Months after state lawmakers around the country approved some of the most restrictive limits on abortion seen in decades, some states want to push still further.
Leading the way is Ohio, where Republicans are contemplating banning nearly all abortions from the time of conception, with no exceptions for rape or incest, and the highly unusual step of allowing women who have abortions to be prosecuted for murder.
Especially contentious in the Ohio proposal is a provision that would direct doctors treating women with a sometimes life-threatening condition when a fertilized egg implants outside of the uterus to try to “reimplant an ectopic pregnancy into the woman’s uterus.”
After last spring’s wave of state-led campaigns to limit abortions, a second surge is expected in early 2020 as legislators in Republican-dominated states begin new lawmaking sessions. Tennessee, Nebraska, Ohio, South Carolina and Idaho could all quickly approve bills next year that would in effect ban abortion. With a presidential election looming, the issue will be used by Democrats and Republicans alike to raise campaign funds and to spur election turnout.
Yet the tactics employed by some states have also opened an unexpected rift among abortion opponents over whether the new laws will actually harm efforts to overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
Conservative lawmakers and their allies who want the toughest abortion limits say they no longer have patience for incremental restrictions tailored to reach the Supreme Court.
“The time for regulating evil and compromise is over,” Candice Keller, a Republican in Ohio’s House of Representatives and a sponsor of the new bill there, said in a statement. “The time has come to abolish abortion in its entirety and recognize that each individual has the inviolable and inalienable right to life.”
Abortion rights advocates said they viewed the new bills as alarming. “This legislation demonstrates the lengths Ohio politicians are willing to go to endanger pregnant people in the name of their dangerous anti-abortion agenda, which includes criminalizing pregnant people and doctors,” said Lauren Blauvelt-Copelin, vice president of government affairs and public advocacy for Planned Parenthood Advocates of Ohio.
In fact, some longstanding anti-abortion groups say they believe that the Supreme Court is more likely to take up cases involving laws that seek tempered changes in abortion access, not outright bans that directly challenge Roe.
The increasingly restrictive legislation “makes us look foolish,” James Bopp, general counsel for the National Right to Life, an anti-abortion organization, said at a recent legislative hearing in Tennessee about a bill that would essentially ban abortion in that state. He said the new tide of legislation — though aimed at forcing a reconsideration of abortion by a remade Supreme Court — is unlikely either to pass legal muster at lower court levels or to be heard in the nation’s highest court.
But early this year, after Justice Brett M. Kavanaugh, a conservative jurist, joined the Supreme Court, Republican state legislators began to rush through measures that upended years of anti-abortion strategy.
Those measures were intentionally in conflict with Roe, and conservative activists who backed them said the goal was to force the Supreme Court to re-evaluate — and ultimately overturn — the monumental decision.
Mainstream anti-abortion groups did not publicly object to the approach, and in some cases backed the measures. But that support has shifted in recent months as restrictive abortion bills made their way through legislatures.
“Some sponsors of these bills may be motivated by the belief that they present an ‘ideal test case’ for the Supreme Court,” Clarke D. Forsythe, counsel at Americans United for Life, wrote in an analysis of the laws. “Others think that an abortion prohibition will ‘force’ the Court to readdress Roe v. Wade. Neither of these assumptions is accurate. In fact, a prohibition on early abortions may be the type of law least likely to attract Supreme Court review.”
Organizations that favor abortion rights, which have had their own setbacks and struggles, say the infighting among anti-abortion proponents has been surprisingly public.
“The divide is much more of an issue in 2019 than we have seen in decades,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, which supports abortion rights. “The ‘go slow’ approach wants to ban abortion as well,” she said, adding, “they just think it is more advantageous to pass restriction after restriction.”
Some states, including Ohio, have already passed so many incremental limits to abortion, Ms. Nash said, that there is little left to do aside from directly banning abortion. “The states that have pursued the restrictions strategy have essentially walked themselves into an abortion ban,” she said.
In Tennessee, a fight among anti-abortion groups about how far to go with legislation has long been brewing.
Tennessee Right to Life, one of the state’s most prominent anti-abortion groups, has formed a coalition with Randy McNally, the state’s Republican lieutenant governor, and the state’s Catholic bishops in opposing the most restrictive of the state’s recent abortion proposals, including a measure that would in effect ban abortion except if the woman’s health was at significant risk.
But Janice Bowling, a Republican state senator, said that slower-moving strategies had failed and that clearer, firmer measures were needed. “The current approach we are taking — a lot of infants are going to die and a lot of people are getting impatient,” said Ms. Bowling, one of the sponsors of the bill.
In South Carolina, conservative and moderate Republicans have spent months arguing about strategy. Now lawmakers are considering a bill that would prohibit abortions after six weeks of pregnancy, before many women know they are pregnant.
But it is Ohio’s measure, introduced in November, that has drawn the most attention for its sweeping limits to abortion.
The bill has been co-sponsored by 19 members of the state’s 99-member House of Representatives and must also pass the State Senate, which is similarly dominated by Republicans. Gov. Mike DeWine, a Republican, has not taken a public position but has spoken frequently about his opposition to abortion.
The bill, which could be debated as early as January, has much in common with the legislation Alabama approved last spring. That bill had been regarded as the most restrictive abortion legislation in decades, and it has since been enjoined by a federal court.
The Ohio measure, which is 723 pages long, states that doctors must take “all possible steps to preserve the life of the unborn child, while preserving the life of the woman. Such steps include, if applicable, attempting to reimplant an ectopic pregnancy into the woman’s uterus.”
Some doctors have dismissed as “science fiction” the medical feasibility of such steps.
“We have no evidence that an ectopic pregnancy may be transplanted into the uterus and continue to develop normally,” said Daniel Grossman, a professor of obstetrics and gynecology at the University of California, San Francisco. “The process of implantation is complex — it’s not just like a plant. It’s not yet possible to disrupt an implanted pregnancy and transplant it from one location to another.”
Dr. Grossman said that it was reasonable to conduct more research on the matter, but that it was “completely unreasonable to advocate for this unproven treatment on humans.”
Doctors say ectopic pregnancies, which can cause a woman’s fallopian tube to burst open, often lead to life-threatening bleeding.
Ohio Right to Life, the state’s prominent anti-abortion organization, said it had not been involved in writing the legislation and was not ready to take a position on the measure. Generally, the group has supported an incremental approach to overturning Roe.
“We learned of it the same time everyone else did,” Mike Gonidakis, president of Ohio Right to Life, said of the legislation. “Being over 700 pages long, we are going through the entire legislation presently.”
Mr. Gonidakis said he was lobbying for several other abortion limits that Ohio lawmakers were considering, including legislation that would require doctors who provide medical abortions to tell pregnant women that abortion drugs can be reversed. That message is disputed by obstetricians, who question its validity and safety.