The Abortion Bans Aren’t Just About Repealing Roe v Wade

It is 2019 and abortion is still legal. Yes, in each and every state in America.

This seems like something that shouldn’t need to be announced, yet here we are. Over the past few weeks we’ve seen abortion restrictions hit a fever pitch, with Georgia and Ohio signing so-called “heartbeat” bans, which would make abortion illegal within about two weeks after a missed period), and a ban that criminalizes abortion at conception passing in both chambers of the Alabama legislature, which is expected to be signed by the governor.

Over just the last six months, the Right stopped being shy about their intention to provoke a challenge to overturn Roe v. Wade. In fact, now they are about as subtle as a sledgehammer when it comes to pushing for that scenario. Groups like Ohio Right to Life have moved from pragmatic incrementalists to no-exceptions extremists in an alarmingly quick fashion all because of the brand-new, far-right make-up of Chief Justice Roberts’s Supreme Court.

And they have no reason to be careful about this endeavor anymore, either. On Monday in a 5-4 decision, the Supreme Court overruled a different 40-year long-standing precedent, setting an uncomfortable pattern for those who held onto any hope that the newest justices would consider Roe, or any other abortion cases such as Planned Parenthood v. Casey or Whole Woman’s Health v. Hellersedt, settled law.

Justice Stephen Breyer said as much in his dissent. “To overrule a sound decision like [Nevada v.] Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay,” he wrote.

Precedent is being thrown out the window and abortion bans are flooding the states and that’s bad—really bad. But what is even worse is the fact that while we are being distracted by these extreme and headline-grabbing bans—none of which will go into effect at any point prior to the actual overturn of Roe itself—we are missing the myriad ways abortion opponents are also closing loopholes on what access will remain post-Roe, and how that’s preparing the country for potential federal restrictions down the road.

Alabama has perhaps gone the furthest when it comes to granting legal rights to embryos and fetuses. First, they offered embryos and fetuses their own lawyers to represent them in court when pregnant teens seek judicial bypass for abortions. Now they’ve allowed a man who impregnated a teen girl to represent the aborted embryo in a lawsuit against the abortion clinic where the procedure was done.

Considering that history, there’s little doubt that one of the motivations behind a new bill that would add additional punishments to falsely accusing someone of sexual assault was about making it more difficult to access abortion. Alabama state Rep. Dickie Drake wants “false accusations” to be a class C felony with up to ten years in jail, a move he deems necessary despite the fact that roughly 60 to 75 percent of all sexual assaults go unreported, and filing a false report is already considered a crime. Dickie Drake says he’s motivated by an incident involving a friend who was allegedly falsely accused, and while that may be true, it seems like a remarkable coincidence that this bill came up at the same time as the state legislature put the vote over a total abortion ban on hold during a dispute over whether or not an exception for rape should be allowed in it (spoiler: They finally agreed in the end that, yes, all sexual-assault survivors should be forced to give birth).

The idea that pregnant people lie about being raped is at the center of the abortion battle. It’s a myth abortion opponents promote through the story of Norma “Jane Roe” McCorvey, about trying to obtain a termination in Texas before abortion was made legal. But the general public still believes that a person who was impregnated due to sexual assault should be able to access a termination, with 77 percent supporting legal abortion in that case. Anti-abortion politicians know that to have long-term success in making abortion illegal in the U.S., it will be essentially unavoidable to not allow an exception for survivors of sexual assault, and they are specifically focusing on ways to make that loophole as small as possible. Requiring mandatory reporting within a minuscule timeframe, creating more punishment for those who are accused of filing false reports (how that would be determined exactly remains unclear)—these are all means through which the Right hopes to intimidate pregnant people from using these minimal exceptions at all.

Closing off rape exceptions—either explicitly or through bureaucracy and intimidation—is just one way they are coming at the remaining loose threads of abortion access. Ending exceptions for fetal anomaly is another. In Texas, that is being done directly with a new piece of legislation removing anomalies and non-viable pregnancies from a current 20-week post-conception abortion ban, despite the fact that the exception already only applied to cases of “severe fetal disease or disability.” Instead, the proposed bill would require doctors to counsel their patients seeking abortions for anomalies to learn about “perinatal hospice,” encouraging them to continue the pregnancy and accept palliative care for the fetus’s then short and potentially painful time outside the womb.

