Republican State Lawmakers Split Over Anti-Abortion Strategy | KCUR

Republican State Lawmakers Split Over Anti-Abortion Strategy

Apr 12, 2019
Originally published on April 15, 2019 5:11 pm

The new anti-abortion tilt of the U.S. Supreme Court has inspired some states to further restrict the procedure during the first trimester of pregnancy and move to outlaw abortion entirely if Roe v. Wade ever falls. But the rush to regulate has exposed division among groups and lawmakers who consider themselves staunch abortion opponents.

On Thursday, Ohio became the latest state to ban abortions after a fetal heartbeat can be detected. For a long time, Ohio Right to Life supported a more gradual approach to restrict the procedure and deemed what's come to be called a "heartbeat bill" too radical — until this year. Restricting abortions after a fetal heartbeat can be detected basically bans the procedure after six weeks' gestation — before many women know they're pregnant.

"We see the Court as being much more favorable to pro-life legislation than it has been in a generation," spokeswoman Jamieson Gordon says. "So we figured this would be a good time to pursue the heartbeat bill as the next step in our incremental approach to end abortion-on-demand."

The Ohio law contains no exception for pregnancies that are the result of rape or incest; it does have an exception for the life of the mother.

Some say the rush to pass these bills is about lawmakers competing to get their particular state's law before the Supreme Court. The state that helped overturn Roe v. Wade would go down in history.

More than 250 bills restricting abortions have been filed in 41 states this year, according to the Guttmacher Institute, a reproductive rights research and advocacy group.

"After the appointment of Justice [Brett] Kavanaugh, there really is just an environment in state legislatures to roll back abortion rights. And so we're seeing these bans just fly through," says Elizabeth Nash, who monitors state laws at Guttmacher.

But the speed of passage of some of these laws masks divisions about strategy and commitment to the cause within the anti-abortion movement.

Tennessee infighting over heartbeat bill

In Tennessee, for instance, there's a philosophical split between pragmatists and idealists.

A heartbeat bill in the state has had high-profile support, including from Tennessee's new governor. But the Republican attorney general warned that such a law would be difficult to defend in court. And several Republicans, swayed by that logic, voted no on the bill.

"This is an issue that is extremely important to me. It's the reason I got into politics many years ago," Republican state Rep. Bill Dunn said as the House approved the measure over his objection earlier this year. Dunn says he wants to stop abortion, but that will require strategy. He points out that no heartbeat bill has ever been enforced. And recent laws in Iowa and Kentucky have been immediately blocked in court. The same is expected for Ohio.

"No. 1, it'll probably never save a life if we go by what's happened in the past," Dunn argued on the Tennessee House floor.

But it's money that ultimately stopped the heartbeat bill this year in Tennessee (it stalled in committee this week, though the state's Senate Judiciary Committee agreed to review the bill this summer).

Senate Speaker Randy McNally is anti-abortion but says he has no interest in wasting tax dollars to make a point.

Even worse, in the view of Republicans who voted against the heartbeat bill, the state could end up paying the legal fees for groups that defend abortion.

"That is a big concern," McNally says. "We don't want to put money in their pockets."

The last time Tennessee had a case that went to the U.S. Supreme Court, it cost roughly $1.9 million. The experience was enough to give a few anti-abortion crusaders some pause. They voted this week with Democrats for a one-year delay on a heartbeat bill, vowing to study the issue over the summer.

Name-calling in Oklahoma

Even if it doesn't result in a case that upends abortion law, heavily Republican legislatures like Oklahoma's want to be ready.

"If Roe v. Wade ever gets overturned, we won't be prepared," Republican Senate President Pro Tempore Greg Treat said while explaining his "trigger bill" at a committee hearing in February.

Treat's legislation, modeled after existing laws in a handful of states, would "trigger" a state ban on abortion and make it a felony if Roe were overturned. A handful of states, including Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota, already have trigger laws on the books.

Oklahoma has some of the strictest abortion laws in the nation, such as mandatory counseling and a 72-hour waiting period. But the most conservative anti-abortion activists in the state want more immediate action. So they targeted Treat and other self-described "pro-life" Republicans with protests, billboards and fliers, accusing them of not being anti-abortion enough.

"I've been called every name in the book these past few weeks," Treat says. "I've had my Christianity questioned. I've had a member of my own caucus hold a press conference and call me a hypocrite."

In response, Treat abandoned the trigger bill.

Now he is trying something else — an amendment to the Oklahoma Constitution that would reinforce that nothing in state law "secures or protects" the right to abortion. But that's still not anti-abortion enough for some.

"It's going to add on to that legacy that we have of death and just status quo pro-life policy that does nothing," says Republican state Sen. Joseph Silk.

Not far enough in Georgia

In Georgia, a heartbeat bill passed the Legislature but is paused at Gov. Brian Kemp's desk. Supporters of abortion rights don't want him to sign it, of course, but some anti-abortion activists aren't happy either.

"It really just does not go far enough in the protection of innocent human life," says Zemmie Fleck, the executive director of Georgia Right to Life. Fleck argues that certain exceptions in his state's bill — for abortions after rape or incest if the woman makes a police report — make it weak.

Kemp has until May 12 to sign or veto the measure.

Cost as no object in Kentucky

The American Civil Liberties Union in Kentucky sued the day after a heartbeat bill was signed into law by Gov. Matt Bevin. But even during his annual speech to the Kentucky Legislature in February, Bevin acknowledged his intent to challenge Roe v. Wade.

