The Latest Strategy To Prevent Women From Getting A Safe Abortion

A number of states have unleashed a new strategy to further restrict a woman’s legal right to end a pregnancy: Ban the safest way to perform a second-trimester abortion. 

Called Dilation and Evacuation (D&E), this type of surgical abortion has become the only legal option left for abortions that take place after 14 weeks that doctors consider safe. But, using inflammatory language describing the D&E procedure as “dismemberment” abortion, state lawmakers are moving to block doctors from using it.

If we have an anti-choice president and Supreme Court, it could easily push us back to a pre-Roe era.

In the words of Mary Spaulding Balch of the National Right to Life Committee — the anti-abortion group behind draft legislation for D&E bills: “Dismemberment abortion kills a baby by tearing her apart limb from limb.”

The flurry of state-level activity over D&E has intensified since this legislation was first introduced in 2014. Just last week, Alabama passed a D&E bill — paired with legislation that would essentially treat abortion clinics like sex offenders. In March, West Virginia lawmakers overrode their governor’s veto on a D&E bill that’s now slated to go into effect at the end of May.

All told, at least 15 states have proposed new D&E bans this session. If these bills become law, and follow the path of previous abortion restrictions that eventually became federal law, women may no longer be able to obtain a legal abortion when they’re in most need. 

And according to some legal experts, this emerging trend could ignite a real fight to revoke a woman’s constitutional right to an abortion — especially with the threat of a Republican-led country on the horizon. 

“This certainly isn’t an issue for use to take lightly,” said Leslie McGorman, the national political director at NARAL Pro-Choice America, who is working to educate voters on what these bills would really do. “If we have an anti-choice president and Supreme Court, it could easily push us back to a pre-Roe era.” 

These terms have no basis in medical language.

In Oklahoma and Kansas, which passed the first D&E bans in the nation last year, the laws are on hold as they’re being litigated. McGorman and other NARAL staff are concerned people will leave the legislative process to the courts, assuming it will figure itself out without their input. But voters, McGorman said, are the ones who could actually make or break the future of this anti-abortion strategy in the upcoming election.

McGorman isn’t speaking in hypotheticals. 

The last time the United States had a federal government led by anti-abortion conservatives, in 2000, an eerily similar bill banning a safe second-trimester abortion procedure was upheld as law by the Supreme Court. Called Dilation and Extraction (D&X) — and construed as “partial-birth abortion” among those in opposition — this technique was used for a small fraction of abortions after 21 weeks of gestation.

The Supreme Court was convinced to uphold this ban because of the existing alternate procedure, D&E, that still left an option for women who needed later procedures. Thus, they would not violating constitutional law by creating an "undue burden" for a woman seeking a second-trimester abortion. Now that states are fighting to do away with D&E -- the final safe option for later abortions -- some argue that it won't pass constitutional scrutiny. To follow the law, women require an alternative method. 

But McGorman said it's not that simple. "For anti-choice lawmakers, this argument is not persuasive at all," she said. 

The two major court cases upholding the right to an abortion each introduced a significant rule to determine whether or not an abortion law is legal. In 1973's Roe v. Wade, the court deemed an abortion to be legal until the fetus is "viable," or has the ability to exist outside the mother's womb. In 1992's Planned Parenthood vs. Casey, the court ruled that accessing an abortion must not place an "undue burden" on a woman seeking an abortion. 

These two decisions, while monumental in upholding abortion rights, have largely left the terms of a "viable abortion" and "undue burden" undefined. Instead, the definition is left in the hands of whatever legislature carries forth a bill. In the argument that banning D&E procedures puts an "undue burden" on the pregnant women, lawmakers could easily retort that instead, in their terms, it would be an abortion on a "viable" fetus -- thus, making it illegal. 

For a state to say 'We care about women's health,' but then ban every abortion technique is pretty absurd.

Experts in the field of abortion law can never be certain if a law will pass a constitutional test. That's where the Center for Reproductive Rights (CRR) comes in. 

CRR has been the major legal force arguing cases against state restrictive abortion bills for years. At the moment, it's in the depths of litigation for lawsuits against the two D&E bans in Kansas and Oklahoma. CRR attorneys are already seeing similarities between these new pieces of legislation and the past D&X laws -- specifically in the bills' wording. 

The legislation seeking to ban D&E is littered with phrases like "ripping babies apart limb from limb," "slicing, crushing, or grasping a portion of an unborn child's body," "extracting [an unborn child] one piece at a time," and other language meant to shock and disgust. This is similar to the way that D&X was characterized -- and partially to blame for the success of the 2000 ruling. But according to legal experts, these words are only meant to mislead. 

"The language is intentionally inflammatory and dramatic," said Amanda Allen, the senior state legislative counsel for CRR. "The graphic terminology is meant to paint abortion providers and people who want an abortion in the second trimester as evil. These terms have no basis in medical language."

Allen pointed out the irony in this attack on women needing this type of abortion: Pregnant women are sometimes forced to get a second-trimester abortion because other conservative policies have blocked them from obtaining one at an earlier date. 

Abortions that occur past 12 weeks of gestation are the least common -- at least 80 percent of all abortions take place in the first trimester -- and earlier procedures are preferential from a medical standpoint. But, as restrictive laws force abortion clinics to shutter, leaving some states with only one facility, many women don't have the luxury to avoid a later abortion. Researchers have foundthat women located hours away from an abortion clinic are far less likely to find the time and money to make an appointment within their first trimester. And for those who can't access an abortion in a safe time-frame, dangerous, illegal, and DIY attempts at an abortion may be the only option -- despite its potentially fatal outcomes. 

For abortion advocates, women's health remains the priority. But when anti-abortion lawmakers attempt to pass laws to "protect women's health," like D&E bills, they're quick to point out the hypocrisy. 

"For a state to say 'We care about women's health,' but then ban every abortion technique is pretty absurd," said NARAL's McGorman. "Anyone can see that's not true."

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Think Progress / Alex Zielinski / May 9, 2016