2011 has seen an unprecedented rise in the number of legal restrictions on abortion in the USA as pro-life groups step up their campaign against a woman’s right to an abortion. Alastair Gee reports.
States across the USA are introducing new restrictions on abortion in what is being seen as the biggest legislative onslaught by pro-life politicians in decades.
According to the Guttmacher Institute, which researches reproductive health and rights, in 2011 about 70 restrictions have been adopted in 14 states (panel), ranging from a Kansas provision that requires abortion providers to describe the fetus to women as a “whole, separate, unique, living human being” to a South Dakota regulation compelling women who want an abortion to undergo counselling at pro-life pregnancy centres.
Selected abortion legislation passed in 2011
  • State universities prohibited from using state or federal funds to train abortion providers
  • Ban on abortion after 20 weeks, with few exceptions, is enacted based on idea that fetuses feel pain after this point
  • Ban on abortion after 20 weeks, with few exceptions, is enacted based on idea that fetuses feel pain after this point
  • Women to be presented with a statement that an abortion “will terminate the life of a whole, separate, unique, living human being”.
  • Children require written consent from two parents before obtaining an abortion
  • Ban on schools teaching that abortion can be used to prevent the birth of a baby
New Hampshire
  • Legislature passes bill requiring abortion providers to notify the parent of a child seeking an abortion 48 h before it is undertaken
North Dakota
  • State to publish materials referencing the scientifically dubious link between abortion and breast cancer
South Dakota
  • Mandatory 3-day wait before a woman can have an abortion
  • Mandatory counselling at an anti-abortion pregnancy centre
  • Doctors required to describe the fetus to women, as well as offer the option of playing its heartbeat
  • Private coverage of abortion banned, with few exceptions; also, state health-insurance exchanges will not be allowed to cover abortions, with few exceptions
“This is a year that poses significant challenges to Roe vs Wade”, said Elizabeth Nash, a policy expert at the Guttmacher Institute, referring to the landmark 1973 Supreme Court case that affirmed a woman’s right to an abortion until viability, defined as beyond 24 weeks.
Opponents of abortion, for their part, say that abortion restrictions are long overdue. “As long as we have liberalised abortion in this country, countless unborn children will die every year”, said Daniel McConchie, vice president of government affairs at Americans United for Life, an organisation that provides model anti-abortion legislation to conservative lawmakers across the country. As they toldThe Lancet, conservative politicians are determined to circumscribe abortion laws that they view as overly permissive. “I am pro-life and my ultimate goal is to overturn Roe vs Wade”, said Carl Wimmer, a Republican representative in Utah.
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US anti-abortion groups march to express opposition to Rode vs Wade, Jan 24, 2011
Individual states have some latitude to enact their own abortion legislation, and recent efforts to clamp down on abortion gained momentum after the 2010 US elections, when the Republicans won hundreds of seats in state legislatures. In Kansas, for instance, restrictions on late-term abortions were vetoed by a previous Democratic Governor, Kathleen Sebelius. But since Sam Brownback, a Republican, took the post this year, the state has passed a range of abortion laws, including lowering the age at which a fetus can be terminated to 20 weeks and enforcing stricter reporting requirements for children.
The health-care reform initiated by President Barack Obama also spurred a heated debate over abortion, particularly whether the insurance plans to be offered on the new state-based insurance exchanges would cover the procedure. “It almost seemed like the entire law was about abortion, because that’s where the debate was”, said Nash of the Guttmacher Institute.
Four key issues have now emerged: the age at which fetuses can be aborted; what kind of information women should receive about a fetus before it is terminated; whether insurance policies should cover abortions; and how long women should have to wait between an initial consultation and the abortion procedure.
This year, Oklahoma, Kansas, and Idaho have banned abortion after 20 weeks, based on the disputed supposition that fetuses can feel pain after that point. Nebraska passed a similar law in 2010.
In Nebraska, anti-abortion activists say that the new law is merely a corrective that takes into account new medical understandings of fetal pain since Roe vs Wade. “The court did not have a window into the womb”, said Julie Schmit-Albin, executive director of Nebraska Right to Life. “Now it makes sense to push to the envelope on this matter because of new technology.”
