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Louisiana's new second-trimester abortion ban is part of a trend

Photo by Olivier Douliery/Getty Images

Louisiana Gov. John Bel Edwards (D) signed a bill Tuesday that effectively bans most second-trimester abortions in the state.

The new law does this by banning the dilation and evacuation (D&E) procedure, which is the safest and most common method of performing an abortion after 14 weeks of pregnancy. The only exception to the ban is if the procedure is necessary to prevent a serious risk to the woman's health.

To comply with the ban, Louisiana doctors will basically have two choices. They can put a woman at greater risk by taking medically unnecessary extra steps in order to perform a second-trimester abortion. Or they can stop offering women abortions after 14 weeks of pregnancy entirely.

D&E bans are quickly becoming the latest trend in anti-abortion lawmaking at the state level. They have colorful names like the "Unborn Child Protection from Dismemberment Abortion Act." And some advocates and lawmakers are using them to focus on the lurid details of later abortion procedures, in hopes of turning more Americans against abortion and making the procedure easier to outlaw or restrict.

"This legislation is a statement about who we are as a people," said state Rep. Mike Johnson (R), the bill's sponsor, in a statement after Edwards signed the bill. "In Louisiana, we believe every human life is valuable and worthy of protection, and no civil society should allow its unborn children to be ripped apart. Incredible as it seems, we needed a law to say that. We have it now."

The American Congress of Obstetricians and Gynecologists (ACOG), the country's leading professional organization of OB-GYNs, is adamantly opposed to D&E bans. ACOG submitted an amicus brief last year outlining its objections to a similar law in Kansas, which said the law "unduly interferes with the patient-physician relationship by seeking to criminally sanction physicians for exercising their best medical judgment in treating their patients."

"Louisiana women already face countless obstacles when they have made the decision to end a pregnancy, and these measures will only drive safe, legal, high-quality care out of reach for many women," said Nancy Northup, president of the Center for Reproductive Rights, in a statement.

Anti-abortion advocates are trying to make D&E the new "partial-birth abortion"

During the Bush administration, there was a huge fight over so-called "partial-birth abortions." That's not a medical term for intact dilation and extraction (intact D&E) — a rare procedure that is now banned, but that was once used in later abortions and miscarriage removals. Doctors said that intact D&E was sometimes the best option to preserve a pregnant woman's health, and so they opposed efforts to ban it.

But the catchy "partial-birth" rebranding by anti-abortion advocates, and the focus on the unpleasant details of the procedure, helped to sway the public against it — and even to sway more people against abortion in general for a time.

"Everything changed when our side started talking about partial-birth abortion," Charmaine Yoest, president of Americans United for Life, told Emily Bazelon of the New York Times in 2012.

Bazelon noted that this strategy took off in the mid-1990s, shortly thereafter leading to a rise in the percentage of Americans who identified as "pro-life" and said they were morally opposed to abortion. "Anti-abortion advocates had apparently succeeded by conflating one kind of late-term abortion with all abortion," Bazelon wrote. (The vast majority of abortions take place in the first trimester.)

It would be no surprise, then, if abortion opponents wanted to build on that success and use it to try to ban abortion much more broadly. And so it comes as no surprise that anti-abortion advocates have rebranded the regular D&E procedure as a "dismemberment abortion," which is also not a medical term.

In 2007, the Supreme Court upheld a national ban on the intact D&E procedure in Gonzales v. Carhart. Crucially, however, the ban was upheld because it targeted a rare procedure — and the Court specifically said that women seeking intact D&Es wouldn't have their abortion rights violated because they could still seek out regular D&Es.

That presents yet another constitutional problem for D&E bans, along with the fact that they violate the Supreme Court's 1973 decision in Roe v. Wade.

These bans are catching on, even though they are probably unconstitutional

One-quarter of all restrictions passed in last five years Guttmacher Institute

Several other states have passed D&E bans — which, again, reproductive rights advocates say are blatantly unconstitutional. These laws effectively ban most second-trimester abortions, which means they ban abortion before a fetus would be viable. And that's a no-no under Roe v. Wade.

This is why courts in Kansas and Oklahoma have already blocked similar laws from going into effect.

But the likelihood of court challenges to D&E bans didn't stop Mississippi Gov. Phil Bryant (R), who just last month signed a D&E ban into law. It also didn't stop West Virginia's state legislature from overriding Gov. Earl Ray Tomblin's (D) veto of a D&E ban.

Why are these bans getting so popular, even in the face of expensive legal challenges? Part of it is to appeal to pro-life moral values, and moral revulsion. But there's more to it than that.

Anti-abortion laws tend to come in waves. One state passes a 20-week ban, say, and in a few years you've got a dozen or more similar laws on the books. Some laws — like parental notification requirements, waiting periods, or restrictions on insurance coverage — are already pretty widespread, and most of the states that are likely to pass them have already done so.

But lawmakers in heavily anti-abortion states rarely stop at these now-common restrictions. Anti-abortion lobbyists keep helping them come up with new ways to restrict abortion, or to expand existing restrictions. (Case in point on expanding restrictions: Just two weeks ago in Louisiana, Edwards signed another anti-abortion bill that triples the state's waiting period for an abortion from 24 to 72 hours.)

This steady lobbying and legislating effort has led to an explosion in anti-abortion lawmaking in just the last five years.

It's also led to a proliferation of some truly bizarre ideas — like Indiana's new "bury your miscarriage" law, or Utah's new "fetal anesthesia" law that doctors say is pure medical gibberish that they can't possibly implement in practice.

Really, though, a lot of anti-abortion laws (and I've read a lot of them) include some pure medical gibberish of one kind or another — whether they're fudging the numbers on how to measure the gestation of a pregnancy, or using medically inaccurate terms for medical procedures, or even inventing brand-new medical procedures out of whole cloth. That's probably because most of these bills are written by people who aren't doctors, and who seem to have no clue how pregnancy or abortion actually work.


Americans don't know much about abortion

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