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All or Nothing:

A Look at the Recent Trend

in Abortion Laws

by Bruno Snow | Spring 2019

A number of US states are seeking to alter federal abortion laws by passing “heartbeat bills” and “trigger laws.” The timing of these moves makes sense, as the Supreme Court has become increasingly conservative. Nonetheless, these laws have no effect on the present because they have either been ruled unconstitutional or only take effect in a hypothetical, future world. While state legislatures have the right to challenge the federal government in the US system of federalism, the current efforts on this front appear to be misguided.

3.  Ibid.

6.  Reis Thebault. “GOP Governor Signs Law That Bans Abortion before Some Women Even Know They're Pregnant.” The Washington Post, WP Company, 22 Mar. 2019

A recent wave of anti-abortion laws has swept across a number of American states. While there have been numerous challenges to Roe v. Wade and Planned Parenthood v. Casey, the passage of new laws represents more direct attempts by states to change legal precedent. “Heartbeat bills” make abortions illegal as soon as a fetal heartbeat can be detected, based on the conclusion that a human heartbeat is enough to indicate a person. “Trigger laws” are laws that are unenforceable, but may achieve enforceability if a key change in circumstances occurs. In this case, trigger laws become enforceable if Roe and Casey are overturned, in which case, they would ban abortion altogether in a number of states. Legislatures that have passed these measures believe that heartbeat bills will almost certainly lead to legal challenges and potentially reverse the decisions in Roe v. Wade or Casey v. Planned Parenthood. If these decisions are reversed, abortion will be altogether abolished through the implementation of trigger laws. In doing so, however, these states fail to presently advance their cause, misdirect their legislative efforts, and overreach into the medical practice.

 

Abortion has long been a heated topic of debate. On one end, individuals who identify themselves as pro-choice argue that women have a fundamental right to control their own bodies, as affirmed by the US Supreme Court in its interpretation of the Constitution during the landmark case of Roe v. Wade and Casey v. Planned Parenthood. Roe v. Wade held that a woman's right to an abortion falls within the right to privacy protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and allows states to determine abortion laws regarding the second and third trimesters. Casey v. Planned Parenthood upheld Roe, but it also upheld most of the Pennsylvania provisions that limited abortion access. The justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."  On the other side, individuals who identify as pro-life posit that life begins at conception, making fetuses humans and abortion equivalent to murder. The pro-life side is extremely unsatisfied with the current precedent relating to abortion and has incessantly fought to change it. Thus, they have taken action at the state level in order to apply pressure in the hopes of reversing previous legal decisions.

The challenges stem from states that feel that current abortion laws are incompatible with the Constitution at the macro level and community values at a micro level. Utilizing the state legislatures, they have created various laws that seek to overturn previous abortion decisions and, in some states, hopefully, ban abortion altogether. These moves are largely a matter of timing, as these states are seeking to use their Republican majority legislatures and the increasingly conservative Supreme Court to limit or abolish abortions.[1]

 

It is important to note that the recent trend for these states is in many ways two-fold. One part of the plan to get rid of abortions is the use of “trigger laws.” These laws date back to the Roe decision in 1973 in many cases. States that have passed such trigger laws include Arkansas, Louisiana, Mississippi, North Dakota, and South Dakota. Eight others have proposed such bills in late 2018 and early 2019, however, making it clear that some states anticipate the reversal of abortion precedent in the near future.[2]

Trigger laws are a way to ensure that abortion will be automatically illegal in the event that states are allowed to regulate the procedure, which would be the case if Roe v. Wade were to be overturned. The majority of these trigger laws read that the law would “become effective immediately” in the event a decision by the Supreme Court “reverses, in whole or in part... thereby, restoring to the state the authority to prohibit abortion.” Various states do not give exceptions in the case of rape or incest, while most at least make exceptions if the mother’s life is at risk.[3] If Roe is overturned, these trigger laws will make performing or prescribing an abortion a felony. Liberal states are also preparing for a post-Roe v. Wade world, passing laws that would maintain or expand access to abortion. These laws have been introduced and gained traction in New Mexico, Virginia, Vermont, and even passed in New York. [4] In any case, states are preparing for the possibility of previous abortion decisions being reversed, without any certainty that this will occur.

In order to overturn past Supreme Court decisions and see that these trigger laws come into effect, states have opted to pass laws that are rather clearly unconstitutional. These laws are known as “heartbeat bills.” Instituting incremental restrictions to abortion access rather than outright bans has long been the preferred method of fighting abortion. The incremental restrictions have included clinic regulations, waiting periods, insurance coverage bans, mandatory counseling, and involuntary ultrasounds.[5] These efforts have hampered access to abortions but do little to achieve the goal of doing away with abortion entirely. Heartbeat bills ban virtually all abortions after a fetal heartbeat is detected, with an exception being if the mother’s life is at risk. With modern technology, heartbeats can be found just six weeks into pregnancy, which is well before some women know they are pregnant. Six weeks is also pre-viability. [6] Roe protects the right to pre-viability abortion, and the right to later abortions in narrow circumstances, so a heartbeat ban triggers a challenge to Supreme Court precedent. States with these bills hope that by triggering a challenge, there is a chance that precedent will be overturned. Despite heartbeat bills being ruled unconstitutional, as was the case for Iowa, states nevertheless continue to pass them.[7] There has been a shift from incrementalism to an effort for total abolition of abortion.

