2022 State Abortion Bans Are a Patchwork of Increasingly Extreme Laws
2022 State Abortion Bans Are a Patchwork of Increasingly Extreme Laws
As the country awaits the Supreme Court’s final decision in Dobbs v. Jackson Women’s Health Organization, this column highlights the myriad ways in which opponents of abortion are pursuing unprecedented incursions on that fundamental constitutional right.
This column contains a correction.
The U.S. Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health Organization strongly indicates that within weeks, Roe v. Wade and Planned Parenthood v. Casey will be overruled and the constitutional right to abortion will be denied. By overturning these constitutional protections, the Supreme Court will leave the regulation of abortion entirely to the states.
While the court’s ultimate decision in Dobbs will dramatically affect the lives of millions of people, in late 2021, the justices telegraphed their hostility to Roe when they let stand a Texas statute known as S.B. 8 while litigation proceeded. A near-total ban on abortion, S.B. 8 was and continues to be enforced through a particularly cruel scheme in which any person in the country is empowered to sue anyone who helps an individual access abortion care in Texas. The law is a brazen attack on women’s freedom to make intimate and personal decisions for themselves and their families, and is designed to foster fear and suspicion in communities.
In Dobbs, By Overturning Roe and Denying the Right to an Abortion, the Supreme Court Has Attacked Freedom
In the wake of that S.B. 8 decision, many states—predominantly in the South and Midwest and historically hostile to abortion—began churning out statutes at a rapid clip, seemingly in a contest to reach the furthest extreme: outlawing abortion care with the fewest exceptions. According to the Guttmacher Institute, so far in 2022, almost 550 abortion restrictions have been introduced in 42 states. Thirty-seven of those restrictions have already been signed into law. Many of these new laws are plainly unconstitutional under Roe, but it is clear that extremist politicians—wildly out-of-step with the views of the majority of Americans—feel bolstered by the actions of the U.S. Supreme Court and are already anticipating a country in which abortion rights are fair game.
To appreciate the extent to which women’s freedom will be compromised if states operate absent constitutional parameters, this column offers an overview of a few of the most egregious aspects of states’ recent anti-abortion bills.
Near-total bans, with cruel civil enforcement schemes
Despite the unpopularity of Texas’ S.B. 8, politicians in states such as Idaho and Oklahoma are embracing the law’s extreme nature and enacting statutes modeled after it. For example, Idaho’s governor acknowledged that under the bill, a rapist’s family could sue the doctor who provides an abortion to the survivor at any point beyond six weeks of pregnancy. Yet even as he acknowledged that the bill would likely “retraumatiz[e]” those survivors, he went ahead and signed it into law.
Texas’ S.B. 8 law also allows for that horrific possibility, due to the broad nature of the statutory language, although state policymakers have not directly addressed this. These laws speak to the rapidly growing power of the most extreme opponents to abortion: Now, even minimal exceptions for rape and incest survivors are being abandoned when states enact restrictions—despite the fact that only 15 percent of Americans believe abortion should be illegal in cases of rape.
Oklahoma has passed not one, but two bills of this nature—one already signed into law by the governor, and the other expected to be—incorporating the S.B. 8 bounty hunter enforcement scheme. The first of these bills, like in Texas, incentivizes people to file civil suits against anyone—neighbor, clergy member, Uber driver—who helps a person access abortion after six weeks of pregnancy.* The second of the Oklahoma laws, passed by the legislature in mid-May, is even more extreme than the first. It incentivizes civil suits to be filed against anyone who helps a person secure abortion care at any point after fertilization, except in cases of rape or incest that have been reported to law enforcement, or where the pregnancy presents a life-threatening medical emergency. It is unclear how these two laws would operate if both are in effect.
The U.S. Food and Drug Administration (FDA) allows for medication abortion—two pills a patient takes to end a pregnancy—to be prescribed through the mail, a practice it has found to be as safe and effective as in-person dispensing of the medication. Yet many politicians appear eager to substitute their own views for the FDA’s medical judgment. For example, in early May, Tennessee enacted a law that criminalizes the distribution of medication abortion pills by mail, making it a felony with a fine of up to $50,000. At least two other states, Kentucky and South Dakota, also passed medically damaging restrictions on medication abortion this year. To date, 19 states have enacted laws limiting medication abortion to in-person dispensing, contrary to public health standards and professional medical guidance. The in-person dispensing requirement is not only contrary to medical advice, but it also is enormously burdensome and in some cases prohibitive for those seeking to access such care, forcing expensive travel, child care arrangements, and missed work.
Total bans, with few exceptions
In March, both Wyoming and Oklahoma enacted total bans on abortion, with few exceptions—with Oklahoma’s law being particularly severe because it threatens criminal sanctions. This law is distinct from the other two Oklahoma bans described above, further compounding confusion surrounding what legal standards will be in place—and how they will operate—if they are allowed to take effect.
The Oklahoma governor signed into law a statute that would ban abortion from the moment a pregnancy can be detected; this law takes effect in August. Under this statute, only circumstances in which the patient’s life is directly threatened will be considered exceptions to the state’s abortion ban—not cases of rape or incest, or health concerns that may be severe but do not rise to the level of any immediate threat to a person’s life. The law makes providing care a felony with a maximum penalty of 10 years in prison or a $100,000 fine—or both.
The restrictions in Oklahoma will have a ripple effect beyond the state’s borders: After Texas’ S.B. 8 took effect, Oklahoma became a destination for Texans who could not receive abortion care in their home state. Now, many Texans and Oklahomans alike will be forced to seek abortion care hundreds or thousands of miles outside their state.
More bills are being drafted and considered in states across the country. Missouri, for instance, may attempt to regulate its citizens’ access to abortion even beyond its own boundaries. Louisiana considered making abortion, as well as contraception that does not prevent fertilization—including some intrauterine devices and Plan B—punishable as murder. In the face of national outcry, some members of the Louisiana legislature impressed upon the bill’s primary champion that they would only support the bill if it were changed dramatically, forcing him to withdraw it. Though the bill is currently not on the path to becoming law, Louisiana’s House Committee on the Administration of Criminal Justice voted it out of committee favorably, 7-2, in early May.
The extent to which the proposed legislation and newly enacted laws are misaligned with the values of the American public and restrict individual freedom, particularly for women, shocks the conscience—a standard, it should be noted, that the Supreme Court has applied in other legal contexts. As the country awaits the Supreme Court’s final decision in Dobbs v. Jackson Women’s Health Organization, it is important to shine light on the myriad ways in which opponents of abortion are pursuing unprecedented incursions on fundamental constitutional rights and actively disregarding the well-being and dignity of those who need care.
* Correction, June 9, 2022: This column has been corrected to clarify the nature of civil suits in Idaho’s statute.
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Former Legal Fellow
Maggie Jo Buchanan
Senior Director and Senior Legal Fellow, Women’s Initiative