This week, two conservative states moved forward with what could become the most severe abortion bans in the country.
And South Carolina’s state Senate is considering a bill outlawing virtually all abortions unless a woman has been the victim of rape or incest or is facing a life-threatening complication.
Neither ban is likely to go into effect without facing a legal challenge — but players on both sides of the abortion debate say that is largely the point. These legal challenges could work their way up to the Supreme Court, setting up a showdown over Roe v. Wade, the landmark case that affirmed a woman’s legal right to abortion until fetal viability.
“I certainly think their intent is to be a direct challenge to Roe v. Wade,” Heather Shumaker, senior counsel for reproductive rights and health at the National Women’s Law Center, told HuffPost.
Shumaker believes the near-total bans signal a strategic shift on the part of anti-abortion lawmakers, who have for years chipped away at abortion access through targeted regulation of abortion providers or “TRAP” laws.
Those laws imposed strict restrictions on abortion clinics around the country under the guise of promoting women’s health, forcing many to close. But the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt — which struck down two Texas restrictions that would have closed numerous clinics — appears to have dampened enthusiasm for the TRAP strategy in conservative legislatures across the country.
Now, they have a bigger, longer-term goal of taking down Roe v. Wade.
“Given that there has been a confirmation of a conservative judge on the Supreme Court, and there are so many Trump nominees to other federal courts, I think the anti-abortion movement really feels emboldened to pursue unconstitutional abortion bans,” Shumaker said.
I think the anti-abortion movement really feels emboldened to pursue unconstitutional abortion bans. Heather Shumaker, National Women’s Law Center
In recent years, states like Arkansas and North Dakota have passed fetal heartbeat bans similar to the one Iowa Gov. Kim Reynolds (R) just signed, though both have been blocked in court.
Legislators in Iowa, as well as those pushing for the South Carolina ban, have not hidden their intentions. “It’s designed to give the court an opportunity to revisit Roe v. Wade,” said South Carolina Senate Majority Leader Shane Massey (R).
“It is time for the Supreme Court to weigh in on the issue of life,” echoed Iowa state Rep. Shannon Lundgren (R).
But not all abortion foes agree with the strategy, fearing the Supreme Court would not only uphold — but strengthen — the legal precedents established by Roe v. Wade.
“The Supreme Court, as it is constituted right now, may not be ready to overturn Roe,” James Bopp, the chief counsel for the National Right to Life Committee, told Mother Jones in 2015.
Reproductive rights advocates say the new potential bans also signal that conservative states are not afraid of being seen as extreme on abortion.
Elizabeth Nash, senior state issues manager with the pro-choice Guttmacher Institute, described what she sees as a kind of race to see which state can be the most restrictive.
“I see a couple [of] reasons [why] legislators want to pursue these bills,” Nash wrote in an e-mail to HuffPost. “One is to confirm their conservative credentials, or be the most hostile state to abortion rights.”