By Louise Radnofsky
States are becoming increasingly polarized over abortion, as some legislatures pass ever-tighter restrictions on the procedure while others consider stronger legal protections for it, advocates on both sides say.
In March, Arkansas passed a law prohibiting most abortions after 12 weeks of pregnancy, giving it the strictest laws against the procedure in the country. It was quickly surpassed by North Dakota, which last week banned the procedure as early as six weeks into a pregnancy.
The moves come after a record number of antiabortion bills were enacted in legislative sessions in 2011 and 2012, giving some states stricter regulation of the procedure including curbs on clinics and chemically induced abortions.
At the same time, Washington state is weighing a measure that would require all insurers doing business in new health insurance exchanges created by the Affordable Care Act to reimburse women for abortions. And New York Democratic Gov. Andrew Cuomo is seeking to update his state’s laws to clarify that women can obtain an abortion late in pregnancy if they have a medical reason.
The Guttmacher Institute, a think-tank supportive of abortion rights, says its legislative tracking shows hardening positions in states that are broadly favorable to abortion rights and those that are opposed, as they adopt an increasing number of laws governing access to the procedure. The institute’s findings also note a “shrinking middle ground” over the past decade as fewer states maintain a mixed set of policies.
Americans United for Life, a group that crafts model legislation aimed at curbing abortion, ranks states based on how many laws they have regarding the procedure and draws similar conclusions about each state as the Guttmacher Institute does.
“We are seeing an incredible acceleration in the speed and in the breadth of the restrictions on abortion that are passing,” said Nancy Northup, president of the Center for Reproductive Rights, which supports abortion rights and challenges some of the state laws in court.
The states’ positions are at odds with overall American public opinion about abortion, which is more moderate and less clear-cut. Polling conducted for The Wall Street Journal and NBC News earlier this year found that seven in 10 Americans say they support abortion being legal. But a similar proportion of respondents say there are at least some situations in which they believe abortion should be illegal.
State legislators seeking to limit access to abortion have the backing of a 1992 Supreme Court decision, Planned Parenthood v. Casey, confirming states can restrict the procedure in ways that fall short of banning it entirely. In recent years, more abortion opponents have turned their attention to state legislatures, especially after gains by conservative lawmakers in 2010 elections.
“In the states things can happen very quickly,” said Marilyn Musgrave, vice president of government affairs at the Susan B. Anthony List, a political action committee created to elect antiabortion female lawmakers to Congress.
Some antiabortion advocates seek a direct legal challenge to Roe v. Wade and successive Supreme Court decisions that established states couldn’t ban abortions carried out before a fetus becomes viable, or able to survive outside the womb.
The early-pregnancy bans in Arkansas and North Dakota are a victory for those advocates, and they are certain to end up in the courts. North Dakota Gov. Jack Dalrymple, a Republican, characterized his state’s new law as “a legitimate attempt by a state legislature to discover the boundaries” of the Roe decision. Any path to the Supreme Court likely would be slow.
Court rulings have found that physicians determine viability, which generally is considered to occur after 22 weeks of pregnancy. The laws in North Dakota and Arkansas link viability to the presence of a fetal heartbeat, using differing detection methods.
Leading antiabortion groups typically have given lukewarm support to restricting the procedure early in pregnancy, saying they think they have stronger legal grounds for tightening access to abortion through controls on clinics and regulating abortions carried out using a pill rather than a surgical procedure.
The number of U.S. abortion providers has declined since its peak in 1982, when there were 2,809, according to a count by the Guttmacher Institute that is considered the best available data by activists on both sides. The number began to stabilize around 1,800 between 2005 and 2008, the most recent year for which figures are available. North Dakota, for example, has one provider, down from three in 1982.
Fewer states have debated legislation affirming abortion rights in recent years, but expanded insurance coverage through the U.S. health law is giving abortion-rights advocates a new avenue to protect the procedure starting next year. Washington state is attempting to become the first state with explicit requirements for insurers to cover abortion. The mandate would apply to health plans sold through the state’s insurance exchange, and elsewhere, that include maternity coverage.
The 2010 health law requires insurers to guarantee that federal dollars used toward the cost of premiums don’t directly cover abortion. Naral Pro-Choice Washington, a group that has advocated for the legislation, says its attorneys have highlighted a provision in the Affordable Care Act that says the federal law cannot pre-empt state laws that prohibit or require abortion coverage.
Sixteen state Constitutions protect the right to an abortion and an additional five states have laws that do so. In New York, Mr. Cuomo said he aims to incorporate protections for abortion late in pregnancy into state law in case the U.S. Supreme Court ever reconsiders the Roe decision.