Opinion: The abortion bans taking over post-Roe America with costly consequences (Part 2)

Since Roe v. Wade was overturned in June, 12 of the 50 states in the U.S. have enacted total abortion bans. These bans will leave millions of people who are pregnant, or could get pregnant, without reproductive autonomy or full access to health care.

Out of these 12 states, nine of them are in the South or Southeast, creating parts of the country where abortions are not only banned in a particular state, but in the nearby surrounding states as well. The other three states are in the Midwest and Northwest.

We previously examined six of the 12 states that have initiated complete or near-total abortion bans. Here, we’ll take a look at the bans in the other six states:

Missouri

Missouri is one of several states with a “trigger law,” or an existing law that became enforceable once the Supreme Court overturned Roe v. Wade. So, literally minutes after the Dobbs v. Jackson opinion was released on June 24, 2022, all abortions “except in the case of medical emergency” became prohibited in the entire state. The law provides no further guidance on what “medical emergency” might mean, and does not explicitly outline exceptions for rape or incest.

Any medical provider who performs an abortion outside of the medical exception could be found guilty of a class B felony, which could result in prison sentences between 5 and 15 years, in addition to potential suspension or revocation of their medical license. If brought to court over an abortion over a medical emergency, providers are faced with the burden of arguing an affirmative defense that they performed the abortion for legal reasons — but the mere action of providing abortion care could be enough reason for a state to prosecute any involved parties.

This will inevitability dissuade providers to perform abortions in many cases so they won’t have to prove an emergency took place, months after the fact, in front of non-experts at a trial. This essentially functions as a blanket ban for the millions of residents within Missouri.

Oklahoma

Oklahoma has some of the most strict rules in place to dissuade doctors from performing abortions and medical patients from even asking for information related to abortion care.

After a draft of the Dobbs v. Jackson opinion leaked in May, Oklahoma’s hyper-conservative governor Kevin Stitt signed what was considered the strictest ban on abortion in the United States at the time. The law barred abortions except to save the life of the pregnant person or following incest or rape, as long as those allegations are reported to the police.

Under Roe, Oklahoma’s ban would have likely been declared unconstitutional upon legal challenge, but with the basis for legal federal protection for abortions coming to an end, it didn’t matter. As of now, abortion is banned in Oklahoma from the point of fertilization, and the rape and incest exceptions have been dropped since Roe was overturned.

Oklahoma’s latest abortion ban law has a similar “bounty-hunter” law that Texas first passed in 2021, allowing any private citizen to sue an abortion provider or anyone they claim has assisted someone in obtaining an abortion, which could result in at least $10,000 in damages if a judgement is granted in their favor.

Oklahoma has a separate century-old “trigger law” that deems it a felony for anyone who “advises” or provides someone assistance in obtaining an abortion. That could include a family member, a friend, a classmate, a librarian, or even an Uber driver, University of Oklahoma constitutional law professor Joseph Thai explained to the Associated Press. Further, Thai believes that companies that offer to pay for abortions outside of the state could be criminally liable under the ban, a position explicitly supported by GOP state senator Greg Treat, author of the state’s trigger law.

South Dakota

South Dakota now has a complete ban on abortion with no exceptions for rape or incest — but it was so difficult for abortion providers to practice there prior to Dobbs that it has effectively become impossible to obtain abortion care in the state for quite some time. There was only one clinic throughout the state for years, staffed only by doctors who traveled — often by flight — from other states, as there were no longer any practicing providers within the state. Then, during the height of the COVID-19 pandemic, abortions stopped entirely when it wasn’t safe enough to fly doctors in just to do the procedures.

Given the already fragile nature of access in the state, Planned Parenthood had stopped scheduling abortions in South Dakota even before the Dobbs decision came down.  The state’s GOP governor, Kristi Noem, is strictly anti-choice. In response to the story of a ten-year-old rape victim traveling from Ohio to Indiana to obtain an abortion after Roe fell, Noem suggested that a ten-year-old in a similar situation in South Dakota might be able to obtain an abortion there under the only current exception permissible in the state, which is for life-threatening emergencies.

Since anti-choice politicians don’t want to admit there is an age where it is inherently unsafe for a child to give birth — at which point it would become inherently necessary for abortion care to be available — there is no standard for where the line is across the country.

Tennessee

The right to obtain an abortion didn’t end immediately after the Dobbs decision in late June. That’s because the state’s “trigger law” with a built-in 30-day countdown that, along with other procedural requirements, meant the ban didn’t go into effect until August 25, 2022. Now, the state has a ban with no exceptions for rape or incest.

For the first time in a century, the ban also removed language from the state’s laws that said abortion was permissible to “preserve the life of a pregnant woman.” Now, the law instead says only that a provider may defend themselves against criminal charges after performing an abortion if they can show the abortion “was necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.”

This is a significant change. It shifts from making abortion inherently permissible when necessary to preserve someone’s life to inherently impermissible no matter what, unless a doctor can prove otherwise only after facing criminal charges. As with other states that have made this shift, it puts all the risk on an individual provider, and there’s simply no way that doesn’t then form part of the calculus of a doctor’s thinking during an emergency.

Texas

It seems strange to talk about Texas having a complete ban post-Dobbs. The state’s so-called “heartbeat ban,” combined with their “bounty hunter” law, has functionally made abortion unavailable in the state since September 1, 2021. Nevertheless, Texas went to federal court to ensure that even the most meager protections in their laws can’t be applied in the state.

The Biden administration issued guidance determining that the Emergency Medical Treatment and Labor Act (EMTALA) supersedes Texas law and protects doctors who perform abortions when the life or health of a pregnant person was at risk in an emergency setting. Texas successfully sued to block that guidance, getting a very friendly reading from U.S. District Court Judge James Wesley Hendrix, a Trump appointee.

Hendrix determined that the federal government’s guidance to protect the life or health of a pregnant person “goes well beyond” the text of the federal law. Now people in Texas can’t count on doctors to provide all the care humanly available to them in an emergency, even when their life is seriously at risk.

Wisconsin

Wisconsin is another state that had a “trigger law,” one dating back to 1849. However, the state also has a law from 1985 allowing abortions up to the point when a fetus can survive outside the womb, so there’s now litigation between different branches of the state’s government over them. The state’s Democratic governor, Tony Evers, and attorney general, Josh Kaul, filed a lawsuit arguing that the 1985 law supersedes the trigger law, rendering it unenforceable. The GOP-controlled state legislature have pushed for the suit be thrown out.

At least for now, the 1849 “trigger law” ban is in effect, so abortions aren’t legally happening in Wisconsin. Providers from the state are mostly going to nearby Illinois to help provide abortions there. One of the clinics in Illinois is along the border with Wisconsin, placed strategically for scenarios where Roe was no longer in effect or access in Wisconsin were impeded.

Come November, some Wisconsin cities and counties will be able to vote on whether the 1849 ban should be repealed. These referendums wouldn’t have the force of law, but the organizers hope to send a message to the legislature showing that support for abortion in the state is high.

Wisconsin is severely gerrymandered, however, and the new GOP-driven district borders may give Republicans a veto-proof majority after 2022. It’s tough to imagine that non-binding municipal initiatives will have much sway with Republicans in that scenario. So, Wisconsin residents will likely need to continue to cross state lines to Illinois and hope the clinics there can serve them for the foreseeable future.