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'Just the beginning': After Texas victory, anti-abortion rights activists could extend gains

Fresh off the Senate Bill 8 win, the movement could eye contraceptive access or in-vitro fertilization choices next, experts say.
Image: In Vitro Fertilization
An embryologist is seen at work at the Virginia Center for Reproductive Medicine, in Reston, Va on June 12, 2019.Ivan Couronne / AFP via Getty Images file

The ripple effect after Texas’ highly restrictive anti-abortion law went into effect was immediate. Within 24 hours, legislators in at least six states — Florida, Arkansas, Indiana, Mississippi, North Dakota and South Dakota — expressed interest in introducing similar legislation.

With state legislatures out of session, most of the bills won’t be introduced right away. But abortion rights advocates say the threat to women’s reproductive freedom across the United States has already begun — and extends far beyond abortion.

“It’s important to realize that the attacks on abortion are not the endgame for the anti-choice movement,” said Kristin Ford, the acting vice president of communications and research for NARAL Pro-Choice America. “It is not the sole focus for their efforts or their vision for what the future of this country looks like.”

Much of the movement’s efforts center on when a fetus or an embryo is entitled to rights, she said, which has led a number of states to propose “personhood” legislation over the years. The bills typically define human life as beginning at the moment of fertilization and propose legal protection from that moment.

Such bills could gain momentum and affect access to contraceptives or what happens to unused embryos in in-vitro fertilization procedures, said Jessica Arons, senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union.

She and other reproductive rights experts foresee two consequences of Texas’ law. In the near term, they said, they expect more copycat anti-abortion legislation to be proposed, with other states emulating Senate Bill 8’s first-of-its-kind language.

Then, they anticipate that the momentum from S.B. 8 could help the anti-abortion movement achieve its broader ambitions.

“Certainly, their long-term goal is not just to eliminate legal abortion in this country. It is to enshrine personhood in our laws,” Arons said.

S.B. 8 went into effect after a divided Supreme Court declined to block it. It bans abortions once fetal cardiac activity can be detected, which is as early as six weeks into a pregnancy, before many women are even aware that they are pregnant.

A unique enforcement mechanism

What makes the law unique is how it is enforced. The state government doesn’t ensure it is followed; rather, private citizens, including those outside Texas, can sue abortion providers or people who help women get abortions after the six-week mark, and they can receive $10,000 plus the cost of their legal fees if they win their lawsuits.

Having citizens rather than the government enforce the rule “was the linchpin for the Supreme Court allowing the law to go into effect,” said Elizabeth Nash, a state policy analyst with the Guttmacher Institute, a nonprofit organization that researches reproductive rights.

“They’re outsourcing enforcement. That’s key,” she said.

Arons said the enforcement mechanism is concerning, and not just for reproductive freedoms.

“The fact that Texas has discovered this end run around the Constitution by going this route of private enforcement rather than government enforcement is something that really puts every fundamental right at risk,” she said. “I think this is just the beginning, especially if the Supreme Court continues to choose inaction in the face of threats to fundamental rights.”

S.B. 8 has made abortions nearly impossible to obtain in Texas. The average one-way driving distance for pregnant women went from 12 miles to 248 miles, according to the Guttmacher Institute.

Less than a week after the near-total abortion ban was implemented, other states were already fielding calls from women in Texas in need of services. Last Friday, Dr. Colleen McNicholas, the chief medical officer at Planned Parenthood of the St. Louis Region and Southwest Missouri, said her health centers were hearing from women in Texas.

“It is a shame that in the most resourced country in the world that people are having to travel hundreds of miles for basic reproductive health care,” she said. Many of the patients are coming simply to get medication, not for a procedure, she added.

Missouri, where McNicholas is, could be the next state to ban most abortions: A federal hearing is scheduled this month to review its ban on abortions at eight weeks’ gestation with no exceptions for rape or incest.

“I can’t tell you the number of people I’ve heard say things like ‘Roe will never be overturned.’ The reality is it doesn’t have to be overturned for the effects to be completely devastating on a community.”

Although Roe v. Wade, the landmark Supreme Court decision that deemed a woman’s right to an abortion to be constitutionally protected, still legalizes abortions on the federal level, “many of us have already been operating in a post-Roe world,” McNicholas said.

“Many of those we serve already have such limited access that the value of Roe has already been decimated,” she said.

“I can’t tell you the number of people I’ve heard say things like ‘Roe will never be overturned.’ The reality is it doesn’t have to be overturned for the effects to be completely devastating on a community.”