There’s a very strong argument to be made that 2016 was a bad year for reproductive rights in the United States. Yes, the Supreme Court struck down abortion restrictions in Texas ― a case that was heralded as one the most significant victories for abortion rights in this country in decades. But soon after that historic day, Texas legislators doubled down, proposing an outrageous set of restrictions that would require all fetal tissue from an abortion or miscarriage to be buried or cremated.
And Texas was hardly alone. In 2016, 18 states enacted 50 new abortion restrictions, according to a new policy analysis from The Guttmacher Institute. This means that in the past six years alone, 338 new abortion restrictions have gone into effect. Nearly 95 percent of women in the south live in a state that is considered hostile or extremely hostile to abortion rights.
Under a Donald Trump-Mike Pence administration ― with a Republican-controlled congress ― assaults on abortion access are likely to get worse, as evidenced by the states that floated anti-choice legislation before their respective Congresses were even back in session in January. And while federal abortion rights are safe for now, states like Missouri and Mississippi have chipped away at access to such a degree that there is just one abortion clinic left in each state. Plus, state legislatures are already preparing to pass new laws as they convene this winter.
Here’s a preview of some of the scariest restrictions to watch for in the coming legislative session ― and beyond.
#1: Fetal burial rules
In 2016, Indiana, Louisiana and Texas all attempted to enact rules requiring that fetal tissue be cremated or buried. And while all three have been blocked by ongoing court cases, their fate could be decided this year.
The specifics of these so-called “fetal funeral” regulations vary from state-to-state, but taken together reproductive rights experts say they represent an interesting tactical change on the part of anti-choice legislators. For years, they have enacted abortion restrictions under the guise of protecting women’s health. Now they appear to be trying to change attitudes toward the fetus ― with Texas’ governor saying the proposed fetal burial and cremation regulations are meant to “reflect our respect for the sanctity of life.”
At a practical level, these laws create steep extra costs for abortion providers and, potentially, for funeral homes as it’s unclear who would be ultimately be responsible for footing the bill for these fetal funerals.
“It’s another way to close clinics,” Elizabeth Nash, senior state issues manager with the Guttmacher Institute told The Huffington Post. “It’s requiring clinics to contract with another vendor who may not be interested.”
#2: Twenty-week abortion bans
Ohio, South Carolina and South Dakota have all enacted new 20-week abortion bans, although Ohio’s new law, which was signed into effect in December, generated the most media attention. That’s largely because Governor John Kasich signed it at the same time that he vetoed a controversial “heartbeat bill” that would have banned abortions as early as six weeks into a pregnancy (before many women even know they’re pregnant) ― a bill that grabbed a lot of headlines. But a spokesperson for the Planned Parenthood Action Fund described the simultaneous signing/veto as an attempt to appear moderate on abortion rights, while pushing through an “extreme agenda.”
Abortions after 20 weeks ― often known colloquially as “late-term abortions” ― are extremely rare, and most women who decide to terminate at that point do so because of fetal abnormalities or threats to their own health. These women’s stories are often utterly wrenching, and yet anti-choice legislators paint them as heartless and horrific -- like when Trump erroneously described babies being ripped from their mothers’ wombs just prior to birth.
In 2017, Nash predicts that more states will join the 18 in this country that already have 20-week abortion bans. Legislators in states like Virginia, whose state legislature convenes in mid-January, have already proposed legislation (though the governor there has promised to veto a 20-week abortion ban).
“I still think 20-week bans haven’t been passed in all the states where you can see it passed,” Nash said. “They will definitely have some support in state legislatures this year.”
#3: “D&E” bans
Dilation and evacuation abortions, or D&E, are the most common procedure used in a second-trimester abortion as well as after a miscarriage. In the last year, four states (Alabama, Louisiana, Mississippi and West Virginia) all banned D&E abortions, though several of those laws are not in effect because of ongoing legal cases.
In 2017, Nash predicts several states will follow suit. A representative in Arkansas pre-filed a bill that would ban D&E abortions there (making an exception for cases where the pregnancy poses a health risk to the mother, but explicitly excluding mental health concerns).
“When you put the two together ― D&E and 20-week bans ― it’s clear it’s a question of, ‘How can we essentially ban abortion after 12-weeks of pregnancy,’” Nash said.
Estimates suggest that more than 90 percent of abortions in this country take place within the first trimester (13 weeks) of pregnancy, and the factors that can lead to women waiting until the second trimester are often the very things put in place by restrictions, like needing to travel hundreds of miles to access a provider or save money to cover the costs.
“Looking at the pre-files [of bills],” Nash added, “we’re going to be looking at a hard year.”