The ongoing war on abortion access
On North Carolina's new restrictions and what counts as "common sense"
(this is a longer one. I haven’t written in a while. :))
This past Tuesday night, North Carolina's Republican controlled General Assembly voted to override Governor Roy Cooper's veto of a bill that imposes significant new restrictions on abortion access in the state.
The threshold for veto overrides in North Carolina is sixty percent. Republicans have exactly that margin in the state Senate, 30-20, and the override vote there was a straight party line affair. In the House, Republicans had been one seat short of a super majority as of election night 2022. But Tricia Cotham, who'd run as a quite conventional, pro-choice Democrat when she was elected last fall, switched her party affiliation earlier this year and voted with the Republican majority this week. With her switch, House Republicans had the votes they needed, with none to spare.
In other words, there was no margin for error. I mention this because the new law was crafted by the GOP leadership with these political realities in mind. The result is that North Carolina’s abortion restrictions did not go as far as the draconian bans other GOP-controlled states have imposed in the wake of the overturning of Roe last year, including Texas, Alabama, Mississippi, Arkansas, Tennessee, Kentucky and elsewhere. North Carolina's ban begins at 12 weeks, rather than six or zero. It also includes exceptions for rape or incest (which many of the most draconian laws do not), as well as threats to the life of the mother and in the case of significant fetal abnormalities.
But its new restrictions are onerous. It sharply constrains where abortions can be performed, particularly after 12 weeks, in ways that are medically unnecessary, but will make access to care much more difficult.1 It now bars consultations by telehealth to initiate the state's newly expanded 72-hour waiting period. The result is that women must meet with a health care provider in person before they can initiate that waiting period. Indeed, they must have three such consultations (or four, based on an ambiguity in the law) for medication abortions, another medically irrelevant requirement. Jessica Valenti, who tirelessly tracks the GOP’s war on abortion access at her Abortion Every Day Substack, has described the clear thrust of the new law as intended to ensure that “in the first weeks of a woman’s pregnancy…she will have to fight through as many humiliating and unnecessary steps as possible in order to maybe get the care Republicans say they’ve graciously ‘allowed.’”
As has always been true, the brunt of these new restrictions will fall disproportionately on those of fewer means, women who can’t take time off from work, let alone travel multiple times from out of state to seek an abortion. Indeed, that’s a key goal of these new provisions, since North Carolina has become a critical haven for those living in more restrictive neighboring states who are trying to access abortion care.
In North Carolina and nationally, advocates of these new restrictions have suddenly become big fans of European social policy, or at least a particular take on it, which I’ll discuss further below. Arguments before the Supreme Court in the Dobbs case included amicus briefs on both sides from European legal and other experts about how US abortion laws stack up against those across the European continent. Senator Lindsay Graham, who favors national legislation that would ban most abortions after fifteen weeks, is one such newly minted and vocal advocate for conforming American social policy to that of Europe. By contrast, Senator Graham and other right-wingers have argued, liberal permissiveness on the issue puts us on a par with North Korea where, Graham insists, abortions are available on demand throughout the pregnancy.
It's important to take on these talking points because, as Republicans themselves are very well aware, their position on abortion is deeply unpopular and has begun to cause them significant electoral damage. It's clear that the crafters of the North Carolina legislature were mindful of this. And as the next presidential election gets under way in earnest, candidates like Donald Trump are going to try very hard to obfuscate Republican extremism on the issue.
So, a few points. First, Graham's proposed new law (which isn't viable now, but could be if Republicans win the presidency and both houses of Congress next year) would not override the most draconian state bans. Its only effect would be to restrict more liberal abortion laws in California, New York and elsewhere. In other words, whereas most European countries allow abortion through about 12-14 weeks, that would not be the norm in Lindsay Graham's America. That would be the upper bound, with tens of millions of people living in states that are far more restrictive than almost any European country.
