On Tuesday afternoon, Arkansas Gov. Asa Hutchinson (R) signed into law a near-total ban on abortion. It is an alarming development, even for the most seasoned observers of the battle for abortion rights in this country. Here's why: This new law is part of an accelerating trend in states to ban abortion entirely or very early in pregnancy--a further escalation of decades-long efforts to eliminate legal access to abortion state-by-state.
Extreme as it is, the Arkansas abortion ban does not come as a surprise. In just four years, then-President Trump confirmed more than 200 federal judges--nearly three in 10 of all active federal judges in the United States and three of the nine justices on the U.S. Supreme Court. As the courts have become more conservative, state legislatures have focused more attention on total and early abortion bans, with the hope that eventually the Supreme Court will allow such sweeping laws to take effect.
The court has already expressed that it welcomes more challenges to abortion rights. With dozens of cases in litigation there are many opportunities for the court to start weakening abortion rights before taking a case that would allow enforcement of early and total abortion bans.
The appointment of Justice Brett Kavanaugh in the fall of 2018 kickstarted the 2019 state legislative sessions, where six states adopted measures that ban abortion as early as six weeks of pregnancy--before most people even know they are pregnant--and Alabama enacted a total ban on abortion. The confirmation of Justice Amy Coney Barrett in October 2020 cemented a 6-3 conservative and antiabortion majority and is having a similar impact.
Adopting nationwide protections would dramatically decrease the number of legal barriers to abortion that patients face and set the stage for increasing access to care.
In addition to the Arkansas abortion ban, South Carolina enacted a ban on abortion at six weeks of pregnancy in February. Another 15 states have seen similar legislation introduced so far this year.
None of the total or six-week abortion bans that have been signed into law are in effect. But the lawmakers who pushed for them never expected them to take effect immediately. Rather, the bans serve a longer-term strategy, where the goal is to test the limits of what the Supreme Court's new conservative majority may allow, and to lay the groundwork for a day when federal constitutional protections for abortion are weakened or eliminated entirely.
Should that happen, total and early abortion bans could go into effect in 15 states. Twelve of these states have enacted total or early abortion bansin recent years and another three have so-called trigger bans--abortion bans set to take effect if the Supreme Court rules the U.S. constitution no longer protects abortion rights.
Practically speaking there is little difference between a total abortion ban and an abortion ban as early as six weeks. At six weeks, most people are unaware they are pregnant. For those few who do realize they are pregnant, they would have to decide quickly that they are seeking an abortion and then navigate a host of legal, financial and logistical hoops to access care before the legal cutoff--hoops that are designed to be daunting or even impossible to clear.
Given this political and judicial climate, it is not surprising to see Arkansas adopt a total abortion ban. It is already one of six states that Guttmacher, where I serve as a principal policy associate, considers to be "Very Hostile" to abortion rights. Including this new ban, our internal tracking shows that Arkansas has enacted an unconscionable 60 abortion restrictions since 1973. Among these restrictions are intentionally burdensome and unnecessary clinic regulations, a 72-hour waiting period and counseling requirements that require patients to make at least two clinic visits for their abortion, parental consent before a young person can obtain an abortion and a ban on coverage of abortion for those insured through Medicaid.
As a result, access to abortion care in Arkansas is already very limited, with only two clinics in the entire state serving 585,000 women of reproductive age. And it is those with the fewest resources and already facing a steep barrier to health care--including people of color, young people and those living in rural areas--who bear the brunt of these restrictions. Should the new abortion ban ever go into effect, patients would be forced to leave the state and face an average (median) one-way driving distance to an abortion clinic of 128 miles.
Despite the dangers of new state laws and harmful court decisions, the news is not all grim. State lawmakers supportive of abortion rights have also stepped up over the past several years to enact laws that protect abortion rights and access. Thanks to these efforts, 14 states and Washington, D.C., have these protections in place. Notably, these states are primarily in the Northeast and the West Coast, leaving most of the middle of the country unprotected.
There is also the potential for progress at the federal level. The Biden administration should review restrictions on medication abortion, protect abortion providers and patients from violence and rescind regulations that expanded exemptions from providing or facilitating care based on religious or moral grounds for abortion and other reproductive health services.
More so, Congress should adopt the Women's Health Protection Act that would establish federal statutory rights for providers to deliver and patients to receive abortion care without medically unnecessary restrictions. Adopting nationwide protections would dramatically decrease the number of legal barriers to abortion that patients face and set the stage for increasing access to care, especially when combined with other urgent priorities like repealing the harmful Hyde Amendment that blocks abortion coverage for many people insured through Medicaid.
