More than 40 years after their landmark decision in Roe v. Wade, the United States Supreme Court is continuing to defend the reproductive rights of women from repressive pieces of state legislation. This month, two of the most restrictive abortion laws in the country were thrown out by the Supreme Court after being deemed unconstitutional. Both laws included harsh bans on abortions that were incompatible with the precedent set by Roe v. Wade. Thanks to these important rulings, women in Arkansas and Nebraska have regained a measure of control over their reproductive health.
The first victory came in Arkansas.
Enacted in 2013, the Human Heartbeat Protection Act included a ban that made it illegal for women to get abortions in Arkansas after 12 weeks of pregnancy if a heartbeat could be detected. After being challenged by doctors, lower courts were able to prevent the ban from going into effect. Now, two years after it was first passed, the Supreme Court has upheld the lower courts’ decisions, definitively eliminating the 12 week ban.
In 1973, the court’s decision in Roe v. Wade established fetal viability as the determining factor in a woman’s right to an abortion. A fetus is “viable” if it is “potentially able to live outside the mother’s womb, albeit with artificial aid.” Viability typically occurs at around 23 or 24 weeks in a pregnancy – twice the duration of the ban in the Human Heartbeat Protection Act.
“Arkansas politicians cannot pick and choose which parts of the Constitution they want to uphold,” said Nancy Northup, president and CEO of the Center for Reproductive Rights in a statement. At 12 weeks, fetuses may have a heartbeat, but they are far from viable. Likewise, the ban in Arkansas is in direct contention with the long-upheld ruling of the highest court in the nation.
Then, In North Dakota, the Supreme Court blocked a similar law as well.
This “fetal heartbeat” law was similar to the legislation in Arkansas, but potentially even more restrictive. Under this law, a woman could be prevented from having an abortion just six weeks into a pregnancy. NPR’s Jennifer Ludden points out that many women don’t even realize they’re pregnant six weeks after conception in a recent article. In an attempt to defend the law, North Dakota legislators argued that, due to recent advances in medical technology, a fetus is effectively viable at conception.
After this defense was rejected by a lower court, North Dakota Attorney General Wayne Stenehjem made a bid for a review by the Supreme Court. Now that the bid has been rejected, there’s nothing more state lawmakers can do to revive the law.
Legal victories such as these are critical, but the fight for women’s reproductive rights is far from over.
In March, the Supreme Court is scheduled to hear a case fighting a Texas law which has effectively crippled all but nine of the state’s 48 abortion clinics. Under the HB 2 law, abortion clinics can only employ doctors with admitting privileges to hospitals as far as 30 miles away. This stipulation has left millions of women in rural Texas without access to reproductive care.
Laws such as HB 2 take a somewhat different approach to restricting reproductive care than the laws in Arkansas in North Dakota. Rather than directly limit a woman’s right to have an abortion, they indirectly limit their access to reproductive care while claiming to make abortion clinics safer. It’s not clear, however, how the 30 mile restriction makes abortion services safer for women. Rather, it simply makes it more difficult for women to access any kind of reproductive care. With this in mind, many lawmakers are expecting the Supreme Court to overturn HB 2 in March.
According to the Guttmacher Institute, there are still 24 states with laws or policies that “regulate abortion providers and go beyond what is necessary to ensure patients’ safety.” We can only hope that further judicial review by high courts will reduce this number drastically in the years to come.