Anti-abortion groups have pursued laws restricting and prohibiting abortion for decades. : NPR
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For two decades, opponents of abortion rights have been drafting so-called model legislation and pushing for measures to restrict and ban abortions to be passed in state homes across the country in sight of the possible fall of Roe vs. Wade.
Model legislation and concerted political pressure from national organizations that oppose abortion rights have resulted in the cementing of key terms in laws, the limitation of access to abortion and the influence behind trigger laws that will go into effect in 13 states this summer following the Supreme Court’s recent decision to overturn deer.
Americans United for Life and the National Committee for the Right to Life are leading the pack in crafting anti-abortion legislation. invoices.
“Building on last year’s momentum, two states, Idaho and Utah, passed conditional bills similar to the AUL model bill, which would ban abortion in the case where Roe v. Wade would be overturned or if legislative authority were otherwise returned to the states,” touts AUL 2020 State Legislative Sessions Report.
Over the past few decades, both groups have worked to increase abortion restrictions nationwide, eventually leading to abortion bans in some states, said Elizabeth Nash, a state policy analyst for the Guttmacher Institute, a think tank that supports abortion rights.
“What the national groups have been able to do is basically craft this language about restrictions and bans and they have the networks to get it out across the country in all these state legislatures. So you see these bills very similar moves forward very quickly and that gave the restrictions momentum,” Nash said. “So we’ve seen these legislatures pass restriction after restriction and that’s caused states to start thinking about banning abortion, because most of those states had adopted just about every restriction in the book.”
This legislative pattern occurred when the composition of the Supreme Court became more conservative.
“Little by little with this incremental approach, we were able to strip deer from its origin,” said Ingrid Duran, director of the state legislation department at the National Right to Life Committee. “That’s why after all these election cycles and different political appointments, it was very easy to see the disappearance of deer.”
Both national groups, according to Nash, have largely focused their efforts on abortion restrictions that could be immediately enacted with few legal challenges. The blackouts, were the court to overthrow Roe, were more symbolic.
“It originally seemed like a way for state legislatures to basically announce their intention to support banning abortion,” Nash said. “But because the effective date was in the future, it was also not possible to challenge the bans as they were not taking effect.”
Over the past few decades, the National Committee on the Right to Life has succeeded in having its draft model laws passed across the country. One example is his proposed “Pain Capable Unborn Child Act,” which makes it illegal to perform abortions after 20 weeks, the point at which advocates claim a fetus can experience pain. The National Right to Life version of the bill has been signed into law in 16 states, according to Duran, although it has been legally blocked in Idaho.
As of 2016, 13 states have passed the NRLC Model Legislation Protecting the Unborn Child from Abortion by Dismemberment Act, all of which include the same definition of “dismemberment.” Kentucky used the same model but adopted its own definition of “dismemberment”. Many of these laws have been interrupted by legal disputes.
Also during the Trump years, proponents of abortion rights say they began to notice terms like “unborn child” as opposed to “fetus” or “embryo” in the legislation that was eventually signed into law; the term is included in 12 of the 13 trigger laws.
The use of model anti-abortion legislation is not new. In 2019, a survey of USA Today and the Arizona Republic found that AUL was the first group to draft abortion-limiting access legislation that was introduced and passed in state houses nationwide.
Both organizations have also served as resources for local organizations seeking to develop bills. For example, Louisiana’s trigger law is not necessarily based on a single model, but Louisiana Right to Life uses the legal advice and guidance of the national organization, NRLC.
The Supreme Court influenced influencers
Duran said that when drafting model legislation, much of it went to former Justice Anthony Kennedy, who retired in 2018, because he was seen as the court’s deciding vote.
“We were looking at what brand new question could we ask the Supreme Court. And at that point, if we were looking at a Kennedy tribunal…we were like, well, let’s ask a different question,” Duran said, adding that the group had a legislative strategy focused on pain-based arguments in the event of a larger lawsuit. Bills like the Pain Capable Unborn Child Act were supposed to get more support from Kennedy than stricter bans.
The 13 trigger laws expected to take effect in the coming weeks were all passed by their respective legislatures during two time periods: between 2005 and 2007, under the Bush administration, and between 2019 and 2021, under the Trump administration. . During both, the Supreme Court won additional conservative justices.
“It really depends on the political climate. It depends on what you can push through and also on the legislative strategy,” Duran said, noting that over the past two decades some states have opted for measures limiting access. while others have chosen to pursue trigger laws. .
Former President Donald Trump campaigned and delivered on his promise to appoint additional justices and justices who opposed abortion rights.
Nash said the last two waves of abortion bans came following the appointments of Justices Brett Kavanaugh, in time for the 2019 state legislative sessions, and Amy Coney Barrett, in time for the sessions. legislation of 2021.
“Our strategy was to put in more protective language to see what we can do and if he tries different pieces of legislation like anti-discrimination abortion bills, trying to protect unborn children even earlier in pregnancy,” Duran said. “It allowed us to get a little bolder in our request when we had a more user-friendly court…It allowed us to be a little more creative with our laws and see how far we can go to effectively protect unborn children.”
Moving Forward: Local Influence Reigns
But each of the trigger laws is not necessarily based on a cut-and-paste format of a model bill drafted by national groups, local groups opposed to abortion rights and affiliated with national organizations with greater influence.
During the first wave of abortion bans between 2005 and 2007, Nash said, the legislation was mostly driven by grassroots efforts. During the wave of bans that followed in 2019 and after, local affiliates continued to push forward.
“On the one hand, it means that what you see coming from the states is not necessarily coming from the voters in those states, but it is coming more from the anti-abortion groups in those states than from the national level. So each law is more appropriate to conditions in the state,” said Mary Ziegler, a legal historian and professor of law at Florida State University. In contrast, she noted, the national character of the movement led to more moderate measures. “There were a kind of things that, even though the agenda of the movement was pretty much the same, there were things that weren’t said or done because it was seen as jeopardizing the plan more wide.”
These provisions could include any law that would not preclude a domestic legal dispute.
“It’s a free game because before there was a lot more coordination. Americans United for Life and the National Committee for the Right to Life basically coordinated everything,” Ziegler said. “You would know which bands to watch and why. And now I think that’s not so. So which bands are going to dictate? The strategy may depend on the state.”