Tracking abortion legislation in 2019 is like timing a swim meet where all the competitors have just exchanged their baggy board shorts for Speedos. Records are being broken left and right, with a growing number of states competing to install the most restrictive law in the country. And it’s all moving much faster than anyone watching from the stands expected.
Since the beginning of the year, 14 states have passed, introduced, or moved forward legislation that would ban abortions performed after about six weeks of pregnancy. (Conservatives call them “heartbeat bills,” because fetal pole cardiac activity usually shows up on a vaginal ultrasound around six weeks’ gestation.) Abortion bans this extreme—many people don’t even know they’re pregnant at such an early stage—are both recent and rare. Ohio introduced the first six-week ban in 2011, though it didn’t pass. Since then, until this year, only two states had succeeded in passing such a ban: North Dakota in 2013 and Iowa in 2018. Courts struck them both down, ruling that Supreme Court precedent protects abortion rights up until the point of fetal viability, around 24 weeks’ gestation.
But in the past three months, the governors of Kentucky, Mississippi, and (eight years after its inaugural effort failed to pass) Ohio have all signed six-week abortion bans into law. Georgia Gov. Brian Kemp has signaled his support for one recently passed by the Georgia Legislature. Similar bills are also percolating through the legislatures of Missouri and Tennessee, and they’ve been introduced in eight other states. Abortion rights advocates say 2019 has seen a two-thirds increase in the number of six-week bans introduced compared with this time last year.
In years past, anti-abortion politicians have traditionally moved with caution. With the Supreme Court precedents of Roe v. Wade and Planned Parenthood v. Casey intact, most took an incremental approach to the dismantling of abortion rights, lest a too-dramatic rollback get rejected by the courts, strengthening the Roe and Casey precedents. In 2016, even as she called herself “the most pro-life governor in the nation,” then–Oklahoma Gov. Mary Fallin vetoed a bill that would have made performing any abortion a felony in the state. As Ohio governor, John Kasich earned praise from anti-abortion activists who said he was “laser-focused” on regulating abortion out of existence. But in 2016, Kasich vetoed a six-week ban in favor of a more moderate 20-week ban.
A lot has changed in the past three years. Anti-abortion activists saw Donald Trump’s election as the beginning of the end for abortion rights. (“Hopefully, this will be the last march we have to have,” one March for Life protester told me in January 2017.) Trump fulfilled their expectations when he nominated Brett Kavanaugh, who had proved his anti-abortion bona fides as a federal judge, and shifted the ideological makeup of the Supreme Court. In GOP-dominated state legislatures and governor’s offices, it was like a switch flipped. Republican lawmakers felt emboldened to enact what previously would have been considered blatantly unconstitutional abortion legislation, knowing that the Supreme Court and lower courts freshly stocked with Trump appointees would likely take their side. Instead of coming up with ways to restrict abortion access through indirect means like building codes, anti-abortion politicians took aim at Roe itself.
It’s not just abortion legislation that’s getting increasingly extreme. The anti-abortion movement itself appears to be taking more cues from its far-right fringes—groups that reject the term pro-life and call themselves “abortion abolitionists” instead. Abortion abolitionists prize ideological purity over incremental wins. They fight, for instance, against the exceptions for cases of rape and incest that make anti-abortion bills palatable for more moderate voters. Using quotes from Martin Luther King Jr. and the language of the antislavery and civil rights movements, abolitionists carry the primary argument of the anti-abortion movement—that abortion is the murder of a human being—to its logical conclusion: that abortion should be prosecuted as homicide.
Earlier this week, hundreds of abortion abolitionists testified in favor of a Texas bill that would classify all abortions as homicide and remove the line in the Texas penal code that exempts women from being charged with murder after getting an abortion. If the bill passes, women who get abortions could be eligible for capital punishment.
According to anti-abortion activists, this was the first time a total, no-exceptions abortion ban that would treat the procedure as homicide has gotten a legislative hearing in the U.S. Though the bill is unlikely to pass, the fact that Republican leaders in the Texas Legislature decided to grant it a hearing and allowed more than 400 people to testify in favor of treating abortion-seeking women like murderers marks a shocking shift in the party’s public rhetoric.
“The Texas penal code already defines an individual as ‘a human being who is alive, including an unborn child from fertilization until birth,’ ” Rep. Tony Tinderholt, the author of the bill, said in a statement to Slate. “However, Texas law provides two exceptions to homicide: for a mother or a medical professional who performs an abortion. … Some think we should exempt mothers, but that would inherently treat unborn children differently than other people who are murdered.”
The idea that women should be prosecuted as murderers for terminating their pregnancies has not been a talking point of the mainstream pro-life movement. In public, advocates usually prefer to paint these women as victims of a profit-hungry abortion “industry” led by Planned Parenthood. When Trump said in 2016 that women should be punished if they get an abortion, some major anti-abortion groups gently pushed back, reminding Trump that the scourge of abortion would be punishment enough. But an undercurrent of judgment and a desire for retribution has always coursed beneath the surface of the anti-abortion movement. It’s impossible to reconcile a worldview in which abortion is murder but the half-million U.S. women who get abortions each year have done nothing wrong.
Now that legislators in Texas have shown the way, I predict that more politicians and activists will begin to change their public postures. Anti-abortion politicians are constantly trying to outdo one another—just look at all the governors who claim to lead the “most pro-life” state in the country. If the accelerated pace of extreme anti-abortion legislation in 2019 is any indication, the shift from casting women as victims to trying them as murderers will happen quickly, without concern for public justification. Less than three years ago, many people interpreted the six-week abortion ban that Kasich vetoed in Ohio as a distraction—an outrageous, obviously unconstitutional bill passed to make the 20-week ban seem more reasonable. Now, that six-week ban is law. All it takes is a group of persistent activists and a few bold lawmakers to make the unthinkable thinkable, the radical unradical. The abortion abolitionist moonshot will seem like an extremist movement, right up until it becomes the norm.