But LeRoy Carhart, a doctor who provides late-stage abortions in Nebraska, said that such procedures were necessary when a fetus would not survive until birth or would experience great suffering after it was born, eventualities that are not provided for in the new law. Carhart, who was a colleague of George Tiller, the abortion doctor who was shot to death by an anti-abortion activist in 2009, characterised the law as an attack on women’s rights. “All it’s doing is denying women the right to take care of their lives the way they want to”, he said. He now sends patients who need late-stage abortions to a clinic in Maryland.
At the heart of the issue is a debate on when fetuses experience pain. According to a 2010 report by the UK’s Royal College of Obstetricians and Gynaecologists (RCOG), this does not happen before 24 weeks as the central nervous system is not sufficiently developed. Indeed, Mark Rosen, an obstetrical anaesthesiologist at the University of California, San Francisco, said the new laws are “not based on science”. But researchers are not unanimous. KJS Anand, a professor of paediatrics at the University of Tennessee Health Science Center, contests the RCOG paper and said his research accords with the legislation.
Another contentious issue is the kind of information women should be compelled to receive about a fetus before it is terminated. In Texas, a new law mandates that women should be provided with a description of the fetus, and offered the option of hearing the heartbeat if it can be detected. Roger Evans, senior legal counsel at the reproductive health services provider Planned Parenthood, described this as “torture”.
And, in Nebraska, a new law specifies that ultrasound screens should always be turned towards the patient, although women can choose to look away. Proponents of the law argue it is necessary because some clinics might have prevented women from seeing the screen. But others say that the law is intended to dissuade women from having an abortion by fostering a sense of emotional connection with the fetus, or simply by making the process more complicated.
“It has changed nothing in my practice except it makes it harder and more expensive for women to have abortions”, said Carhart, the Nebraska abortion provider. He added that the screens in his practice were already always turned towards patients.
Insurance coverage is another major area of debate. In Utah, for example, the legislature has passed a law banning insurance companies from offering coverage for abortion, with few exceptions, such as when pregnancy is the result of rape or incest. “It’s fundamentally wrong to force people to subsidise and help pay for a behaviour that they fundamentally disagree with”, said the law’s sponsor, Republican representative Carl Wimmer. A supervisor at one of the state’s main abortion clinics, the Utah Women’s Clinic in Salt Lake City, said it did not accept payments through insurance in any case, but Wimmer said his legislation was a “pre-emptive action” before states begin to offer their own insurance policies as a result of health-care reform.
A final issue is how long women should have to wait between an initial consultation and the actual procedure. South Dakota has passed the strictest law in the country, imposing a mandatory 72-h waiting period. The law’s Republican sponsor, Roger Hunt, told The Lancet that his main objective is to ensure that women “have adequate time to think about…terminating an unborn child’s life”.
Once it goes into effect in July, the law will make abortion far more difficult for South Dakota women, said Sam Ellingson, programme coordinator at the American Civil Liberties Union (ACLU) in South Dakota. The state has only one provider of non-medically necessary abortions, in Sioux Falls, so the waiting period means that some women will have to make a long journey twice or stay in the city. “It’s an attempt to put obstacles in a woman’s path”, she said.
The law has another provision with a more transparent purpose: women who want an abortion must undergo counselling at so-called pregnancy counselling centres. But, according to the law, such centres can only be certified if they help mothers “maintain and keep their relationship with their unborn children” and do not recommend abortion.
Abortion restrictions that reach further are on the horizon. Ohio lawmakers are considering a bill that would ban abortion once a heartbeat can be detected. “It’s a virtual ban on abortion because you can probably detect a heartbeat at 6 to 8 weeks”, said Rachel Sussman, a policy analyst at Planned Parenthood.
Pro-choice organisations are now considering their legal options. In South Dakota, the ACLU is challenging the 72-h waiting period. And in Nebraska, Carhart said that he and his attorneys are biding their time before challenging the ban on late-stage abortions. Meanwhile, opponents of abortion, say that the latest restrictions are just the beginning.