Editor’s Note: This piece will be updated throughout July as cases progress through the courts.
It’s been a banner year for legislative assaults on reproductive rights.
In the past six months, legislators have introduced nearly 400 anti-choice measures in states across the country. Sixteen states have considered banning abortion once a fetal “heartbeat” is detected. At least 15 have considered laws that would place the rights of a fetus over those of a pregnant person. Twelve states have considered measures that would prohibit abortion at 20 weeks’ gestation. Conservative state lawmakers introduced total abortion bans, laws requiring physicians to lie to their patients about the efficacy of “abortion reversal,” laws criminalizing certain methods of abortion, and laws forcing unnecessary regulations on abortion providers.
This is the culmination of years of teamwork between state lawmakers and anti-choice groups. They’re trying to tee up a challenge to overturn Roe v. Wade—and they’re making abortion care increasingly difficult to access in the meantime.
Sex. Abortion. Parenthood. Power.
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At least 26 abortion bans have already been enacted in 2019. Unless the courts do something to stop them, here are the laws that will go into effect in July.
Several abortion restrictions are set to become law next month in the state of Arkansas. Let’s start with the unconstitutional abortion bans. Beginning July 24, it will be illegal to perform or induce an abortion after 18 weeks’ gestation or when a patient is seeking the procedure due to a diagnosis of fetal Down syndrome
Except in cases of medical emergency, or when a pregnancy is the result of rape or incest, the “Cherish Act” makes it a felony punishable by up to six years in prison to perform an abortion if a fetus has reached 18 weeks’ gestational age. Prior state law prohibited abortion at 20 weeks’ gestation. Lawmakers in Utah this year passed a nearly identical ban which has already been temporarily blocked.
The “Down Syndrome Discrimination by Abortion Prohibition Act” makes it a felony, also punishable by up to six years in prison, for a physician to perform an abortion if they know the pregnant person is seeking it due to a possibility the fetus has Down syndrome. Before the procedure, a doctor must ask the patient if they’re aware of any test result or diagnosis suggesting that the fetus may have Down syndrome. If they are, the doctor must review the patient’s medical history to see if they’ve ever had an abortion in the past after becoming aware that the fetus may have had Down syndrome. This requirement also creates a forced waiting period, as physicians are prohibited from performing an abortion until at least two weeks have passed, ostensibly in order to obtain the pregnant person’s medical records.
This type of anti-choice legislation—which targets a pregnant person’s “reason” for an abortion—attempts to pit reproductive rights against the rights of people with disabilities. The courts have blocked similar measures in Indiana, Kentucky, Louisiana, and Ohio. Utah also passed a “reason” ban this year, but that law won’t take effect until a “court of binding authority” upholds a similar law.
With the passage of SB 448, which will also go into effect July 24, any person performing an abortion must now be licensed to practice medicine in the state of Arkansas and be board-certified or board-eligible in obstetrics and gynecology.
Planned Parenthood, the American Civil Liberties Union (ACLU), and the ACLU of Arkansas filed a lawsuit on Wednesday challenging the 18-week ban, the “reason” ban, and SB 448. The lawsuit argues the bans are unconstitutional and that the OB-GYN requirement is “arbitrary” and would “severely limit abortion access in the state.”
A handful of other regulations targeting abortion providers are also set to take effect in July. SB 278 requires abortion facilities be located within 30 miles of a hospital that provides gynecological or surgical services and requires physicians report any abortions that result in a live birth—an extraordinarily rare occurrence. The measure also increases the state’s medically unnecessary waiting period before an abortion from 48 to 72 hours, making Arkansas the sixth state (after Missouri, North Carolina, Oklahoma, South Dakota, and Utah) to require pregnant patients wait three days after their initial consultation to obtain an abortion.
The “Perinatal Palliative Care Information Act” requires doctors to inform patients carrying a fetus with a life-threatening anomaly of the availability of perinatal palliative care services. Physicians must offer the services—which include support for the pregnant person and their family from the time of diagnosis through the postpartum period after the birth and death of the fetus—as an alternative to the abortion. A physician who fails to provide the information before an abortion would have their medical license revoked.
SB 3 requires health-care providers to file a report within three days to the state health department any time they diagnose or treat someone for a complication that may be the result of an abortion. The law imposes fines for each violation and revokes the medical license of any provider who amasses three violations.
SB 341 clarifies what information abortion providers need to give their patients about medication abortion “reversal.” In 2015, Arkansas became one of the first states to require physicians to provide information about so-called reversal—an experimental and unproven treatment that has yet to be supported by major medical organizations. The new measure requires doctors to give a pregnant person a written notice containing “reversal” information after the first dose of abortion-inducing drugs. Seven other states currently require physicians to provide abortion “reversal” information: Idaho, Kentucky, South Dakota, Utah, Nebraska, North Dakota, and Oklahoma (the latter three’s laws are set to take effect later this year). A similar law in Kansas was vetoed earlier this year.
As if all that weren’t enough, Republican Gov. Asa Hutchinson also signed a ban on public funding of certain types of research involving human embryos—set to take effect next year—and a “trigger law” criminalizing abortion, which will take effect if Roe v. Wade is overturned.
Beginning July 1, Idaho will once again enforce a ban on so-called partial-birth abortion—which is not a thing. The political and non-medical term was coined by anti-choice advocates to describe an intact dilation and evacuation abortion, or “D and X” abortion—an uncommon medical procedure that has since been banned by the federal government. The revised state law updates the Idaho Partial-Birth Abortion ban, which has been unenforceable since 1999, so that it is consistent with federal law. The original ban was ruled unconstitutional for being vague and lacking exceptions to protect the life of the pregnant person.
