Why Have So Many States Banned Abortions?

A wave of new laws has swept through states since 2010

March 11, 2013, 2:50 PM

March 12, 2013 -- Abortions are becoming illegal in America at a rapid clip.

Last week, Arkansas passed the nation's most restrictive abortion law, enraging abortion-rights supporters and sparking plans for a court challenge. But that law followed a wave of legislation in the last three years: Since 2010, 10 states have passed outright bans on abortions for women who have been pregnant for more than 20 weeks, and in some cases earlier.

Read more: Activists Will Challenge Arkansas's New Abortion Limit

Before 2010, no states banned abortions outright at any stage of pregnancy. Nebraska started the trend with a 20-week abortion ban in April 2010. In 2011, Alabama, Idaho, Indiana, Kansas, and Oklahoma followed suit, and in 2012, Arizona, Georgia, and Louisiana passed curbs of their own. Last week, Arkansas became the first state to approve an abortion ban this year.

Abortion-rights activists are worried about a ban under consideration in North Dakota, plus a continuing wave of regulations on abortion clinics that, activists say, have forced clinics to close by making it impossible for them to operate. More of those regulations have advanced in recent years, too, opponents warn.

This new curbs come four decades after the nation's landmark Supreme Court case legalizing abortion was decided.

"This January marked the 40th anniversary of Roe v. Wade. Our movement should be dead," said Mallory Quigley, spokeswoman for the national anti-abortion-rights group Susan B. Anthony List. "You would think after 40 years, we would just sit back, but I think what we're seeing is this passion at the state level."

So, why is that?

The short answer is that during the last two elections—big years in national politics, marked by a wave of Tea-Party House and Senate gains in 2010, and by President Obama's reelection over Mitt Romney in 2012—Republicans have taken over more state legislatures and governors' mansions across the country, turning some red states redder and flipping some purple states into their column.

It's not that abortion bills are new, according to activists on both sides of the issue: It's that GOP gains in state politics have cleared the way for pro-lifers to advance their agenda.

"This latest wave of legislative attacks on a woman's right to choose came about because anti-choice politicians won elective office in 2010 and 2012," said Donna Crane, policy director for NARAL Pro-Choice America. Anti-abortion legislators have been pushing bills to limit abortion rights for 20 years, Crane said, but GOP gains in the last two elections have "pulled the goalie," in Crane's words, removing Democratic governors and legislative majorities and allowing socially conservative lawmakers to enact new laws.

Combined with two major court cases that shifted the legal standards for limiting abortions, GOP gains at the state level have made it easier for groups like Americans United for Life (AUL), a national anti-abortion group that drafts model legislation in Washington, D.C., and works to pass it through state legislatures.

"It grew exponentially after the shifts in the legislatures after 2010," said Kristi Hamrick, spokeswoman for AUL. "But it did not begin there--it's been going on since Casey," a 1992 Supreme Court case involving Planned Parenthood.

Of the nine states that passed abortion bans since the 2010 elections (Nebraska's law came before), five saw Republicans gain full control of the governor's mansion, the state House and the state Senate in 2010. In Arkansas, Republicans took over both houses of the state legislature, while Democrat Mike Beebe retained the governorship. He vetoed the state's recent 12-week abortion ban, but the GOP-controlled legislature overrode his veto to enact it. And after the 2012 elections, pro-choice activists worry about more bans to come.

Some of the gains have been stunning. In 2010, Alabama Republicans flipped both houses of the state legislature, gaining 21 House seats out of 105 total representatives in the state. In Kansas, Republicans held control of the state House, while adding 15 seats. In North Dakota, where a new abortion ban is under consideration, Republicans already controlled the legislature before 2010, but they've added 13 House seats and seven Senate seats in the last two elections.

New bans and regulations are forcing a legal issue over when abortion can be banned, as 20-week limits seem to violate Roe v. Wade. In that case, the Supreme Court decided states could only ban abortions after "viability"—the point at which a fetus can survive outside its mother's womb—and that typically occurs at 28 weeks, well after the mark laid out in the recent wave of 20-week (and now 12-week) bans.

Last week, as Arkansas banned abortions in landmark fashion, a federal district judge overturned Idaho's ban as unconstitutional, citing the "viability" mark laid out in Roe. Abortion-rights advocates have challenged laws in Arizona and Georgia, and they plan to challenge Arkansas's.

"It really is sort of a poke of a stick in the eye of the Supreme Court, to dare them to take the case," said Widener University law professor John Culhane. "It's pretty clear from the most recent of the big Supreme Court cases ... that no outright ban can be placed before viability."

And that's part of the pro-life movement's goal: To put abortion back in front of the Supreme Court, get Roe v. Wade overturned, and return abortion policymaking power to the states.

"We believe it can and will be overturned," AUL's Hamrick said. "It should be returned to the states. The Supreme Court set itself up as the abortion control board of the United States."

If states keep passing laws, and anti-abortion activists get their way, the Supreme Court may have to decide whether it will take up the issue once again.