Arkansas’ law adding more regulations on providers of medication abortions is but one example of the increased restrictions that states are seeking to put on abortion providers, according to advocates on both sides of the abortion debate.
The law, which was passed in 2015, requires clinics that provide medication abortions to have a contract with a provider that has admitting privileges at a local hospital. The law was challenged by abortion rights advocates and wound its way through the legal system, eventually making its way to the Supreme Court, which on Tuesday declined to hear the case.
As a result, the ruling of the 8th Circuit U.S. Court of Appeals in favor of the law still stands, although Planned Parenthood has said it will seek a temporary injunction to block the law from taking effect. In the meantime, however, Planned Parenthood has said it will stop providing medication abortions in the state.
The practical effect is that women in Arkansas who are seeking an abortion will now only have one place to go, said Elizabeth Nash, senior state issues associate at the Guttmacher Institute, a pro-abortion rights organization. “There were [originally] three clinics … and two of those clinics only provided medication abortions,” she said in a phone interview. “Those two clinics are closed, and the remaining clinic can only provide — for now — surgical abortions.”
Numbers Down
Arkansas now joins a handful of states that have only one abortion clinic; the others include North Dakota, South Dakota, Wyoming, Mississippi, Kentucky, and West Virginia, Nash said. “In some states, that has curtailed access dramatically,” Nash said. “Women may end up going to other states to access abortion there … or they may be delayed because they found out that they wanted an abortion early in the pregnancy, but they have to arrange an appointment several weeks in advance [since] there is only one clinic to go to.”
Kelly Marcum, legislative assistant at the Family Research Council, a pro-life organization, said in a phone interview that “numerous pro-life bills are moving at the state level.” For example, this past week, Louisiana legislators passed a bill to effectively defund Planned Parenthood in their state; while not mentioning the organization by name, the bill says that abortion providers in Louisiana will not be able to receive Medicaid funds.
And legislation at the federal level — even if it’s not successful — helps move things along in the states, she continued. “Even if a bill at the federal level doesn’t pass,” such as a ban on abortions after 20 weeks that was passed in the House but not the Senate — “we see momentum in the states to get [similar bills] across the finish line. With an administration that’s friendly to the pro-life moment, there is more momentum at the state level” to get these bills through.
In addition, Marcum said, “[President Trump] is putting in strict constitutionalist judges in various circuits, and that will help when these bills get bottled up in the courts.”
New Kind of Restriction
Currently, 43 states have laws that restrict abortion after a certain period of gestation, according to a report by the Guttmacher Institute. In addition, 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy.
The Arkansas law is a relatively new kind when it comes to medication abortions, according to Shivana Jorawar, state legislative counsel, at the Center for Reproductive Rights, a pro-abortion rights group. “We are seeing restrictions on medical abortion and telemedicine, but the requirement of admitting privileges being needed is a little unique,” Jorawar said during a phone interview at which a public relations person was present.
On the other hand, “I do think we’re going to continue seeing more pre-viability abortion bans,” she said. “We’ve been seeing 15-week bans in Louisiana and Mississippi. Those are new in that we haven’t seen 15-week [limits] before, but we have seen gestational bans for as early as 6 weeks, and I do think that more states are going to introduce these blatantly unconstitutional bans,” despite the cost to taxpayers of having to defend them.
In the end, however, the courts will end up protecting a woman’s right to choose, she predicted. “At the end of the day, if this makes it to the Supreme Court, every justice is obligated to respect and follow precedent, and there is a very firm precedent when it comes to abortion,” Jorawar said.
“Less than 2 years ago, [the Supreme Court] reaffirmed [abortion rights] in the Whole Women’s Health case. They made it clear that states can’t have laws that … impose burdens on this very fundamental right with no corresponding benefit, and the existing restrictions we see here fail that test.”
With the closing of Planned Parenthood clinics in states like Arkansas, more crisis pregnancy centers likely will appear, said Marcum. “We’ve seen in numerous states where abortion clinics have closed down that crisis pregnancy centers have grown nearby in response to the fact that there are still women who need help, and they are seeking organizations that will actually help them. What we’d like to see is Title X and Medicaid funds diverted from Planned Parenthood go to crisis pregnancy centers and community health centers that are equipped to empower women.”
Trump Effect
Steven Aden, chief legal officer and general counsel at Americans United for Life, a pro-life organization, agreed that for now, many of these state laws regulating abortion will continue to have a tough time in the courts, including a recently enacted bill in Iowa that would outlaw abortion after a fetal heartbeat is detected, which is usually at around 6 weeks. “We don’t anticipate early-term abortion limits … will make much headway in federal courts at this time,” he said in a phone interview. “We do think [the Iowa law] has an uphill battle.”
However, things could start to change as the Trump administration continues to appoint conservative judges, he added. “At this rate, you’d have to think that the drive to appoint constitutional conservatives/originalist judges will have an impact at some point down the road … just as [more liberal] judges appointed by [President] Obama had an impact.”
For now, there seems to be continued interest among states “to regulate abortion like any other outpatient procedure,” Aden said. “You’ll see principally bills going to surgical center regulation, chemical abortion regulations, and perhaps non-discrimination provisions outlawing abortion based on the baby’s gender or prenatal genetic characteristics.”
There is definitely a need for these types of bills, Aden continued. “In some states it has been shown that up to 90% of babies with Down syndrome are aborted,” he said. “There is certainly genetic counseling and genetic discrimination based on disabilities in the womb.”
“And with respect to gender science, it’s pretty well established that at least internationally and in many metropolitan areas in the U.S. where there’s a high number of immigrants, that there’s a market for abortion based on the gender of the baby, principally because the baby is a girl, so I think that’s important protective legislation,” he added.
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