In early 2018, Vice President Mike Pence was the keynote speaker at a luncheon hosted by the Susan B. Anthony List. He told the crowd, “If all of us do all we can, we can once again, in our time, restore the sanctity of life to the center of American law.” He was speaking about ending legal abortion in the United States, overturning Roe v. Wade, and upending a woman’s right to choose whether to continue or terminate a pregnancy.
This issue is perhaps the most inflammatory and widespread debate in our nation. According to the Guttmacher Institute, one in four women have an abortion by the time they’re 45. It’s a medically safe and relatively quick procedure — whether one chooses to go the medical or the surgical route — and despite the common talking point, the large majority of those who choose to terminate do not suffer negative mental or emotional health effects. Regardless, abortion is currently a constitutional right in the United States of America, thanks to the landmark 1973 Supreme Court case Roe v. Wade — which guaranteed access to legal abortion as a right to privacy under the 14th Amendment.
As Pence hoped, conservative politicians and anti-choice advocates are doing their best to change that while President Trump is in office. And they struck especially hard over the past 10 days: both Georgia and Alabama passed historically restrictive abortion laws that are essentially outright bans on the procedure. Pro-choice advocates are in an uproar, celebrities are speaking out, and advocacy groups like the American Civil Liberties Union are threatening to sue.
So what does the passage these abortion laws really mean, and how will they affect you? We break it down.
Unpacking Georgia’s “Heartbeat Bill”
Georgia already has relatively restrictive abortion laws on the books. Abortion after 20 weeks is banned, except in cases where the mother’s health is at risk — a superfluous law that functions to tighten abortion laws and shore up the anti-Roe argument, given that only 1.3 percent of all abortions are performed after the 21-week mark.
On Tuesday, May 7, Georgia Governor Brian Kemp signed into law a “heartbeat bill” (HB 481) — which outlaws abortion after a fetal heartbeat can be detected, around six weeks. The law goes into effect in January 2020, which means that if you are seeking an abortion in Georgia, the procedure is still legal.
To put this into perspective, pregnancy is counted from the date of the last period, which means that this kind of ban goes into effect when a woman is only two weeks late on her period. Myriad environmental factors, including stress and diet, can delay menstruation, and most people find out they’re pregnant between weeks four and seven, which means that, combined with mandatory waiting periods, this law is essentially an outright ban.
Beyond effectively outright banning abortion, HB 481 goes a step further: it sets up a precedent to be able to file criminal charges against people who abort or even miscarry their pregnancies.
Lawyer and journalist Mark Joseph Stern explains:
A woman who seeks out an illegal abortion from a health care provider would be subject to life in prison. And a woman who miscarries because of her own conduct—say, using drugs while pregnant—would be liable for second-degree murder, punishable by 10 to 30 years’ imprisonment. Prosecutors may interrogate women who miscarry to determine whether they can be held responsible; if they find evidence of culpability, they may charge, detain, and try these women for the death of their fetuses.
This law, unlike a previous version of the legislation in Georgia, would also apply to self-termination using Misoprostol, one of two drugs (the other being Mifepristone) which is a highly effective abortifacient. Additionally, the law grants “full legal personhood” to fetuses. That means that, though unlikely, women who obtain illegal abortions could be charged with first-degree murder — though the law is murky on this point.
While there is an exception to save the life of the mother, there are no exceptions for pregnancies resulting from rape or incest.
Understanding Alabama’s Outright Ban
On Tuesday, May 14, the Alabama Senate voted on the most restrictive abortion law in post-Roe history. If enacted, this law will essentially overturn Roe v. Wade in the state and serve as an outright ban. It outlaws abortion at every stage of pregnancy while also criminalizing the act of providing abortions. There are no exemptions for rape or incest.
“This bill is very simple,” said State Rep. Terri Collins (R), who sponsored the bill, “It’s not about birth control or the morning after the pill. It’s about not allowing abortion once the woman is pregnant. The entire bill was designed to overturn [Roe v. Wade] and allow states to decide what is best for them.”
Many outlets have reported that women who aborted their fetuses could be charged with a crime in Alabama. This is untrue. The Alabama bill instead creates a pinch point by threatening doctors with massive prison terms.
“Today is a dark day for women in Alabama and across this country,” Staci Fox, the president and chief executive of Planned Parenthood Southeast Advocates, said to the New York Times. “Banning abortion is bad enough. Imprisoning doctors for providing care goes beyond the brink. Alabama politicians will forever live in infamy for this vote and we will make sure that every woman knows who to hold accountable.”
Are these laws legal?
Per Roe v. Wade, no. And anti-abortion activists know that. In fact, Alabama is a testing ground of sorts for these activists to figure out what works and what doesn’t in their fight to overturn Roe. That’s why lawmakers like Collins rejected any amendments that would have created nuance. The goal was to launch a test balloon for future bills that would essentially upend the constitution by treating the fetus as a human, beginning at conception.
The question is: Which courts will hear cases that challenge these new laws? The Alabama Bill is clearly meant to trigger a Supreme Court case, Collins has said as much. In order for this to happen, the lower courts will have to disagree on the matter. As the Washington Post reports, lower courts generally tend to respect “settled law” in these situations.
Despite the protections ostensibly offered by Roe, the Trump administration has been stacking courts around the country with ultra-conservative, anti-abortion judges. Depending on where reproductive justice advocates file suit and where these cases are heard, there’s a chance a Trump-appointed judge will hear the case and rule in favor of these laws. At that point, the cases would be on a path toward the Supreme Court.
If there was a Supreme Court case, anti-abortion advocates hope it would lead to an amendment to Roe, denoting a certain point at which a fetus becomes human life. Once this matter is up for debate, the entire ruling could topple. These advocates also have great confidence in the current court. When Senator Mitch McConnell led the GOP in an unprecedented move to stonewall hearings for former President Barack Obama’s Supreme Court pick, Merrick Garland, it gave Trump the opportunity to instead nominate Neil Gorsuch, an ultra-conservative. Gorsuch’s votes tangentially related to abortion are split, so he is unpredictable, but experts worry that he will ultimately rule in favor of overturning Roe.
Trump’s second Supreme Court appointee, Brett Kavanaugh, is openly anti-abortion, and despite his tepid insistence during his confirmation hearings last year that Roe v. Wade is the law of the land, advocates sounded the alarm that he would be a key player in overturning Roe.
In other words: it’s not out of the realm of possibility that Roe could be overturned if it reaches the Supreme Court, especially as anti-abortion advocates continue to test the legislative waters.