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How U.S. states whittle away at legalized abortion

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Three days after the Arkansas House of Representatives passed the Human Heartbeat Protection Act, Jason Rapert, the freshman state senator who had sponsored the bill, took to Twitter to boast that the new law "stands to save thousands of lives."

Its chances of doing so, however, depend first on surviving a court challenge. The law, which passed on March 6, bans abortions after 12 weeks of pregnancy, the age by which an ultrasound examination usually can detect a fetal heartbeat, except to save the life of the mother or in the case of pregnancies resulting from rape or incest.

This directly contravenes the Supreme Court's 1973 ruling in Roe v. Wade, which held that the right to privacy, which earlier it had found in the Fourteenth Amendment and "in the penumbras of the Bill of Rights," effectively defined the date at which a fetus can survive outside its mother as the point at which states have the power to ban abortions outright. Gov. Mike Beebe of Arkansas vetoed the bill for exactly this reason, though the legislature overrode his veto. The American Civil Liberties Union, its Arkansas chapter and the Center for Reproductive Rights, an abortion-rights advocacy group, have vowed to file suit shortly.

Even if that lawsuit kills the law, women in Arkansas still will find obtaining an abortion difficult. The state already bans abortions after 20 weeks, and it has only one abortion clinic.

Nor will neighbouring states offer them much help. Louisiana and Oklahoma also ban abortions after 20 weeks. Mississippi has only a single clinic, which is at risk of being shut down by a law requiring abortionists to have admitting privileges at local hospitals. "Personhood" bills have been introduced in Oklahoma and Mississippi that would extend legal protection to zygotes. Texas is mulling both a 20-week ban and an admitting-privileges bill like Mississippi's.

All of Arkansas's neighbours allow health-care providers to refuse to take part in an abortion. All of them also limit public funding of abortions to cases of rape, incest and danger to the mother's health.

Farther afield in the South, the story is much the same. Late last year, Gov. Bob McDonnell of Virginia approved regulations requiring abortion clinics to meet the same building requirements as hospitals. Abortion-rights proponents argue that such measures have less to do with safety than with regulating abortion clinics out of business. Alabama looks set to enact a law that combines Mississippi's admitting-privileges statute with regulatory requirements similar to Virginia's.

The Guttmacher Institute, an abortion-rights advocacy group, classifies states as hostile, "middle ground" or supportive of abortion rights. In 2000, only a handful of southern states qualified as hostile. Eleven years later, their map shows a solid wall of hostility from Virginia down to Florida and across to Texas and Oklahoma.

Not all these laws will survive. Mississippi's voters rejected a personhood amendment in 2011, and the 20-week bans may prove unconstitutional. The point of fetal viability varies, but the Supreme Court defined it in 1992 as being at "23 to 24 weeks." Last week, a court in Idaho struck down that state's 20-week ban as unconstitutional, and Georgia's is tied up in court.

As more laws go before more courts, however, the chance of one of them getting a favourable decision rises.

"The new paradigm of the pro-life movement," says Dan Becker, president of Georgia Right-to-Life, "is all about introducing tension into the law... We have different courts ruling in different ways, which is a surefire way to challenge Roe."

Republished from the Winnipeg Free Press print edition March 18, 2013 A9

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