New State Laws Limit Reproductive Rights

Recent laws in Nebraska and Oklahoma highlight how a number of right-wing state leaders are attacking women's reproductive freedom.  These bills range from replacing the viability standard established by the U.S. Supreme Court, to forcing women to watch an ultrasound as their doctors explain the status of the fetus, to precluding women from suing their doctors if the latter misinforms women of the well-being of their fetuses.

Nebraska's Unconstitutional "Fetal Pain" Law:  Earlier this month, Nebraska enacted LB 1103, which changed existing law to define viability at 20 weeks on the unfounded theory that a fetus, by that stage in pregnancy, has the capacity to feel pain.  Nebraska’s law is the first in the nation to restrict abortions on this basis.  Exceptions to this law only occur in the event of a medical emergency, the pregnant woman’s imminent death, or a serious risk of "substantial and irreversible physical impairment of a major bodily function":  a provision experts interpret as an effort to exclude an exception based on a woman’s mental health.

National advocacy organizations such as the Center for Reproductive Rights have vociferously expressed their opposition to the Nebraska law, which will likely set off a constitutional challenge before the United States Supreme Court, since the standards set in LB 1103 are based on the assertion that fetuses feel pain, not on the ability of a fetus to survive outside of the womb, the legal standard established by the U.S. Supreme Court.  Experts like the American College of Obstetricians and Gynecologists have noted that the question of pain felt by a fetus is an intense and unresolved debate among researchers and advocates on both sides of the abortion question.

In a letter to Republican Gov. Dave Heineman urging him to veto the bill, the Center for Reproductive Rights declared that LB 1103  was unconstitutionally vague, could prevent women from accessing essential reproductive health care, and threatens a woman’s constitutional right to choose to terminate her pregnancy.  It would also require doctors to violate medical ethics and standards of care.

If LB 1103 did not cause enough harm to women’s health, another Nebraska law, LB 594, requires health care providers to screen women for at least one hour for possible physical or mental risk before they get an abortion.  Another bill that is the first of its kind in the United States, LB 594, further restricts a woman’s constitutional right to get an abortion before viability.

Oklahoma:  Just yesterday, Oklahoma's conservative Legislature voted to override Gov. Brad Henry's vetoes of two anti-reproductive health measures, even after the governor signed two other anti-choice bills.

• Mandatory Ultrasounds:  The first, HB 2780, will require women seeking to terminate a pregnancy to undergo a mandatory ultrasound as well as hear a detailed description of the development of the fetus.  No exceptions are made for rape and incest victims.  Although laws in other states require ultrasounds before an abortion, Oklahoma's new mandate becomes the strictest policy because the doctor would also have to describe the status of the fetus as the woman views the ultrasound image. 
• Allowing Doctors to Mislead Patients:  A second law, HB 2656, prevents women who have a disabled baby from suing a doctor for withholding information about birth defects while the child was in the womb.  This law will protect doctors who purposely mislead a woman to keep her from choosing an abortion.
• Other Bills to Discourage Abortion:  In addition, one law (HB 3075) was signed to require clinics to post signs stating that a woman cannot be forced to have an abortion, and another (HB 1595) makes it illegal to have an abortion because of the sex of a child.  Two additional bills are working their way through the Oklahoma legislature: one would force women to fill out a lengthy questionnaire about their reasons for seeking an abortion and another restricts insurance coverage for abortion procedures.  As Anita Fream, the chief executive of Planned Parenthood of Central Oklahoma elaborates, "These laws all have the same goal, and that's to discourage women from seeking abortions in the first place."  With so many restrictions in place, Oklahoma is taking a shameful lead position in violating women's constitutional right to make choices about their reproductive health.

It is even more unfortunate that Nebraska and Oklahoma are not the only places that are seeking to limit women’s reproductive rights.  A dozen other states are passing or debating new restrictions.  Elizabeth Nash of the Guttmacher Institute, a research group focused on reproductive health and rights, observes, “This year, particularly in the past couple of weeks, it’s really turned into a free-for-all on trying to restrict abortions.”  The Institute argues, "these measures are widely viewed as an attempt to provoke a legal challenge to Roe."

Rising Clash of Anti-Abortion Versus Pro-Choice State Policies:  While the Guttmacher Institute details that 20 states have laws that could be used to restrict the legal status of abortion, they also identify seventeen states, including some of the largest like California, Illinois, and New York, which broadly fund abortions for women on Medicaid, reflecting the wide range of state approaches on the abortion issue.  The fact that some states like Oklahoma and Nebraska are pushing such egregiously bad bills is a signal that other state leaders need to step up to protect and expand upon their own pro-choice approaches.