The Landscape For Legal Abortion Has Never Been More Dire

The Landscape For Legal Abortion Has Never Been More Dire

Two weeks ago, South Carolina’s Republican Governor Henry McMaster signed a near-total ban on abortions into law—the first, but not the last, abortion ban to pass in 2021. After McMaster signed the bill, the lawmakers and anti-abortion activists gathered around him broke into wild applause. It was, after all, the culmination of three years of organized, determined effort, work that itself built off of a decades-long plan to steadily chip away at abortion rights in the state—a plan whose end goal is now in sight.

Since 2019, when a wave of misleadingly named “heartbeat bills” were introduced seemingly en masse by Republican state legislators around the country, McMaster had promised that when a version reached his desk, he would enthusiastically sign it into law. Last year, Republicans didn’t have the votes; this year, after flipping three seats in the state Senate during last November’s election, that changed. The law, named the “Fetal Heartbeat and Protection from Abortion Act,” bans abortion after the very first beginnings of cardiac activity are detected in an embryo and criminalizes abortion providers, who could be charged with a felony if performing an abortion after six weeks.

The bill is extreme, exactly as it was intended. “Our battles are not over,” McMaster said that day, signaling what he likely knew would happen next. Almost immediately, Planned Parenthood sued the state on the grounds that the ban is clearly unconstitutional and won an injunction, kicking off the court battle that Republican legislators and the anti-abortion movement had wanted. As the prominent anti-abortion activist Lisa Van Riper had proclaimed at the bill signing, “This is the beginning, this is not the end.”

The goal of bans like South Carolina’s is obvious—the anti-abortion movement is looking for that test case to get rid of Roe. On Tuesday, Arkansas threw its hat into the legal ring, joining South Carolina when the state’s Republican Governor Asa Hutchinson signed his state’s even-more extreme abortion ban into law; Hutchinson acknowledged in a statement that “it is the intent of the legislation to set the stage for the Supreme Court overturning current case law.” We are already living in an era where, for millions of Americans, the protections of Roe are already largely nominal. Anti-abortion activists, unleashed during the Trump years to pursue even more radical goals, are no longer content to kill abortion access by a thousand cuts. They have been waiting for this moment for a long time; now, with state legislatures full of anti-abortion ideologues and a Supreme Court stacked in their favor, the conditions are ideal. “When you put those two together, you now have this environment where abortion restrictions and bans are quickly moving through state legislatures,” Elizabeth Nash, the Guttmacher Institute’s interim Associate Director of State Issues, told Jezebel. “Abortion opponents are not shying away from early abortion bans.”

In 2021, the landscape for abortion rights is perhaps the bleakest it has been in the years since Roe—the result of Republicans’ domination on the state level during the 2020 elections and the specter of an already anti-abortion Supreme Court that has only become even more so with the addition of Justice Amy Coney Barrett. According to Planned Parenthood, more than 200 anti-abortion bills have already been introduced this year in state legislatures, and in more than two dozen states, those include extreme abortion bans. As Planned Parenthood’s president and CEO Alexis McGill Johnson put it to Jezebel, “Abortion access is hanging on by a thread—and it’s only getting worse thanks to state legislatures controlled by anti-abortion majorities.” The Guttmacher Institute’s Nash described the flood of legislation as “an assault from all sides.” “We’re seeing bills move at a quick clip, faster than normal,” Nash said. She added, “It feels like the legislatures were primed to move abortion restrictions.”

The onslaught of bills is fueled by gains made by Republicans in already-conservative statehouses in 2020, as in the case of South Carolina’s ban. What’s happening in Montana is another example of that dynamic. Former Democratic Governor Steve Bullock regularly vetoed anti-abortion bills that made their way to his desk. But in 2020, the state’s voters elected a Republican governor for the first time in 16 years; as a result, Montana Republicans are quickly advancing a slate of anti-abortion legislation, including a 20-week ban, an ultrasound requirement, a ban on telehealth medical abortions, and a so-called “born alive” bill, the new favorite legislation of the anti-abortion movement that conjures up a medical impossibility in order to equate abortion with infanticide. The state’s newly installed Republican Governor Greg Gianforte, a man previously best-known for body-slamming a Guardian reporter, has said publicly that he would sign the 20-week ban as well as the “born alive” bill.

Driving this newly energized assault is the powerful, ultimate goal of getting a hearing before the Supreme Court. As near-total bans on abortion slowly move their way through the courts—ones that the Trump administration stacked with conservative judges—one test case has already reached the steps of the Supreme Court. The court is currently deciding whether to hear a case on Mississippi’s 15-week ban passed in 2018, one that lower courts have consistently rejected as unconstitutional. But whatever the Supreme Court decides to do, for people who live in states where Republican legislators now feel unleashed, the right to an abortion will increasingly be a right that exists only on paper. Soon, we’ll know just how far the movement can extend its reach.

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