Two anti-choice measures are scheduled to take effect in Indiana on July 1: a ban on the most common method of second-trimester abortion and a religious imposition measure allowing certain health-care providers to refuse to participate in abortion care.
HB 1211 prohibits someone from performing a “dismemberment abortion”—a non-medical term used to describe dilation and evacuation (D and E) procedures—unless it’s necessary to prevent serious health risks to the pregnant person or to save their life. A person who performs such an abortion would be committing a felony punishable with up to six years in prison and a $10,000 fine. D and E abortions are currently prohibited in Mississippi and West Virginia, but courts have blocked or temporarily enjoined similar bans in eight states. A nearly identical ban was enacted in North Dakota this year, but that measure won’t take effect unless the Eighth Circuit Court of Appeals or the U.S. Supreme Court declares such bans constitutional.
The American Civil Liberties Union and the ACLU of Indiana have already filed a legal challenge against HB 1211. A federal judge granted a temporary injunction blocking the law on June 28, after initial publication.
The other anti-abortion measure taking effect in July allows nurses, physician assistants, and pharmacists to refuse to participate in an abortion or to dispense a medication abortion if doing so would be contrary to their religious or moral beliefs. The state’s existing religious exemption law only applied to physicians or employees of hospitals and abortion facilities. Similar religious refusal or “conscience protection” measures—which pose a significant danger to patients—have been considered this year in Arkansas, New Mexico, Oregon, and Texas.
A law banning abortion as early as six weeks into a pregnancy—before many people even realize they’re pregnant—is technically scheduled to take effect in Mississippi on July 1. But thanks to a court order, that won’t be happening. Except in cases of medical emergency, SB 2116 prohibits performing an abortion on a pregnant person once a fetal “heartbeat” has been detected. But here’s the thing: Ultrasounds can detect electrical activity very early into a pregnancy, even before a heart has actually been developed. It isn’t a heartbeat, yet conservative lawmakers have successfully employed that terminology to pass near-total abortion bans in several states this year.
These laws are clearly unconstitutional, as they prohibit abortion prior to viability. The Center for Reproductive Rights filed a legal challenge against SB 2116, and the law has been temporarily blocked as the case proceeds.
Another unconstitutional near-total abortion ban is set to take effect July 10, this time in Ohio. Except in cases of medical emergency, a physician may not perform or induce an abortion when a fetal “heartbeat” has been detected—which again, is just electrical activity depending on the stage of the pregnancy. The law doesn’t contain any exceptions for rape or incest. A person who performs an abortion in violation of this law would face felony charges punishable by six to 12 months in prison and a fine.
The ACLU of Ohio has filed a legal challenge, but no decision has been handed down as of publication.
Republican Gov. Kristi Noem signed a handful of anti-abortion bills scheduled to take effect July 1. One measure—HB 1177—requires doctors to offer pregnant patients an “opportunity” to view a sonogram and hear the heartbeat of the fetus prior to an abortion. (It is not clear whether the definition of “heartbeat” in the law includes fetal electrical activity.) The bill was originally introduced as a forced ultrasound measure, which would have carried felony charges for doctors who failed to perform ultrasounds prior to an abortion. The revised law also requires doctors to document the pregnant person’s response to the ultrasound offer.
A separate measure, HB 1190, requires physicians to include the number of pregnant people who agreed to view a sonogram image and/or hear the fetal heartbeat in each abortion report they submit to the state. Current state law requires the South Dakota health department to issue a public report of all the abortion-related data compiled from physician reporting forms by November of each year. Lawmakers this session passed a measure that revises the deadline from November to July.
And finally, it will now be a crime to cause an abortion against a pregnant person’s will. HB 1193 makes it a felony punishable by life in prison to threaten a pregnant person with homicide, murder, manslaughter, aggravated assault, or kidnapping if they don’t undergo an abortion. There is limited data on how often people are forced to end a pregnancy—and most, if not all, abortion clinics have counseling policies in place to address coercion—but anti-abortion advocates say such laws are necessary to protect pregnant people. Opponents of coercion laws say these policies ignore the broader issue of domestic violence and do nothing to combat abusive partners trying to force their partner to get pregnant or carry an unwanted pregnancy to term.
Beginning July 1, physicians in Tennessee will be required to report any suspected sexual abuse of a minor when asked to perform an abortion on anyone under 18. Under existing state law, a physician has reasonable cause to report the sexual abuse of a minor seeking an abortion if they are under the age of 13. The new law states that if the minor who requests an abortion is between ages 13 and 17, and the physician has reasonable cause to suspect child sexual abuse, then the physician must report that suspected abuse.
Still More to Come
Several more anti-abortion measures are scheduled to take effect before the year is out. Laws requiring doctors to inform patients that they may be able to “reverse” a medication abortion are scheduled to take effect later this year in Nebraska, North Dakota, and Oklahoma. Starting in August, Louisiana’s abortion clinic licensing law will apply to medication abortion in addition to surgical abortion. In September, the state of Texas will punish doctors who fail to provide the appropriate degree of care to a child born alive after an abortion (which isn’t a thing that happens), block local and state funding of abortion providers, and place more requirements on doctors when it comes to informed consent materials. And finally, total and near-total abortion bans in Missouri, Alabama, and Georgia are scheduled to take effect in August, November, and January, respectively—but they’re all facing legal challenges and will likely be blocked.
So, yeah, it’s been a rough six months—and things are only going to get worse.
CORRECTION: The date Ohio’s near-total abortion ban will go into effect has been updated.