Roe Under Fire
From 20 Weeks to Heartbeat: Red States Are Moving Up Abortion Bans to Undercut Roe
‘We’ll just go lower and lower and lower until the point where there aren’t abortions being done.’
For years, Jackson Women’s Health Organization owner Diane Derzis has fought back as lawmakers passed bill after bill designed to make her home state of Mississippi one of the most difficult places to get an abortion—and put her clinic out of business in the process. In March, yet another blow arrived, as Republican Gov. Phil Bryant signed what was at the time seen as the toughest anti-abortion measures in the nation: a law banning the procedure after 15 weeks’ gestation.
Unlike some of the state’s other restrictions, such as mandated ultrasounds and a 24-hour waiting period, the “Gestational Age Act” would affect just a fraction of the women who seek care at Jackson Women’s Health, which offers reproductive health services like pregnancy testing and contraceptive counseling in addition to abortion. Mississippi already bans abortion at 20 weeks and the clinic, the state’s sole remaining abortion provider, only performs the procedure through 16 weeks of pregnancy. An overwhelming majority of her patients chose to terminate during the first trimester. But the law stripped those who did seek abortion during that window—including one woman scheduled for the day after the bill was signed—of their right to do so. Derzis and the Center for Reproductive Rights swiftly filed a lawsuit challenging the ban as unconstitutional in federal court.
The outcome of that case could reverberate far beyond the relatively small number of women who visit Derzis’ clinic that late in their second trimester. It’s seen as a trial balloon for dismantling Roe v.Wade, the 1973 ruling protecting a right to abortion. Now, the upcoming confirmation fight over President Trump’s Supreme Court nominee Brett Kavanaugh, who could shift the court’s balance in the favor of abortion foes, is raising those stakes even higher.
“The legislators in Mississippi have never seen an abortion bill they didn’t love,” Derzis said. “They’ve been waiting all along for the situation we have now to occur, where it will be in front of a Supreme Court that they hope will overturn Roe.”
It’s not just Mississippi moving to ban abortion earlier in a pregnancy. The state’s law is part of an onslaught of new anti-abortion laws aiming to restrict access—and chip away at a legal right to abortion—through gestational limit laws. Laws banning abortion after 20 weeks, up to a full month prior to the roughly 24-week viability point generally recognized since the 1992 case Planned Parenthood v. Casey, are in effect in 18 states. Lawmakers in a number of other states, including Kentucky, Oklahoma and Texas, have sought to pass method-based bans that effectively outlaw most abortions after the first trimester. And in May, Iowa adopted the nation’s most stringent limit, with the signing of a so-called “heartbeat bill” that could prohibit termination as early as six weeks, before many women even know they are pregnant.
Activists on both sides of the fight say expect more of these bans to be introduced and challenged, especially in light of Kavanaugh’s nomination.
“We have been very clear we want Roe v. Wade to go and we want to restrict as many [abortions] as possible,” Kristan Hawkins, president of Students for Life, a coalition of anti-abortion college campus groups, told The Daily Beast. “We’ll just go lower and lower and lower until the point where there aren’t abortions being done.”
Supporters of abortion rights argue that 20-week bans are blatantly unconstitutional. Two of those bans—in Arizona and Idaho—have been struck down by the courts, though the Supreme Court declined to take up the Arizona law in 2014. Now, many of the earlier limits are being challenged—and blocked for now—in lower courts. While it’s unclear whether the Supreme Court would be inclined to take up an earlier ban, the outcome of such a case could have broad implications for abortion rights. Elizabeth Nash, senior states issues manager at the Guttmacher Institute, a research and policy institute, called Mississippi’s law a “trial balloon for the next generation of the gestational age ban, moving from 20 weeks to 15 weeks.”
“The court could use it not only to uphold abortion restrictions but to reshape the contours of legal abortion in the U.S.,” Nash said. “This would give them an opportunity to undercut or overturn Roe.”
Beyond the legal strategy, Nash says the bans are meant to mobilize the anti-abortion base and pave the way for other restrictions to pass. “It makes all other abortion restrictions pale in comparison,” she said. “When you have such an extreme ban, anything else seems moderate.”
Indeed, anti-abortion activists see gestational bans as a winning issue. While a majority of voters oppose overturning Roe v. Wade, some polling shows support dropping for legal abortion in the second and third trimester. Hawkins, who sees late-term abortion as a “bridge issue” for engaging young voters, says Students for Life is planning to make 20-week bans a focal point of a nationwide campus tour.
“This is a common sense issue and something we are going to be using on college campuses this fall, especially to gain common ground with people who may not consider themselves pro-life or in our camp,” Hawkins said. “We can actually get folks to agree with us, they’ll say, ‘Yeah I may not agree with you on first trimester abortion but I can definitely agree on late-term.’”
Supporters of abortion access say those views highlight common misconceptions about the reasons women seek abortion later—and the impact the bans can have on their lives. One major five-year study tracking outcomes of 1,000 women who tried to have an abortion found that those who were turned away due to gestational limits experienced higher rates of poverty and were more likely to stay with an abusive partner than those who were able to access the procedure. Dr. Ushma Upadhyay, associate professor at University of California, San Francisco and co-investigator of the Advancing in New Standards in Reproductive Health study, said women who run up against such limits are “oftentimes the most marginalized in society, under-served.” In some cases, they didn’t find out they were pregnant until later in the pregnancy. Even when they do decide to have an abortion earlier on, logistical challenges can push the abortion date father into the term.
“If they’re already later in pregnancy, gathering the money, learning about where they can get a later abortion, it creates a cycle of logistical problems,” Upadhyay said. “The later the abortion is, the harder it is to manage the challenge and the barriers to getting an abortion.”
Complications with a pregnancy—many of which are undetectable until the second trimester—can also be a factor. Rachel Goldberg and her husband were thrilled to learn they were pregnant with their first child in 2015. But during a 20-week scan, they learned their unborn child had developed a severe—and lethal—form of dwarfism. Doctors couldn’t guarantee that the baby would survive to full term. And if he did, the Goldbergs were told, “he’ll basically need surgeries until complications from one of those surgeries kill him.” The couple decided to have an abortion. “It didn’t seem right just because I wanted a baby to ask my baby to suffer for me for that and to possibly put my husband in the position of losing his wife and his baby,” she said. But by the time all the testing was complete, Goldberg was at 26 weeks, and unable to get an abortion in her home state of Missouri. They traveled to Colorado, to see one of just a handful of doctors in the country who perform abortions at that point. Her insurance wouldn’t cover the procedure, so they took out a loan to cover the costs.
After the procedure was done, she felt a “huge sigh of relief.” “I was just really nervous that someone was going to force this baby to suffer because of this misguided belief that this is what the universe or their god wanted to happen,” she said.
In the years since her abortion, Missouri lawmakers have tried to restrict late-term abortion even more. To Goldberg, now 34 and raising a healthy 1-year-old son, the arguments for such bans are disheartening and disingenuous.
“They don’t understand that these are medical choices. They present this argument that they’re trying to save babies or help women, but really the goal is to make it so hard that you’re pushing it farther and farther back until women are unable to get an abortion,” she said. “The women who are going to suffer are the women who aren’t going to have access.”