The fresh battle over late-term abortion stemming from conflict over a Virginia measure has disrupted carefully laid plans to bolster abortion rights across the nation that are under threat from an increasingly conservative Supreme Court — and thrust the issue into the 2020 elections.
Abortion has been a defining issue in America for nearly 50 years. But the debate intensified after President Trump elevated conservative Brett M. Kavanaugh to the Supreme Court, creating a solid bloc of abortion opponents on the bench. Fearing a court decision reversing Roe v. Wade, the landmark 1973 case that established a right to abortion, rights advocates scrambled to push state laws that would maintain access to the procedure if the national protections are knocked down.
Fueled by heightened political activity by women and increasing Democratic strength in state legislatures, abortion rights supporters have pushed initiatives that would expand access to birth control and reproductive care in about half of the states. Last year, advocates said, roughly 100 bills that expanded reproductive rights were enacted in states, in part offsetting years of measures meant to curb access.
In New York, where Democrats won full control of the state government in November, the first measure of 2019 expanding abortion rights was enacted. Other efforts are underway in Rhode Island and New Mexico.
But that was before Virginia Gov. Ralph Northam, a Democrat who is facing calls for his resignation because of a separate controversy over a racist picture in his medical school yearbook, turned the focus from protecting abortion rights overall to a fraught debate over late-term abortion.
Discussing a Virginia bill that would have eased requirements for third-trimester abortions, Northam last week told a radio host what would happen if the procedure resulted in a live birth, in terms that Republicans said implied infanticide. (Northam later said he was discussing medical care that would ensue.)
The first-term legislator who proposed the Virginia abortion bill, Del. Kathy Tran (D-Fairfax), has been vilified nationally; one Democratic legislator in Virginia already withdrew her support from the bill, saying she had not understood all it would do, and apologized to constituents.
More concerning to abortion rights advocates, the abortion debate is now fixed on the least popular aspect of the measures in Virginia and elsewhere.
“Everybody already knows about it,” said Barth E. Bracy, the executive director of Rhode Island Right to Life. “Every representative and senator I spoke to was like: ‘Oh my god, can you believe it?’ . . . They’re just aghast.”
Bracy said politicians in his state are still processing the developments. “It’s just a collective: ‘What on earth is this?’ . . . The response is just very, very raw.”
Abortion rights advocates said the focus by abortion opponents on late-term procedures is simply a new thrust in the long effort to curb access to the procedure.
“We have seen a huge awakening of the public and of the voters who are recognizing just how many state laws have been passed to roll back abortion,” said Andrea Miller, the president of the National Institute for Reproductive Health.
But she acknowledged that new attention is not helpful to her cause.
“This is a cynical campaign to try to slow the roll, to try to interrupt the momentum,” she said.
In a sign of how delicate the issue is, Miller declined to say exactly where her group hoped to push measures that would loosen restrictions on late-term abortions. “Each state’s laws are so different,” she said, “you have to look what is needed in that state.”
Abortions late in pregnancy are rare in the United States. According to the Centers for Disease Control and Prevention, 91 percent of abortions take place at 13 weeks of gestation or earlier, and only 1.3 percent are performed after 21 weeks of gestation. In 2015, that meant about 580,000 early abortions versus 8,300 late abortions. (Most states restrict abortions after 20 to 24 weeks of gestation, in the second trimester.)
These late procedures are more expensive, more difficult to secure and come with higher risks for physical and emotional complications. While most Americans favor a right to abortion, support plummets when it comes to late abortions.
That has meant that while abortion opponents routinely try to turn the conversation to late abortions, abortion rights advocates often keep their focus on early, more accepted procedures. The debate about the new bills sought in multiple states proceeded along those lines, until the explosion of attention to Northam’s comments.
“This is not a debate about later term abortions,” said Laura McQuade, the president and CEO of Planned Parenthood New York City, when asked about the recently approved New York measure. She pointed out that the measure, signed into law by Gov. Andrew M. Cuomo (D), didn’t change the 24-week gestation period after which the rules tighten.
“This is part of an organized attempt to create fear in other places and chill the effects of passing legislation,” she said. “It is sexy for the right. They are trying to shut down other laws.”
But the New York measure does loosen the rules on later term abortions. It includes a section that allows abortions after 24 weeks when the “life or health” of the mother is threatened. The previous law barred the procedure unless the “life” of the mother was in jeopardy. The new measure also decriminalized abortions, moving the regulations from the criminal code to the health code.
“The scope and breadth of the new law is shocking to a lot of people,” said Kathleen Gallagher, the director of pro-life activities for the New York State Catholic Conference, who has fought against abortion bills in the state for 30 years.
“This is a direct result of the midterm elections,” Gallagher added. “I keep telling my people elections have consequences.”
The Virginia measure, too, changed the circumstances under which a late abortion could be sought. Current Virginia law allows one when the pregnancy “substantially or irredeemably” harms a mother’s “mental or physical health” as certified by three physicians.
The new bill requires only one doctor to sign off. And it lowers the threshold for the physician to approve the procedure by removing the words “substantially or irredeemably” from the law — giving the doctor significantly more leeway in determining whether the pregnancy would harm a woman mentally or physically.
The uproar over the Virginia legislation prompted state Del. Dawn M. Adams (D-Richmond) to issue a mea culpa to constituents as she withdrew her support for the bill. “I made a mistake, and all I know to do is to admit it, tell the truth, and let the chips fall where they may,” she said.
The new attention to abortion could play out not only in the 2020 general election, but also in the primaries. Even among Democratic voters, support for legal abortion in the last three months of a pregnancy drops to fewer than 1 in 5, according to a Gallup poll published in June.
The party’s presidential candidates said they have not been asked much about the issue so far. Some, asked about whether there should be any restrictions on late-term abortions, skipped over the specifics and offered broad support for women to make reproductive decisions without interference from the government.
“There is zero place for politicians to be involved in these very complicated medical decisions, and they should only be made between a woman and her doctor — period, full stop,” Sen. Kirsten Gillibrand (D-N.Y.) said in an email.
Others sought to pivot to the more solid ground of economic disparities. Andrew Yang, an entrepreneur seeking the nomination, said women should make decisions about their own health and added: “If we had more economic security in this country, then there would be fewer women who would feel that they need to get an abortion.”
Marianne Williamson, an author who is one of the lesser-known Democratic candidates, said she favors abortion rights, but believes allowing a late-term abortion only to address the woman’s mental health would be too permissive.
“Mental health, that would be problematic for me,” Williamson said. “Because mental health can be so broadly defined.”
Abortion rights advocates hope the current focus on late-term abortions will, at minimum, place more attention on the women who seek them.
“We’ve talked a lot about legislators and doctors involved in care but we haven’t talked enough about the women that are going through this and what their take is,” said Jennifer Conti, an obstetrician-gynecologist in San Francisco and a fellow at Physicians for Reproductive Health, which supports abortion rights.