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'We're a Divided Nation': Pro-Life Leaders on This Year's Abortion Laws

This spring's sweeping abortion bans represent the greatest assault on abortion rights since Roe v. Wade.
Supporters of Massachusetts Citizens for Life hold signs during a rally outside the Massachusetts Statehouse on June 17th, 2019, in Boston, Massachusetts. Opposing activists were rallying in advance of consideration by lawmakers of measures aimed at loosening restrictions on abortion.

Supporters of Massachusetts Citizens for Life hold signs during a rally outside the Massachusetts Statehouse on June 17th, 2019, in Boston, Massachusetts. Opposing activists were rallying in advance of consideration by lawmakers of measures aimed at loosening restrictions on abortion.

In the United States, there's probably never been a better time in the last 46 years to consider yourself pro-life. That's been the case since the country elected President Donald Trump and handed him two seats to fill on the Supreme Court, tipping the balance toward justices with unfavorable views of Roe v. Wade (an opportunity enhanced by pro-life Republican presidents before him and the machinations of Senator Mitch McConnell (R–Kentucky) in the waning days of Barack Obama's presidency).

But the movement has been electrified through a spring of sweeping abortion bans in state legislatures. Suddenly it has seemed not just powerful, but supercharged.

The heady year of anti-abortion successes thus far represents the greatest assault on abortion rights since 1973, and it can't be concisely summarized: The Guttmacher Institute's count as of June 1st lists 17 separate kinds of abortion restrictions in 53 separate laws enacted in 17 states, covering an array of areas including health insurance and the concept of fetal personhood. But by far the biggest source of momentum has come from the "heartbeat" bills, laws enacted in five states this year that ban abortions at about six weeks of pregnancy, when an embryonic heartbeat can be detected (at that stage, simply the vibration of cells that could later form the heart). Missouri's eight-week ban is based on a similar idea. And, of course, Alabama's ban outlaws abortion nearly entirely (the only exception provides for circumstances of grave danger to a pregnant person's health).

Catherine Glenn Foster, the president of the influential legal and lobbying group Americans United for Life, tells me she thinks the level of national alarm over these developments is exaggerated. "The whole idea of Roe being overturned tomorrow has been so overblown it's laughable," says Foster, namely because these abortion bans are years away from U.S. Supreme Court review, if the court decides to review them at all. Court observers also speculate that it will adopt a slow dismantling of abortion rights, rather than a swift rejection of Roe. As for the six-week bans, she says, "you can't understand those without understanding New York."

Foster and others in the pro-life movement told me the bans were a reaction to a New York law passed in January that, among other things, has made it legal for people to access abortion after 24 weeks of pregnancy if the fetus isn't viable or the pregnant person's health is at risk. Conservatives pounced on the law, labeling it state-sanctioned infanticide and painting the image of healthy, developed babies being "ripped from wombs" and killed, as Trump has memorably and wrongly described the impact of the legislation.

But the bans are also designed precisely to challenge the Roe precedent before a Supreme Court that might be willing to overturn or gut it, including in Ohio, the state that pioneered the heartbeat legislation. In December, a few months after Justice Brett Kavanaugh's confirmation, Ohio Right to Life decided to back the six-week ban bill, says vice president and executive director Stephanie Krider, nearly eight years after it was first introduced. At that time, in 2011, Ohio Right to Life had been leery of the "missing judicial piece," she says. Now, the group feels "encouraged." Krider believes the six-week bans, rather than Alabama's total ban, have "the best chance of being heard" by the Supreme Court thanks to Trump's nominees.

The law is a "big leap" in Ohio, where abortion is currently banned after 20 weeks of pregnancy, she says. (In fact, such bans would represent a dramatic curtailing of access in every state where they have passed, likely outlawing most abortions, since at six weeks, many women might not know they're pregnant.) "It's hard to understate what a huge step it is for us."

"It will probably be our biggest success for some time until the Supreme Court takes action," Krider adds.