The bill would also ban abortion in the case of disability, as well as gender and race, bringing Texas in line with states like North Dakota and Indiana which also ban abortions because of alleged “disability.” Indiana’s case is currently up at the Supreme Court, where the bench has conferenced on it multiple times but has yet to agree to take up the case.

Even if an abortion would be allowed in these rare exceptions loopholes, states are working diligently to modify how procedures are done to yet again appease their personal vendetta to ensure an abortion never technically occurs. Many of the bills that do allow abortions under extremely limited conditions then require that “the method of abortion used [be] one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive” and that “if the child is capable of sustained life, medical aid then available shall be rendered.” Together, these mandates mean a live birth rather than any sort of abortion procedure—likely by labor induction or c-section—and perinatal care even in cases where such care is futile.

But what they won’t be allowing, in any form, however,  is what most people usually consider an abortion. Instead, as long as the intention was to keep the fetus alive for as long as possible, anti-abortion activists can walk away claiming no termination or ending of a life ever occurred.

It’s this idea of direct (where the ending of the embryo or fetus is the primary goal) versus indirect (where medical procedures are done and every effort is made to continue to keep the embryo or fetus intact and alive) abortion that is so very important to the anti-abortion movement, and will be taken to the most medically impractical and ludicrous degrees as the battle over legal abortion continues.  We saw this reach its peak in Ohio just in the last two weeks when a Republican legislature introduced a bill to ban all abortion coverage in insurance plans, regardless of the reason behind the procedure (and block coverage for most hormonal and non-barrier method birth-control devices, too). But while carving out the most limited exception for an abortion needed to save a pregnant person’s immediate physical health, the bill sponsor also insisted on a bizarre requirement that insurers allow “a procedure for an ectopic pregnancy, that is intended to reimplant the fertilized ovum into the pregnant woman’s uterus.”

Of course there is no such medical procedure, but the idea behind it is the logical extension of the anti-abortion movement’s lack of regard for a pregnant person’s long-term health when an embryo is on the line. The vast majority of ectopic pregnancies involve an embryo that fails to make it to the uterus, where it would then implant in the uterine lining,  and instead implants in the very narrow passage of the fallopian tube. These pregnancies are never viable—as the embryo grows, the tube will rupture, putting the pregnant person’s life at risk. Most doctors will advise a patient with an ectopic to abort the pregnancy, usually with an injection that will allow it to terminate without surgical intervention, minimizing the physical risks and preserving future fertility.

But abortion opponents advocate removing the tube itself to end the pregnancy, calling that an indirect process and not an actual abortion as the embryo hasn’t been directly harmed. “If the Hcg levels [the pregnancy hormone] are increasing and the baby is still growing, then the ethical and moral way to treat the ectopic pregnancy is to remove that section of the tube where the baby is implanted,” anti-abortion activist Abby Johnson, a former Planned Parenthood clinic director, explained on her Facebook page in 2014. She concludes, “So basically, it is all about intent in these circumstances. Any direct attack on the unborn baby is unacceptable and unethical. While yes, the baby will die if you remove the tube, it is an indirect result of removing part of the fallopian tube.”

Methodextrate is an abortion, and would be a physically easier process; removing the tube would be far more invasive,  but allegedly not an abortion. And that’s really all the Right wants in the end. Any moral victory is worth the cost, no matter how dangerous it is for the pregnant person—even if no “life” is being saved at all.

As these bans continue to make headlines across the country, we are constantly getting swept up in the media blitz of sex strikes and Hollywood boycotts, or potential arrests for helping pregnant people leave states to access legal abortions in the one next door—or even the mistaken idea that abortion may have already been banned in some of these states already. But while we are busy being distracted by the latest shiny object that is the “most restrictive ban ever [for this week],” abortion opponents are using our lost focus to fine tune amendments that are closing all of the remaining abortion exception loopholes, one by one.

Right now, those loopholes are only closing for those states that were about to lose abortion access for good once Roe is overturned. But remember, that all is just practice. Their end goal is to repeat this same process federally—and if they manage to take back the House and get full control over all three branches of government again, there may be no way to stop them.