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States see new tactic on abortion legislation

Updated: 2013-07-26T04:23:08Z

By BRAD COOPER

The Kansas City Star

State legislatures passed fewer but more powerful laws restricting abortion this year, aiming less to tweak restrictions and more to outlaw the procedure.

Nationally, lawmakers have passed about half as many restrictions as the record-setting year of 2011 after Republicans gained control of many statehouses.

Still, abortion-rights supporters see the laws this year as increasingly restrictive.

North Dakota banned abortion at six weeks. Arkansas banned most abortions at 12 weeks. Wisconsin and Alabama banned doctors from performing abortions if they don’t have admitting privileges at a nearby hospital.

And Texas adopted a law requiring abortions be performed only in hospital-type settings. Opponents say that could force the closing of a majority of the state’s abortion clinics.

“Legislatures have been very busy trying to restrict abortion in every way they can,” said Julie Rikelman, litigation director for the Center for Reproductive Rights.

So far this year, state legislatures approved 50 restrictions on abortions, far less than the record 92 passed in 2011, according to the Guttmacher Institute, which tracks abortion legislation. Last year, there were 43 restrictions passed.

Only about a dozen state legislatures are still meeting, including two that are in special session.

Kansas is now in court over the abortion issue for the fourth time since 2011, defending a law enacted this year that abortion providers said would make it nearly impossible for a woman to obtain an emergency abortion.

The wide-ranging law attacks abortion through the tax code by barring tax breaks for abortion providers. It also prohibits abortions based on the sex of the fetus. It requires clinics to post links on their websites to state information about abortion and fetal growth that critics say is false or misleading.

Missouri enacted a law requiring doctors to be physically present when a patient takes abortion-inducing drugs and bans the use of telemedicine to prescribe the medication remotely.

The difference this year is how states are striking at the heart of abortion access. In earlier years, abortion supporters say, the new rules generally just made it harder to get the procedure.

Laws requiring ultrasound tests, waiting periods or counseling have lost luster while lawmakers press measures that push against court rulings that have for a generation protected the right to an abortion.

“It’s just a more brazen attack,” said Helene Krasnoff, assistant litigation director for Planned Parenthood Federation of America.

Abortion opponents see the new laws as reflective of public opinion.

“This is America speaking, not a band of a few people,” said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List. “There are people looking at where do we draw the line.”

Some leaders in the anti-abortion movement say efforts to hit the legislative home run on abortion are fueled by a younger generation.

More experienced leaders are willing to nibble around the edges of abortion and wait to get a law in place that protects the unborn. Younger factions of the movement want more dramatic restrictions, and they’re unwilling to wait.

“They tend to be more idealistic and more optimistic in a quick fix,” said Mary Spaulding Balch, state legislation director for the National Right to Life Committee.

What’s happening in statehouses now is akin to what happened immediately after the U.S. Supreme Court handed down its Roe decision legalizing abortion in 1973.

The first response, Balch said, was to try to amend the U.S. Constitution. Then came other approaches, such as changing the political makeup of state legislatures and pushing step-by-step restrictions.

“The new people coming into the movement are doing what the new people who were presented with legal abortion originally did,” Balch said. “A natural, immediate reaction is you just have to stop it.”

The new laws this year have spurred a wave of litigation. Eight lawsuits have been filed in six states this year, including two lawsuits challenging the same abortion law passed this year in Kansas.

Here’s a look at what’s happened so far:

•  Earlier this week, a federal judge in North Dakota temporarily blocked a law banning abortions when a fetal heartbeat is detected, possibly as early as six weeks. An Arkansas law banning most abortions at 12 weeks also has been put on hold while it’s litigated.

•  Federal judges temporarily blocked laws enacted in Alabama and Wisconsin allowing only doctors with admitting privileges to nearby hospitals to perform abortions. Abortion-rights supporters said the law would close three of Alabama’s five abortion clinics and two in Wisconsin.

•  A state judge in Kansas temporarily halted part of a new abortion law that providers argued redefines medical emergency in a way that women would still be subject to the state’s 24-hour waiting period even if their lives were in jeopardy.

Court orders also blocked a Kansas provision requiring abortion clinics to declare on their websites that state health department information about abortion and fetal growth is accurate and objective.

In 2011, abortion foes passed five bills regulating abortion in Kansas, three of which were challenged in court. One law creating new rules for abortion clinics came within hours of closing down the state’s three clinics in 2011. Those rules are still hung up in court.

The surviving restrictions are credited partly for Kansas seeing fewer abortions. Last year, abortions fell to their lowest mark in the state since 1987. Overall, abortions are down 11 percent since 2010, the year before Gov. Sam Brownback, who is staunchly anti-abortion, was elected governor.

What’s next?

Advocates on both sides of the issue say there’s little territory left, short of trying to pass something close to the type of aggressive efforts seen in North Dakota or Arkansas.

“I can’t see anything else apart from banning it completely,” said Troy Newman, president of the anti-abortion group Operation Rescue.

A bill introduced in the Kansas Legislature in recent years would ban abortion when a heartbeat can be detected.

But the anti-abortion movement has been split. Some abortion opponents want a more gradual approach that will win in the courts. As a result, the bill has had trouble getting very far in the Legislature.

Kansans for Life generally does not disclose its agenda. But Mary Kay Culp, the group’s executive director, wants to refine the state’s ultrasound law so the features of a child are pointed out and explained to the woman carrying the fetus.

“We have plenty of fodder to further protect unborn children and their mothers,” Culp wrote in an email.

To reach Brad Cooper, call 816-234-7724 or send email to bcooper@kcstar.com.

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