Alabama abortion ban—part of new efforts to restrict abortion in the United States

Abortion bans in Georgia, and now Alabama, are part of a growing push against women’s reproductive rights in the US.

In March, the Georgia legislature passed HB481, or the Living Infants Fairness and Equality (LIFE) Act. This bill effectively lowers the gestational limit for abortion from 20 weeks down to when the fetal heartbeat can first be detected, at about six weeks. This is one of the most restrictive abortion laws in the US.

On Tuesday 14 May 2019, Alabama’s Republican-controlled state senate passed a bill to outlaw abortion, making it a crime to perform the procedure at any stage of pregnancy. The ban allows exemption only when a women’s health is at serious risk and contains no exemption for rape of incest.

These abortion bans are part of a family of proposals being seen across US state and federal government. Five other states—Arkansas, North Dakota, Kentucky, Mississippi, and Ohio—have already passed similar bills banning abortion once a fetal heartbeat is detected. All of these laws have been blocked by states judges as unconstitutional. Since 2017, twelve other states and the US Congress have also proposed such bans. Bans on abortion before viability at 24 weeks gestation, especially those that ban nearly all abortion, have been blocked in every state they have passed in so far. The point of introducing these bans is to eventually force the issue to the Supreme Court in order to open up an opportunity for the reversal of Roe v. Wade.  

Mitch McConnell, Kentucky Republican, United States Senator and the Senate Majority Leader, is one of the most powerful people in American politics and very attuned to his party’s preferences and prospects. The list of bills he has cosponsored since the 2016 election is full of abortion restrictions, and the titles say it all: the “Born-Alive Abortion Survivors Protection Act,” “Pain-capable Unborn Child Protection Act,” and the “Protecting Life in Global Health Assistance Policy Act” are among three of the most important pieces of legislation he has cosponsored in the 119th (2019-2020) session. Internationally, the Trump Administration has extended and strengthened the “Mexico City policies,” aka the global gag rule, and is now extending them domestically to restrict federal funding to providers who refer for abortion care.

Since the LIFE Act bans abortion once a fetal heartbeat can be detected it effectively bans abortion for virtually all patients in the state. At the point that a fetal heartbeat can be seen on ultrasound, around 6 weeks, most women have only just missed a period and many won’t even know they are pregnant. One of us (NG) cannot begin to count the number of patients who don’t realize their period is late, or who never had regular periods to begin with, or who haven’t started getting periods again after giving birth or while they are breastfeeding.

Bans on abortion obstruct the provider-patient relationship, the sanctity of which is a cornerstone of medical care in our country and they take away a patient’s right to make their own medical decisions. However we may feel about abortion, we can all agree that health, not politics, should drive important medical decisions.

Chipping away at abortion rights…

Public opinion on abortion has been very stable in the US over time. Seven in ten Americans support legal access to abortion care and one in four American women will have an abortion in their lifetime. Abortion is now also a highly partisan policy—regardless of what Democratic and Republican voters think, the two parties are now solidly on opposite sides of the issue, which makes serious federal legislation even less likely. It also, however, means that the elites of the highly mobilized and powerful Republican party are committed to opposing abortion rights and have put considerable thought into strategies to do so.

The Supreme Court, in a sense, has reflected both the stable public opinion and intense opposition to abortion with almost thirty years of jurisprudence dating back to Planned Parenthood v. Webster in 1992. These decisions try to split the difference. They reaffirm the basic logic of Roe, but create spaces for states to introduce special restrictions and bans that over time make abortions harder to access. Abortion politics since then has been trench warfare across states and sometimes the federal government in which proponents and opponents of abortion rights have tried to get judges elected and appointed who will share their views, while opponents propose increasingly novel restrictions on abortion.

Senate Republicans’ refusal to confirm Obama nominee Merrick Garland to the Supreme Court, and their subsequent confirmation of Neil Gorsuch and Brett Kavanaugh (the latter replacing abortion rights waverer Anthony Kennedy), as well as the highly successful campaign to cultivate and appoint federal judges who oppose abortion, mean that these increasingly novel challenges to abortion rights face steadily fewer restraints. Even if the Supreme Court never overturns Roe v. Wade, it could eventually permit the rights within to be narrowed down to almost nothing.

…with considerable success

The strategy works to deter providers from offering abortion care, and creates a risk for any provider engaged in women’s healthcare that the increasingly loose and capricious definition of abortion might allow a prosecutor to define as illegal abortion. The nonsensical scenarios and clinical indications these laws discuss are a feature, not a bug: if “partial-birth abortion” or “abortifacients” or similar pseudo-clinical procedures are banned without being well defined, then any provider doing reproductive care might risk criminal penalties. Given that prosecutors and often judges around the US are local and state elected politicians with abundant discretion and strong political profiles, any discretion afforded them will eventually be used against abortion providers.

The distributional consequences are obvious. The poorest and most vulnerable women have already, in much of the US, lost their practical access to abortion care since poverty, rurality, work schedules, domestic violence, caring responsibilities, lack of a car and many other problems can keep a woman from taking time to travel a long distance for several days in order to have the procedure. As providers are made scarcer, and clearly identifiable providers such as Planned Parenthood scarcer still, abortions will become unavailable to more and more middle class women who might not be able to leave their jobs or families for several days. Eventually abortion care will revert to what it was before Roe v. Wade: something mostly available to the rich, who can travel, and the desperate, who will seek out illegal abortion. Hypocrisy will reign as the political system looks away from this situation. And the politics of reproductive repression will move on to the newer front of reducing access to contraception.

Other costs of these bills

Even if these laws are eventually deemed unconstitutional, they are not costless. Once they are challenged in court, which they inevitably are, state taxpayers pay to defend them. These are resources which then do not go towards other things in the states, such as improving the health of women. Georgia already has the worst maternal mortality ratio in the US, and bills such as this do nothing to actually improve the health of women.

The best way to actually reduce abortion is to provide all women with access to highly effective forms of birth control and comprehensive sex education. These aspects are noticeably missing from all of these bills that ban abortion at different points in pregnancy. Politicians are not medical experts and should not be inserting themselves between women and their medical decisions. A woman should be able to focus on making the right decision for herself and her family, and healthcare providers should be able to provide the full range of safe, effective medical care without political interference.

Scott L.Greer, Professor of Health Management and Policy, University of Michigan School of Public Health

Natalie Gladstein, OB-GYN in Tennessee and Physicians for Reproductive Health Fellow

Sarah Rominski, Research Assistant professor in the Department of Obstetrics and Gynecology, University of Michigan Medical School.