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States Are Going After Abortion As Never Before, Constitution Be Damned

Anti-abortion lawmakers are no longer worried about reaffirming Roe—they have their sights set on something even more terrifying. And if they win, you could end up in jail.
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When it comes to full bans on all legal abortion, fighting the battle in individual states in the U.S. has become an annual affair. Ballot initiatives banning abortion under absolutely all circumstances, or redefining life as beginning at the moment sperm fertilizes egg (“Personhood” amendments), have been an Election Day staple for the last decade, with South Dakota, Colorado, North Dakota, and Mississippi, all vying to be the first to win a majority of voters in their favor.

So far, every one of them has failed in a statewide vote, a trend that doesn’t seem to dampen anti-abortion activists’ enthusiasm in the least. Instead, they find a new way to claim every loss a success, either crowing about the narrowing margins by which they lost, or claiming victory in the amount of money they forced the opposition to spend to campaign against them.

“Personhood” and total abortion bans have been immensely and consistently unpopular, and have always been rejected by the majority in each state—regardless of how conservative each state may be. Bringing those bills to the legislature, though? That’s a tactic that has been mostly avoided—at least until this year. Now, it appears states can’t get them introduced fast enough.

Since Election Day, at least four states have announced intentions to file new laws that, if signed by their governors, would make abortion completely illegal. Unlike “heartbeat bans”—previously, the most extreme type of anti-abortion legislation drafted for multi-state consumption—these are much more thorough, punitive, and as unconstitutional as you can get.

Indiana State Rep. Curt Nisly—most recently renown for getting caught retweeting racist post-election commentary—promised to introduce the “Protection at Conception” bill in the next session. The bill would criminalize abortion at any stage and for any reason by emphasizing that the Indiana legal code already states that human life begins at fertilization. “Simply stated, an abortion in Indiana would be treated like any other intentional death,” anti-abortion group Hoosiers for Life explains in its talking points. “Law enforcement would investigate this intentional death. The prosecutor with jurisdiction would then file any charges deemed appropriate for the wrongful death.”

Indiana’s author hasn’t made it clear yet if the person having the abortion will be one of the people facing charges. However, Idaho’s bill sponsor has no problem announcing that he intends to jail the pregnant person, too. Idaho State Senator Dan Foreman’s new bill will make all abortion first-degree murder, sentencing the doctor and the pregnant person with possible life imprisonment or even the death penalty. Foreman calls a woman’s right to control her own body by ending a pregnancy “poppy-cock,” telling one news station in the state: “I'm not telling any woman what to do with her body. I would be completely against the government telling a woman or anyone else what to do with their body, but that logic is flawed when they use that.” But Foreman believes that the pregnant person is essentially “telling the child what to do with his or her body.” His planned bill would follow the path as a petition currently gathering signatures in Idaho that aims to put the same legal declaration up to a popular vote, the more traditional route for these measures.

And in Iowa, a total abortion ban bill appears to be floating around without a sponsor. But anti-abortion advocates vow it won’t be long until they find one. According to the Des Moines Register a coalition of nine anti-abortion social conservative groups have banded together to push a ban in the state. “The bill is still being drafted, but there is no doubt it will have multiple co-sponsors, officials said,” the paper reports, with one group leader declaring, “We believe that life begins at conception.”

Texas will always be at the heart of any new anti-abortion trend, and this time is no exception. Last week, an Arlington Republican filed the “Abolition of Abortion in Texas Act,” which would not only make abortion illegal but essentially tells the federal government that its own rules on abortion simply don’t register in the state. “The bill, which directs state officials to ignore ‘any conflicting federal’ laws, would criminalize abortion except when a mother’s life is at risk due to pregnancy complications,” reports the Texas Observer. “The bill classifies a fetus as a ‘living human child’ from the moment of conception, and it argues that a fetus has the same privileges and rights as ‘any other human child.’”

To be sure we have seen “abortion as a felony” bills before, most recently in Oklahoma, where the state legislature voted last May to make abortion murder and revoke the license of any doctor who provided the service. That bill was vetoed by Republican Governor Mary Fallin, who said that the “life of the mother” exception was not defined clearly enough to pass the scrutiny of any higher court. Yet the number of legislators introducing these new total abortion bans—and their apparent willingness to break the cardinal rule of pro-life etiquette by demanding that the patient be thrown in prison as well—is both unprecedented and downright alarming.

So why the shift, and why now? It’s all about prepping the landscape for President-elect Donald Trump and the far right’s domination of state and federal government, which begins on Friday. Conservatives believe they have in their sights the end of abortion as a guaranteed right in every state—and that’s just the beginning.

"There is a clear shift in states to anti-abortion lawmakers preparing for the potential that Roe will be overturned. These are trial balloons,” said Jessica Mason Pieklo, Legal Analyst at Rewire.news and my co-author on a book about red-state abortion laws meant to challenge Roe v. Wade. “They know it won't happen this year, or likely even next. But that's not the point. It's about priming for that scenario and being ready to pounce with immediate criminalization if it should happen.”

These “abortion is murder” bills are being used to set up a state-by-state patchwork of trigger laws to set the stage for states’ rights on terminating a pregnancy. While the far right waits for another Supreme Court vacancy, they are preparing their swatch of states where it will be completely illegal once the SCOTUS says the federal government can no longer make the rules. However, they aren’t stopping there. They want abortion illegal across the country, and that is the second step of the “felony abortion” plan.

The anti-abortion movement thinks it is just one or two states away from a Constitutional amendment banning abortion—and they just might be right.

It takes two thirds of the states to ratify a Constitutional amendment once it has made it through both chambers of Congress and the president of the United States. Thanks to a series of conservative wave elections and diligent on the ground get out the vote work, Republicans control the legislatures of 32 states, and have Republican governors in 24 of those. That means there is a very strong possibility that an amendment to the Constitution declaring “life” to begin at fertilization and be protected from every moment thereafter is a legitimate possibility.

These “abortion is murder” bills are the dark horses being used to test just how ready the public is for this final push. It is a path that should frighten anyone who supports reproductive rights, since it would remove the Supreme Court from the equation altogether, even if abortion-rights politicians eventually win back the White House and Senate. A Constitutional amendment would enforce the actions of a conservative court intent on diminishing abortion rights, and would undo any gains made from liberal readings of the Constitutional right to abortion found in Roe, or later abortion rights cases decided by SCOTUS. According to Mason Pieklo, “Democrats have been losing governorships and state legislatures at a rate where we are looking at the possibility of not having the ability to stop a Constitutional amendment creating fetal personhood should the Supreme Court either refuse to take up a direct challenge to Roe, or, even worse from anti-abortion lawmakers' perspective, take up a challenge and re-affirm Roe, Casey, and Hellerstedt.”

When it comes to legal abortion we aren’t in the end times quite yet. But it is fair to say that the end of legal abortion—and the incarceration of the people who undergo the procedure—is no longer the stuff of Hulu series plot lines or misguided presidential contenders. So grab onto your Constitution, folks, it’s going to be a bumpy ride.

Robin Marty is a freelance writer and speaker and the author of CROW AFTER ROE, a book outlining the blueprint to end abortion one red state at a time. Marty’s articles have appeared at Cosmopolitan.com, Politico, The Guardian, and other publications, and she is a Women’s Media Center SheSource Expert on Reproductive Rights and Politics. Follow her: @robinmarty
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