Last month, North Dakota enacted the most stringent abortion restriction in the nation: a radical “fetal heartbeat” ban to criminalize all abortion services after just six weeks of pregnancy. Women’s health advocates are preparing to fight the unconstitutional law in court, and North Dakota has already requested a $400,000 budget increase to fund those legal battles.
But in case the new heartbeat law is struck down, abortion opponents in the state have hedged their bets. The legislature passed a package of multiple abortion restrictions in March — including a 20-week abortion ban, the same type of legislation that has popped up in about eight states across the country over the past several years. On Tuesday night, Gov. Jack Dalrymple (R) signed the 20-week ban into law.
20-week abortion bans are based on the scientifically disputed notion that fetuses can feel pain after that point. These type of measures aren’t quite as blatantly unconstitutional as North Dakota’s six-week ban, but — since Roe v. Wade grants abortion rights until the point of viability, which is typically defined around 24 weeks of pregnancy — they certainly still invite their own legal challenges. The “fetal pain” measures in Georgia and Arizona are currently being blocked from taking effect while courts consider whether they run afoul of Roe‘s constitutional protections.
However, since North Dakota’s fetal pain measure does have a better chance of surviving in court than its six-week ban does, abortion opponents in the state have made a calculated move. No matter what happens with the more stringent restrictions, North Dakota could still successfully chip away at women’s reproductive rights. And that strategy — chipping away at Roe little by little, and using late-term abortion bans to slowly narrow the window for women to legally access abortion services — is working. In 2010, not a single state banned abortion services at or before 20 weeks of pregnancy. Now, 12 states do.
Late-term abortion bans are a popular anti-choice tactic partly because they successfully play on Americans’ emotions. Abortion opponents can leverage gruesome cases like Kermit Gosnell, the Philadelphia abortion doctor currently on trial for murder after performing illegal, late-term abortions, to push bans based on the assumption that late-term abortion procedures are always horrific and immoral. In reality, these types of later abortions are very rare, and the women who seek them typically fall into two categories: economically disadvantaged women who have to delay abortion while they save up the money to pay for it, and women who discover serious health issues that weren’t made apparent earlier in their pregnancy. Pushing to ban these type of abortion services actually represents a movement to outlaw reproductive health care for women in the most desperate of circumstances.