Arkansas Gov. Asa Hutchinson signed a new bill into law last week that effectively bans abortions after 14 weeks of pregnancy — or forces doctors to use riskier methods to perform them.
The new law does this by banning the safest and most common method of performing an abortion in the second trimester, dilation and evacuation (D&E), which is used in about 95 percent of second-trimester abortions in the US. Doctors who violate the ban face felony charges.
The law does have an exception for risks to the woman’s health. But, like most “exceptions” in abortion bans like these, it’s much too narrow to cover all possible medical complications for either the woman or the fetus.
The law will almost certainly be challenged in court. Holly Dickson, legal director of the American Civil Liberties Union of Arkansas, told the Daily Beast that the group plans to make a case that the law is unconstitutional.
Courts have found that D&E bans are indeed unconstitutional in four of the six other states that have passed them. In the other two states, Mississippi and West Virginia, court challenges simply haven’t been brought yet. Abortion providers in those states only offer earlier abortions anyway, so the law doesn’t actually affect their practice.
Courts have struck down D&E bans in every legal challenge so far because judges find that they violate Roe v. Wade, the 1973 Supreme Court case that legalized abortion. It’s not permissible under Roe to ban abortion before a fetus is viable, and most second-trimester abortions don’t involve a viable fetus.
But even though they end up costing states time and money in legal challenges, D&E bans are quickly becoming the latest trend in anti-abortion lawmaking at the state level.
A D&E ban makes abortion less safe for women, with no clear medical benefit to either the woman or the fetus
To comply with the ban, Arkansas 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.
Proponents of D&E bans have given D&E a colorful new name: “dismemberment abortion.” They say banning the procedure is necessary because it’s inhumane to remove a living fetus from the uterus in “pieces.”
But there is no good medical evidence that fetuses can experience pain before well into the third trimester of pregnancy — and no evidence at all that this could happen early in the second trimester, when most D&Es are performed.
“I think we should focus more on the suffering of women,” Kristyn Brandi, an obstetrician-gynecologist at Boston Medical Center who specializes in contraception and abortion care, told Vox. “My job is to take care of the patient in front of me, in the way that is safest for her and causes the least pain for her.”
Some proponents of the D&E ban suggest that it’s easy to comply with the ban; all the doctor has to do is make sure that the fetus is dead before the abortion starts. (The D&E procedure is also used to clear out the uterus and prevent infection after a miscarriage. Doctors are still allowed to use it for this purpose, and the law only applies to living fetuses.)
But it’s not that simple. Some argue that doctors could simply puncture the amniotic sac to ensure fetal demise — but that’s “an ancient way to do abortion care that no one does anymore” because it’s dangerous for women, Brandi said.
D&E is by far the safest method for performing a second-trimester abortion, Brandi explained. Without the option of D&E, providers only have a few options for performing second-trimester abortion — all of which add unnecessary risk to the patient.
Doctors could give a woman medicine to ensure the fetus is no longer living before the abortion starts — but that medicine carries extra risks for the woman. “If I can not give medication to my patient that causes risk to her, I would prefer to do that,” Brandi said.
The other option is to induce labor, which is much more risky and expensive for the woman.
“Inducing labor involves a hospital stay, and possibly multiple days of medication, to induce labor that early in a pregnancy, without any added benefit,” Brandi said. “I would argue that actually causes more suffering for women, and for a fetus that wouldn't survive [labor and delivery].”
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 (known as D&X, or “intact D&E”) — a rare procedure that Congress banned in 2003, but that was once used in miscarriage removals and later abortions. Doctors said that D&X was sometimes the best option to preserve a pregnant woman's health, and so they opposed efforts to ban it.
But anti-abortion advocates rebranded the procedure as "partial-birth" abortion and focused on the unpleasant details of the procedure. This helped sway the public against it — and even 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 D&E procedure as a "dismemberment abortion," which is also not a medical term.
In 2007, the Supreme Court upheld a challenge to the ban, ruling in a 5-4 opinion that women seeking abortion through a D&X would still have the ability to instead obtain an abortion through a D&E.
That presents yet another constitutional problem for D&E bans, in addition to the fact that they are at odds with Roe v. Wade.
These bans are catching on, even though they keep getting struck down in court
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.
This steady lobbying and legislating effort has led to an explosion in anti-abortion lawmaking in just the past five years.
It's also led to a proliferation of some truly bizarre ideas — like Indiana's "bury your miscarriage" law that was later overturned, 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.