductive rights movement, who would not let state Republicans get away with quietly trying to strip away women’s rights without public scrutiny.

“It is a disgrace to North Carolina that legislators have again resorted to sneak attacks to move their anti-women’s health agenda forward,” Melissa Reed of Planned Parenthood Health Systems said in a statement at the time. “Once again there was no public notice that this bill would be heard. The public and even many legislators on the committee only learned this was a possibility at 9:57 a.m. — three minutes before the committee was to meet — when a political reporter was tipped off and posted it on Twitter. This is outrageous and not how the people’s business should be conducted.”

Oklahoma tried to ban medication abortion (over and over again). 

Attacks on medication abortion were big in 2013, but perhaps the most infamous of the bunch was Oklahoma’s attempt to ban all off-label use of abortion-inducing medication. While the law was introduced in 2011, the legal challenges and  state appeals to defend the law continued throughout 2013. A district court and the Oklahoma Supreme Court struck down the law as an unconstitutional burden on women’s access to abortion care, but the state continued to appeal. The case eventually reached the Supreme Court, which in November refused to hear it, settling the matter after a long legal battle.

The Oklahoma law, like similar bans passed elsewhere, was ruled by the Oklahoma Supreme Court to needlessly restrict “the long-respected medical discretion of physicians” by banning the treatment used during medication abortions and the non-surgical treatment of ectopic pregnancies. “The use of misoprostol in the protocol described in the mifepristone FDA-approved label is an off-label use prohibited by the terms of H.B. 1970, and the use of methotrexate in treating ectopic pregnancies is an off-label use also prohibited by H.B. 1970. H.B. 1970 effectively bans all medication abortions,” the court wrote in its ruling, noting that doctors should be making decisions about the administering of medication — not politicians.

Lessons?  

This is a lesson out of Oklahoma, but also serves as a bigger takeaway from the national patchwork of restrictions being advanced all over: Nothing is off limits. Whether it’s restricting medication abortion, shuttering clinics through red tape or imposing longer and more burdensome waiting periods, the anti-choice movement has a wide-ranging toolkit when it comes to whittling away women’s reproductive rights and banning abortion outright.

But the “ban abortion without banning abortion” strategy — exemplified by laws like Oklahoma’s medication abortion restrictions, Texas’ clinic regulations and other laws that don’t explicitly criminalize abortion but make it impossible to access — are going to continue to be a trend in 2014. Because they are effective. And because, for those who aren’t paying attention, they can almost sound sensible.

As Linda Greenhouse explained recently in an editorial for the New York Times, the tactic is so scary precisely because of how innocuous it seems. “The Oklahoma law doesn’t ban the medical procedure,” she wrote. “Rather, it requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)”

Bonus spoiler alert: We haven’t seen the last of these laws, either.

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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