SALT LAKE CITY — Ever since President Donald Trump's appointment of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, there's been growing anxiety on the left that federal abortion protections could be rolled back.
Fears among abortion rights advocates that Roe v. Wade could be overturned come at a time when state legislatures across the country have passed laws or considered bills that make it more difficult to get an abortion.
Now state legislatures in New York and Virginia, among other states, are going the other way — considering controversial bills that would not only protect the abortion rights outlined in Roe v. Wade but also significantly expand them.
On Jan. 22, New York Gov. Andrew Cuomo signed the Reproductive Health Care Act (RHA) into law, which expands the circumstances under which a woman can legally obtain an abortion — including up until the moment of birth. On Jan. 28, a similar bill was introduced in the Virginia legislature, although it has been tabled.
The passage of the RHA and the introduction of the Virginia bill represent drastically different milestones for the abortion rights and pro-life movements.
Many abortion rights advocates see the bills as a step towards decriminalizing and potentially deregulating abortion entirely, protecting it unconditionally as a woman's fundamental medical right.
"For people who believe that abortion is a medical procedure that a woman chooses to have, or not to have, in consultation with her doctor, why would we restrict abortion in our legal codes at all? The decision to restrict abortion in the legal code is based on the idea that there are people who want to kill babies, and the law exists to prevent killing," Jia Tolentino wrote in The New Yorker.
The successful passage of the RHA has major implications for the pro-life movement. Kathleen Gallagher, director of pro-life activities and the Catholic Action Network for the New York State Catholic Conference, told Catholic outlet Our Sunday Visitor that because the bill defines abortion as a "fundamental human right," it could be "used to block religious organizations from advocating for life, or prevent doctors from abstaining from performing abortions on religious or moral grounds.
"It foresees a time in New York when it's a crime to be pro-life," Gallagher said.
Here's a breakdown of the RHA, why it's controversial, and other states' positions on abortion rights.
1. What does New York's RHA law allow?
The law would permit abortion without restrictions during the first two trimesters of pregnancy. Abortion would also be legal in the third trimester, up until the moment of birth, in an "absence of fetal vitality" or if the woman's "life or health" is determined to be at risk.
There is no "objective medical standard" a woman has to meet in her third trimester of pregnancy in order to obtain an abortion; the decision would be made at the doctor's discretion.
Licensed nurse practitioners and physician assistants would also be authorized to perform abortions, not just physicians.
It also decriminalizes late-term abortions and physicians who perform them. Abortions are now regulated under the state's public health law, not its criminal code.
The bill proposed in Virginia, called the Repeal Act, would be very similar to the RHA.
2. Why are the RHA and similar bills controversial?
A primary reason why the RHA is controversial is that it does more than just codify Roe v. Wade, as WGN9 reported.
For example, Roe v. Wade requires that abortions be performed by a physician, while the RHA removes that provision.
In addition, Roe v. Wade "held that states could restrict or ban abortions after fetal viability in some circumstances," according to the Guttmacher Institute, a research organization that focuses on reproductive health rights. However, pro-life advocates argue that the expanded provisions of the RHA would allow women to obtain an abortion in virtually any situation, because the limitations can be interpreted so broadly.
Because the RHA decriminalizes late-term abortion, domestic violence offenders who cause their partners to lose the child can no longer be prosecuted as severely, BBC News reported.
3. Which other state legislatures are considering bills similar to the RHA?
Virginia, New Mexico, Massachussetts, Rhode Island and Vermont's state legislatures have introduced bills that would eliminate old laws limiting abortion access, LifeSiteNews reported. Many of these bills are still under consideration.
However, the Virginia bill has been deemed unlikely to pass, as the Republicans hold a majority in both chambers of the state legislature, the Federalist reported.
Other states, such as Oregon, have already codified extremely expansive abortion rights. The New Yorker reported that Oregon “affirms abortion as a constitutional right and has no legislative restrictions on the procedure whatsoever.”
4. Which states have recently proposed laws that restrict abortion?
According to the Guttmacher Institute, 17 states currently ban abortions at "fetal viability," two ban abortions in the third trimester, and 24 ban abortions after a predetermined number of weeks has passed.
In addition, nine states that had anti-abortion laws in place before Roe v. Wade was passed never repealed those laws, even though they are unconstitutional, and another four have placed anti-abortion bans in place that would immediately go into effect if Roe v. Wade were overturned, according to LifeSiteNews.
Anti-abortion legislation has recently been proposed in a number of states, including:40 comments on this story
- Utah. In January, Rep. Cheryl Acton, R-West Jordan, introduced one of the nation’s most restrictive abortion laws, the Deseret News previously reported. The law would prohibit abortions later than 15 weeks into a pregnancy, with some exceptions. If the law is passed by the state legislature, it is expected to be challenged in federal court.
- Louisiana, Texas, Mississippi, North Dakota and Arkansas. These states proposed and in some cases passed legislation that would have prohibited abortions after a certain point in the pregnancy, such as six or 12 weeks. However, many of these restrictions were struck down by federal courts because they do not comply with Roe v. Wade, according to the Guttmacher Institute. Nevertheless, "statutes conflicting with the Supreme Court's requirements remain on the books in some states."
5. Could Roe v. Wade really be overturned?
It's unclear. As LifeSiteNews reported, both Kavanaugh and Gorusch have been cagey on the topic of Roe v. Wade, declining to comment on whether they agree with the 1973 decision or think it should be overturned.
Trump, however, made his stance on the issue clear during a 2016 interview on "60 Minutes," in which he declared his intention to appoint pro-life justices to the Supreme Court.