Cathi Herrod, one of Arizona's most powerful pro-life lobbyists, has seen her state buck the trend of conservative lawmakers passing extreme abortion laws. Last year, AUL named Arizona the most pro-life state in the nation. This year, Herrod, the president of the Center for Arizona Policy, represents the rare case of a pro-life activist stymied by a Republican-dominated state legislature, after her effort to fund a new hotline to promote childbirth over abortion and connect pregnant people to resources failed. She calls her legislation an "easy issue" of "common ground" and blames the outcome on hyper-partisanship. "It comes down to what side is Planned Parenthood on, and what side the pro-life community on," she says.

As for the slew of bans in like-minded states, she says, they're the fruit of a divided nation.

Just as dramatic as the six-week bans this year has been the push in liberal states to protect or increase abortion access at a hither-to unseen pace—an opposite reaction to Kavanaugh's replacement of the now-retired Justice Anthony Kennedy, the only conservative on the bench in recent years who voted with liberal justices to uphold abortion rights. New York and Maine have both passed laws expanding who can provide abortions beyond physicians. Maine and Illinois have passed laws expanding insurance options for abortion—key for equitable access to a procedure that typically costs between $500 and $1,500.

Still, there is a sense that pro-choice politicians are playing an epic game of catch-up. Until this year, Guttmacher only considered three states to be supportive of abortion rights—most were ranked as hostile, or, at best, indifferent. This spring, the organization released a new map that explores the growing nuance of state laws and how they add up to an overall posture toward abortion, one that creates two new categories (leaning toward or away from abortion rights), to chart it. It now counts 14 states as leaning toward or supportive of abortion rights, 30 states as leaning away from or hostile to abortion rights, and six as "middle-ground."

For Foster, the deepening canyon between conservative and liberal state abortion policy is a natural precursor to a post-Roe country.

"What both sides of that coin represent is really a return of the democratic process, a return of the issue of abortion to where it belongs: in the states," she says. "This is what it should be."

Whether most Americans would agree with that is unclear. Recent polls have shown Americans don't want to see Roe overturned, but their more detailed views can be conflicting. Most want to see at least some restrictions on abortion, and there is a broad consensus that it should be legal in cases of rape and incest—two previously common exceptions to abortion bans, but which pro-life groups reject. Many of the bans passed this year don't include those exceptions. Politicians and activists have argued they punish a potential child for the "sins of the father," as Foster, who says she herself is a rape survivor, puts it: "We're looking to that question of what is that thing in the womb? Is it a human being, or is it something else?"

Benjamin Clapper, the executive director of Louisiana Right to Life, believes that both sides of the debate have a weakness when it comes to appealing to the majority of Americans.

"The nation over the last few months has been pulled from one extreme to the other," he says. (Clapper views New York's law as "abortion on demand" up until the point of birth.) "I think it's somewhat difficult for the middle of America to understand sometimes what their position is. They don't want what New York did, but they may not necessarily right now want what Alabama is doing."

As a result, abortion rights groups are going to want to focus on conservatives' lack of rape and incest exceptions, he predicts, and the pro-life movement is going to want to draw attention to laws like New York's.

Foster and AUL's position (which Trump also advanced while campaigning in 2016) that states are beginning to act as they would post-Roe carries a key assumption. It supposes that, if and when the right to abortion is expunged from Supreme Court precedent, the issue will somehow be settled. A sort of "we'll have our states, they'll have theirs." Such peace is hard to imagine. Pro-choice activists in anti-abortion states are highly unlikely to abandon those they've been fighting for, and pro-life groups spread across liberal states aren't likely to give up on the zygotes, embryos, and fetuses they've been agitating for (AUL has submitted testimony this year objecting to reproductive rights legislation in Rhode Island, Massachusetts, and Vermont). Rather than settling into some new near-future, this year's developments have felt much more like digging in, and preparing for war.