"Some of these will go all the way to the U.S. Supreme Court. But at the end of the day, we will prevail because we stand on the side of right and we stand on the side of life," Bevin said.

Kentucky has become accustomed to defending abortion restrictions in court. Currently, one law that makes it a felony for a doctor to perform a common abortion in the second trimester has been suspended indefinitely.

It is unclear how much it costs Kentucky to defend abortion laws that are immediately challenged. In an emailed statement, Bevin administration spokesman Woody Maglinger writes that the state is using in-house lawyers and hasn't hired outside counsel. He declines to provide a cost estimate on hours spent on these cases.

"It is impossible to place a price tag on human lives," Maglinger writes.


This story is part of a reporting partnership that includes NPR, Kaiser Health News and member stations. Blake Farmer is Nashville Public Radio's senior health care reporter, and Jackie Fortier is senior health care reporter for StateImpact Oklahoma. Marlene Harris-Taylor at WCPN in Cleveland, Lisa Gillespie at WFPL in Louisville, Ky., and Alex Olgin at WFAE in Charlotte, N.C., also contributed reporting.

: 4/15/19

In a previous Web version of this story, Oklahoma state Sen. Joseph Silk's first name was incorrectly given as Justin.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

ARI SHAPIRO, HOST:

Yesterday, Ohio became the sixth state to pass a bill outlawing abortions at the point a fetal heartbeat can be detected. Republicans in state capitols across the country seem eager to test the limits of Roe v. Wade now that conservative Justice Brett Kavanaugh is on the U.S. Supreme Court. But this surge of legislation also has led to some infighting among anti-abortion activists, as Blake Farmer of member station WPLN reports.

BLAKE FARMER, BYLINE: These so-called heartbeat bills would outlaw abortion after roughly six weeks, when a fetal heartbeat can be detected. That's before many women even know they're pregnant. As Tennessee lawmakers pushed forward a heartbeat bill this year, Planned Parenthood sent Skip Rudsenske (ph), a volunteer attorney, to the Statehouse to argue against it.

(SOUNDBITE OF ARCHIVED RECORDING)

SKIP RUDSENSKE: For the last 40 years since Roe v. Wade, every state law attempting to ban abortion prior to viability has been struck down.

FARMER: But several states are now ready to challenge decades of precedent. For a long time, Ohio Right to Life supported a gradual approach and felt a heartbeat bill was just too radical - until this year. Spokesperson Jamieson Gordon says they changed their minds after the appointment of Justice Brett Kavanaugh to the Supreme Court.

JAMIESON GORDON: And we see the court as being much more favorable in - to pro-life legislation than it has been in a generation. And so we figured this would be a good time to pursue the heartbeat bill as the next step in our incremental approach to end abortion on demand.

FARMER: Some say the rush to pass these bills is about lawmakers competing to get their particular state's law before the Supreme Court. The state that helps overturn Roe v. Wade would go down in history. But it's also exposed some fundamental disagreements within the anti-abortion movement about just how far to go. For example, Ohio's bill made no exceptions for cases of rape and incest. But the heartbeat bill that passed in Georgia did. Zemmie Fleck of Georgia Right to Life had a big problem with that.

ZEMMIE FLECK: It really just does not go far enough in the protection of the innocent human life.

FARMER: Georgia Right to Life withdrew support from the heartbeat legislation, preferring no bill rather than one Fleck sees as watered down.

FLECK: We do believe that more is possible, and more was possible.

FARMER: In many ways, this is a split between pragmatists and idealists, both of whom think of themselves as pro-life.

(SOUNDBITE OF ARCHIVED RECORDING)

TERRI LYNN WEAVER: By golly, Tennessee will join the ranks of those states who believe in the innocent.

FARMER: State Representative Terri Lynn Weaver was one of the most vocal backers as Tennessee considered its heartbeat bill this year. It's had high-profile support, including from the state's new governor. But the Republican attorney general warned it would be difficult to defend in court. And several Republicans listened to that and voted no for the heartbeat bill, like State Representative Bill Dunn.

(SOUNDBITE OF ARCHIVED RECORDING)

BILL DUNN: This is an issue that's extremely important to me. It's the reason I got into politics many years ago.

FARMER: Dunn says he wants to stop abortion, but it requires strategy. He points out that no heartbeat bill has ever really been enforced. And recent laws in Iowa and Kentucky have been immediately blocked in court.

(SOUNDBITE OF ARCHIVED RECORDING)

DUNN: Number one, it'll probably never save a life, if we go by what's happened in the past.

FARMER: But it's money that ultimately stopped the heartbeat bill this year in Tennessee. Senate Speaker Randy McNally says he's pro-life, too, but has no interest in wasting tax dollars to make a point. And even worse, the state could end up paying the legal fees for groups that defend abortion.

(SOUNDBITE OF ARCHIVED RECORDING)

RANDY MCNALLY: That is a big concern. We don't want to put money in their pockets.

FARMER: The last time Tennessee had a case that went to the U.S. Supreme Court, it cost roughly $2 million dollars. That case was about gay marriage, but the experience was enough to give a few anti-abortion crusaders some pause. They voted this week with Democrats for a one-year delay on a heartbeat bill. For NPR News, I'm Blake Farmer in Nashville.

SHAPIRO: This story is part of a partnership with NPR, WPLN and Kaiser Health News. Transcript provided by NPR, Copyright NPR.