These “proactive” trigger laws and “boundary pushing” heartbeat bills pose various issues. The trigger laws are an attempt to create law under a hypothetical, future set of circumstances. While in many cases it makes sense to plan for the future, such as instances of catastrophe, it is not clear that it makes sense in this case. It is not a dire or urgent necessity that states fill a possible hole in abortion law, that could one day appear if legal decisions are reversed. It is simply not the job of state legislators to predict the future. In this case, legislators are legislating for a future that does not exist and is not guaranteed. It is not within the legislators’ purview to do this. They should instead direct their efforts towards the present and be certain that their legislation will have an impact. These laws have no impact on the present state of affairs. They represent misdirected efforts by American lawmakers. The time and effort that has been placed into creating these laws may never be realized. While a post-Roe future is certainly not beyond the scope of imagination, it remains only hypothetical at this point in time. If legislators truly want to create change regarding abortion, it may be wise to enact laws that are guaranteed to influence the real world, laws that are based on the certain rather than hypothetical.

The heartbeat bills present a few issues. First of all, they represent a desperate attempt to break legal precedent. Heartbeat bills have recently been ruled unconstitutional. Quite frankly, not much has changed that would suddenly make these laws constitutional. Little reason can be found for the continued passing of heartbeat laws in some states immediately after the same law is ruled unconstitutional in others. While this is clearly the strategy of pro-life states, it does not seem entirely effective. Again, in certain cases, defying the federal government may be useful, as civil disobedience can attest to. But, for now, the continued passage of these laws appears to be a futile effort to push a moral agenda that America currently does not align with and may never align with. Furthermore, the heartbeat bills affect the ability of ob-gyns to make ethical and professional decisions in the best interest of their patients. Bills of this sort do not reflect the desires of physicians and providers who serve their patients, but more often than not, the political motivations of state lawmakers. These laws potentially restrict physicians’ ability to comply with their ethical duties. The laws constitute a “level of intrusiveness in the doctor-patient relationship and a thorough disregard for the exercise of independent medical judgment. Regardless of beliefs concerning abortion, all physicians have reason to object on professional grounds to state interference with the practice of medicine.” [8] While it might be common practice for legislators to make laws in areas beyond their expertise and knowledge, it does not appear entirely sensible in this particular case.

Federalism endows states with a certain level of power in regard to governing themselves. Nonetheless, the federal government dictates the law of the land. So, while states have the right to challenge the federal government, it does not always make sense to do so. In the case of recent abortion laws, numerous states are seeking to advance their moral agendas by implementing laws that they know are likely to be controversial and currently unconstitutional. From time to time, these challenges may force the Supreme Court to reverse previous decisions and keep up with changing times. Regarding heartbeat bills and trigger laws, however, it does not appear to be the case that these laws are accomplishing anything. Heartbeat bills have already been ruled unconstitutional. Trigger laws simply have no effect on the present. With precedent being reaffirmed, neither of these laws seem to achieve anything, at least for the foreseeable future. Perhaps one day these laws will abolish all abortions, but for now, these efforts appear to accomplish largely nothing.

REFERENCES

1. David French. “GOP Legislatures, Throw Down the Gauntlet - Pass Heartbeat Bills.” Abortion Laws & Heartbeat Bills -- GOP Legislatures Need to Pass Heartbeat Bills | National Review, National Review, 21 Mar. 2019.

2. Kate Smith. “Abortion Would Automatically Be Illegal in These States If Roe v. Wade Is Overturned.” CBS News, CBS Interactive, 19 Mar. 2019.

3. Ibid.

4. Ibid.

5. Jessica Ravitz. “Courts Say Anti-Abortion 'Heartbeat Bills' Are Unconstitutional. So Why Do They Keep Coming?” CNN, Cable News Network, 26 Jan. 2019.

6. Reis Thebault. “GOP Governor Signs Law That Bans Abortion before Some Women Even Know They're Pregnant.” The Washington Post, WP Company, 22 Mar. 2019

7. Tony Leys. “Iowa 'Fetal Heartbeat' Abortion Restriction Declared Unconstitutional.” USA Today, Gannett Satellite Information Network, 23 Jan. 2019.

8. Hailey Cleek. “Ohio's ‘Fetal Heartbeat’ Bill and the Effort to Restrict Abortion Access.” Bill of Health, Harvard Law - The Petrie-Flom Center, 4 Dec. 2018.

1.  David French. “GOP Legislatures, Throw Down the Gauntlet - Pass Heartbeat Bills.” Abortion Laws & Heartbeat Bills -- GOP Legislatures Need to Pass Heartbeat Bills | National Review, National Review, 21 Mar. 2019.

2.  Kate Smith. “Abortion Would Automatically Be Illegal in These States If Roe v. Wade Is Overturned.” CBS News, CBS Interactive, 19 Mar. 2019.

4.  Ibid.

5.  Jessica Ravitz. “Courts Say Anti-Abortion 'Heartbeat Bills' Are Unconstitutional. So Why Do They Keep Coming?” CNN, Cable News Network, 26 Jan. 2019.

7.  Tony Leys. “Iowa 'Fetal Heartbeat' Abortion Restriction Declared Unconstitutional.” USA Today, Gannett Satellite Information Network, 23 Jan. 2019.

8.  Hailey Cleek. “Ohio's ‘Fetal Heartbeat’ Bill and the Effort to Restrict Abortion Access.” Bill of Health, Harvard Law - The Petrie-Flom Center, 4 Dec. 2018.