In its landmark Roe vs. Wade privacy ruling, the U.S. Supreme Court concluded 40 years ago that the government may not intrude on a woman's reproductive freedom. But that freedom is being endangered in Republican-controlled state legislatures across the country that are eager to test whether the current court would affirm that right.
Last week, North Dakota's legislature passed two antiabortion measures intended to make the majority of abortions in the state illegal. One would outlaw abortions after a fetal heartbeat is detectable — as early as six weeks into a pregnancy, when many women don't even know they're pregnant. More than 75 percent of abortions could be outlawed if the measure becomes law, according to the Guttmacher Institute.
Under another North Dakota bill, women would no longer be allowed to obtain an abortion if it is sought because the fetus has a genetic abnormality such as Down syndrome. Older women are particularly at risk for such complications. Both measures are awaiting action by the state's Republican governor, who has not indicated whether he will sign them into law. North Dakota's actions follow a newly passed law in Arkansas barring most abortions after 12 weeks of pregnancy.
These bills are clearly unconstitutional under Roe, which guarantees women the right to obtain an abortion until a fetus is viable and can live on its own outside the womb, generally through the second trimester or 24 weeks of pregnancy. Religious conservatives are testing the strength of that legal precedent because they see some unique opportunities. The Republican dominance of state legislatures has boosted the ability of abortion-rights opponents to get measures passed. In 2011, states passed a record 92 laws that chipped away at access to abortion. In Florida, Gov. Rick Scott signed an intrusive law — which had been vetoed the previous year by Gov. Charlie Crist — requiring women to obtain an ultrasound before an abortion. In 2012, another 43 restrictions were passed by state legislatures. And a narrow majority on the Supreme Court has upheld nearly every new restriction on abortion rights that has come before it, including unnecessary waiting periods, with some justices welcoming the chance to overturn Roe entirely.
Sixty-three percent of registered voters support the Roe decision legalizing abortion, according to a recent Quinnipiac University poll. Florida voters in November turned back an antiabortion constitutional amendment that would have barred state funding of abortion services and health insurance that covered abortions and weakened the state's reproductive freedom rights.
A majority of Americans are not interested in returning to the days when women resorted to dangerous back-alley abortions performed by unlicensed practitioners. Yet state legislatures are pushing the envelope, ignoring abortion rights and legal precedent to force the Supreme Court to directly address Roe vs. Wade. It is a dangerous game of chicken, and women are caught in the middle.