State-by-state abortion limits appear headed for the courts

Planned Parenthood demonstration
A barricade separates abortion rights supporters and abortion opponents Friday, March 29, 2013, outside Planned Parenthood near University Avenue and Vandalia Street in St. Paul.
MPR Photo/Jennifer Simonson

The growing national trend toward state-by-state limits on abortion and abortion clinics will eventually have to be addressed in the courts, say experts on reproductive-rights policy.

Attention has been focused on state-level regulation of abortion since last month, when state Sen. Wendy Davis stood on the floor of the Texas Senate for more than 12 hours to block a vote on what would have become one of the most restrictive abortion laws in the country.

Davis' filibuster ended amid party-line chaos and a last-minute vote that left unresolved the question of whether the state could ban abortions after 20 weeks of pregnancy.

Texas isn't the only state trying to make changes to its abortion laws. Forty-one states have enacted abortion restrictions at different stages of pregnancy, according to The New York Times. The Guttmacher Institute, which advocates for sexual and reproductive health internationally, reports that 43 laws limiting abortions went into effect in 2012.

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"This is really a trend nationwide," Washington Post reporter Juliet Eilperin said Wednesday on The Daily Circuit, "particularly in a number of states where you have unified control between the governorship and the legislature."

Emily Ramshaw is editor of the Texas Tribune in Austin. She joined the conversation with Eilperin and law professors Caitlin Borgmann, of CUNY and Columbia, and Scott Gaylord, from Elon in North Carolina.

On Tuesday night, Ramshaw said, the Texas House took a preliminary vote to approve the abortion legislation blocked by Davis' filibuster in June. The vote was part of a special session called by Gov. Rick Perry. The House was to vote again on Wednesday. If the bill passes, it will head to the state Senate next week.

The move would be significant for Texas.

"The estimates right now are that 80 to 90 percent of clinics would have to close their doors," Ramshaw said.

But the question of timing — if the move is based on the political will of Texans, or on the momentum of abortion legislation across the country — is a big one. In Texas, Ramshaw said, it seems clear.

"When you look at the polling, you see the majority of Texans ... want it," Ramshaw said, although "a lot of people have attached their political will to this."

While it might sometimes feel otherwise in Austin — the "blueberry in the tomato soup," Ramshaw calls it — this is not the "war on women" that has played out elsewhere, she said.

"In Texas, you still have a state that is overwhelmingly conservative, and that crosses gender lines," she said.

In March, the Arkansas Legislature overrode its governor's veto and passed what was then the nation's most stringent challenge to Roe v. Wade, banning abortions at 12 weeks of pregnancy. North Carolina lawmakers are this month pushing a bill through the state Legislature that would heighten restrictions on abortion clinics in that state.

"What's really gaining traction now is a critique of abortion clinics themselves, and demanding upgrades," the Post's Eilperin said. In the 1990s, abortion opponents tended to go after federal and state funding of abortion, she said. But their tactics have shifted to focus on what they say is a concern for the health of the woman seeking the procedure.

Similar fights are happening closer to home, and have left newly passed abortion laws in the hands of the courts: in Wisconsin, a new law would close two of the state's four abortion clinics; and in North Dakota, a new law bans abortions at the point where a fetal heartbeat can be detected, which can be as early as six weeks into a pregnancy.

But the legal challenges to some of these newest laws have left them in limbo.

"At some point, opponents put the states on notice," Eilperin said. "Even once they're passed, it doesn't necessarily mean they're going into effect in some of these states."

The Supreme Court's precedent on abortion, set with the landmark Roe v. Wade case in 1973, guarantees a woman the right to an abortion until the point that a fetus is viable, usually at about 24 weeks of pregnancy.

"Roe v. Wade still holds sway in the national consciousness, but really the governing law is determined by a case called [Planned Parenthood v.] Casey," Elon's Gaylord said.

The Casey decision "allowed the states to do more in terms of restricting abortions," CUNY's Caitlin Borgmann said, but "the states can't impose an undue burden ... on women's access to abortion."

It was the Casey decision that set the standard — in a handful of sometimes confusing, contradictory ways — for what is known as the "undue burden" test, which bans states from putting undue burdens on a woman seeking an abortion. "Even in the opinion itself, there's this gray area as to what's constitutional and what's not constitutional," Gaylord said.

Borgmann, an abortion-rights advocate, suggested that the increased restrictions states have been putting on abortion clinics will eventually hit a point where it all comes down to the courts.

"Restrictions are becoming so onerous that they are endangering access to abortion," she said. "I think that we have to remember that these restrictions are not about safety, they're about making abortions unavailable."

Gaylord said these regulations will ultimately be tested in the courts. "I think a lot of this will be decided at the circuit and district court levels," he said. "I think you'll see a bunch of case-by-case analysis."

"Because these restrictions are not motivated by a desire to improve women's health but restrict access to abortion," Borgmann said, "there's going to be a tipping point."


States chipping away at Roe v. Wade
Interactive graphic: "A number of states in recent years have passed restrictions on abortions that strike at the foundation of abortion rules set out by Roe v. Wade and other Supreme Court rulings, which give women the right to an abortion until the fetus is viable outside the womb, usually about 24 weeks into pregnancy." (The New York Times)

Abortion restrictions in states
Interactive graphic: "Forty-one states have enacted abortion restrictions at different stages of pregnancy. The chart shows at which point after a woman's last menstrual period that state laws ban abortion. Each bar's height is proportional to the state's population." (The New York Times)

Three reasons the battle over abortion laws is here to stay
"Regardless of how the legal battle turns out in the end, the matter is now much more than a one-day story. And it's a reminder that in other states like Texas, where a heated debate over abortion laws is currently underway, the end of the legislative debate does not necessarily spell the end of the overall debate." (The Washington Post's The Fix blog)

If you are pregnant: Information on fetal development, abortion and alternatives
What is the law in Minnesota? An explanation of the statutes, rules, official handbook and additional resources related to Minnesota's Women's Right to Know Act.(Minnesota Department of Health)