The first “fetal heartbeat” law — banning abortion at what was at the time a flagrantly, almost laughably unconstitutional six weeks — was proposed 26 times before it found a state legislature willing to advance it. Signed into law in North Dakota in 2013, the ban was quickly struck down by the Supreme Court. But in the years that followed, more states began to warm to the idea of outlawing abortion much earlier than was previously imaginable. Many more.
When the Supreme Court overturned Roe v Wade on Friday, 12 states had passed laws banning abortion at 6 weeks. Five states had passed near-total bans on abortion at any point in pregnancy. Thirteen had “trigger bans” on the books that would automatically snap into effect banning abortion if and when the Supreme Court overturned Roe. Several states had all three. Many, if not most, of those laws were written by organizations like Americans United for Life.
For decades, Americans United for Life had worked quietly, diligently, incrementally: drafting model legislation (including those six-week heartbeat bills), coaching Republican lawmakers on how to advance it in their home states, and helping defend the legislation when it is inevitably challenged in court. A 2019 investigation found AUL was responsible for the vast majority of some 400 anti-abortion bills introduced in 41 states.
Their project was wildly successful: On Friday, some states had so many layers of conflicting previously-unenforceable laws on the books that some abortion clinics suspended operations the moment news broke, turning patients away out of fear of ending up on the wrong side of one of those laws.
If there is a moral to this story, it might be to take the anti-choice groups who worked for decades to help overturn Roe v. Wade at their word. And in the words, on Friday, of AUL’s president, Catherine Glenn Foster, their work has “truly just begun.”
At a Heritage Foundation panel on “Life After Roe” last week, Clarke Forsythe, senior counsel for Americans United for Life, discussed the possibility of a constitutional amendment banning the procedure nationwide. For that, Forsythe said thoughtfully, “We’re going to have to secure 38 states.” (Vice President Mike Pence and Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, with whom Pence reportedly has close ties, both called for a similar nationwide ban Friday.)
Forsythe was bullish too about the idea of further restricting medication abortions — either at the state or federal level. “The states have been working over the past decade to limit chemical abortions in a number of ways,” said Forsythe. “But it’s also within Congress’ power, expressly in the Constitution, to pass a federal law on that. And at the earliest possible opportunity, Congress should pass a federal law.”
One day before the Heritage Foundation event, the National Right to Life Committee, the oldest and largest anti-abortion group in the country, released its own “roadmap for the right-to-life movement” post-Roe — to “protect… mothers and their children from the tragedy of abortion.”
The 29-page model law represents a dramatic escalation of many of the tactics already mainstreamed by anti-abortion groups. It proposes a total nationwide ban on abortion with no exceptions other than to prevent the death the mother. It would prohibit the prescription and distribution of mifepristone and misoprostol the two-step abortion pill protocol (“trafficking in abortifacients”), and it would treat as a criminal anyone who might give “instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion.”
Many of the provisions seem ridiculously, patently unconstitutional — ‘Oh, they’re just going to criminalize free speech?’ — like those “fetal heartbeat” laws did ten years ago.
Lawyers who work in the reproductive rights realm are taking them seriously. “I can’t overstate how extreme this bill is,” Jessica Arons, ACLU senior policy counsel, tells Rolling Stone. “It’s a complete ban on abortion with no regard for the health of the patient. There’s only an extremely limited life exception – a patient would basically have to be dying on the table for doctors to be able to intervene, and by then it could very well be too late.”
Like Texas’ abortion bounty law, SB 8, the National Right to Life Coalition’s law promotes the use of civil lawsuits to discourage abortions. There is a more narrow range of individuals who would be eligible to file suits under the bill, but includes friends and family as well as the fetus’ biological father, Arons says, “without any exception for if there was rape or other sexual violence or intimate partner violence so it’s something that can easily be used as a tool to further abuse in an abusive relationship. That’s just a starting point… The chilling effect of this kind of ban would be extensive.”
Under the law, organizations like Planned Parenthood might be treated as criminal syndicates. (“The whole criminal enterprise needs to be dealt with to effectively prevent criminal activity, so RICO-style laws were adopted to provide effective remedies against the whole criminal enterprise,” an introduction to the model law explains. “This illegal abortion industry will be well-funded and well-organized, operating as an illegal abortion enterprise that will need to be stopped to prevent illegal abortions from occurring.”)
Already, some states like Missouri, have considered making it a crime to help someone travel out-of-state to obtain an abortion. The National Right to Life Coalition’s proposed law would extend that logic a step further, threatening providers, Arons says, “who are acting lawfully under their own state laws.”
On Friday, Julie Rikelman, Senior Director of U.S. Litigation at the Center for Reproductive Rights and the lawyer who argued Dobbs v. Jackson Women’s Health Organization before the Supreme Court, told Rolling Stone, “The reality is that we are going to see some of those laws enacted, and they will be challenged, but the ultimate constitutionality of those laws will end up being decided through litigation by the Court.”
Put another way: the laws can only be as extreme as the Supreme Court is. And with this Supreme Court, that’s not a very comforting thought.
“Both the National Rights to Life Committee and Americans United for Life organizations that have routinely put out model legislation where they continue to float up these test balloons to see how far what they can get away with,” Arons says. “Over time, they normalize their extreme ideas. And they do have a captive audience of lawmakers who are willing to run these tests for them, and to push the envelope and to try to pass legislation, and see what the courts will uphold.”
“This is their roadmap,” Arons says. “They are emboldened, they are not trying to hide it.”