In addition, the landscape in most of Europe for what counts as an allowable exception after the period of general permissibility is very different from what has emerged from America's abortion restrictions. In France, for example, legislation last year increased the period of so-called abortion on demand from 12 to 14 weeks. And what about after fourteen weeks? Exceptions exist in several cases, including those where the pregnancy was caused by rape, in the case of the endangerment of the life of the mother, or because of mental well being. That last is significant because, of course, it goes well beyond any allowable exception among the draconian American states and certainly will not be a feature of Graham's proposed legislation. Mental health exceptions and other life circumstances, it’s important to emphasize, are typically potentially allowable in abortion laws throughout Europe, including in Germany, whose abortion laws are among the most restrictive (though, like much of Europe, they’ve been liberalizing and are likely to continue to do so).
Also notable is who typically pays for an abortion in France, and most of Europe - the state. In France, almost abortion related services are free up to fourteen weeks, covered by the National health system. And in covered circumstances, they're also paid for beyond fourteen weeks. There’s some variability in Europe for abortions that fall outside the permitted circumstances but the norm is that abortion services are largely paid for by publicly mandated insurance.2
In other words, while the Lindsay Grahams of the world are trying, in this one case, to say that they are pro-European, the context in which abortion law operates in most of Europe is fundamentally at odds from what Graham and his ilk envision. In the most restrictive American states, Medicaid is barred from providing abortion services except in very limited circumstances. And in about two dozen states, the law even prevents private insurers from covering abortion-related expenses, again except in very limited circumstances. The European social welfare approach this ain't.
The result, as the New York Times explained last year in comparing the state of abortion access in the United States to that of Europe is that Europe’s laws may look more restrictive on paper (this was before the overturning of Roe), but are often less so in practice. This was also the thrust of the amicus brief by European legal scholars who supported leaving Roe in place.
Finally, though it's become a common talking point among pro-restrictionists, the North Korea point appears both to be factually wrong and is, in any event, conceptually absurd.
On the facts, according to the World Health Organization, in 2015, the North Korean government banned any medical provider from performing an abortion, because of concerns about the country's low birth rates. Radio Free Asia also reported that development. Almost everyone agrees that it's hard to know what exactly is going on in North Korea. But as far as I can tell, no one on the restrictionist side has made any effort to fact check this. There is a Family Research Council report that appears to be a source for the claim made by Graham, Ron DeSantis and others, but that report only links to an undated entry on a website that says it's hard to know what's going on in North Korea, but it appears abortions are legal until the third trimester. Washington Post fact checkers in 2017 said North Korea generally allowed abortions, but they cited a 2014 UN report, before the reported 2015 ban.
In any event, the purported parallel is nonsense. The most widely reported fact related to abortion in North Korea is that authorities have repeatedly used forced abortions on imprisoned women as punishment for those attempting to cross the Korean border. They have done so in the context of other forms of mistreatment and torture. In other words, the last thing in the world North Korea gives a shit about is bodily autonomy. It's at least as appropriate to say that those who believe women should be forced to carry non-viable fetuses to term under the threat of criminal conviction, even at potentially fatal risk to themselves, is the proper parallel to North Koreans’ view of women’s bodily autonomy.
So, a few points in conclusion.
1. It has been true over the past fifty years, that the United States has generally legalized abortion for a longer period of time than most other countries, including Europe.
2. However, since the repeal of Roe, many US states are now *far* more restrictive than all but a small handful of countries in Europe (like Poland).
3. Furthermore, as discussed above, what counts as acceptable exceptions in much of Europe, including mental health and socio-economic factors, are not allowable in much of the United States (and surely would not be if Lindsay Graham's national law became a reality).
4. Likewise, the costs of abortion care are far more likely to be borne by individuals in the United States, and far more likely to be covered in Europe by state-mandated health insurance.
5. Point four has obvious implications for the health and well-being of less well off Americans seeking abortions, despite the GOP’s pretense to be the party of the working man (and woman).
If a Republican wins the governorship in North Carolina next year (about a 50-50 proposition right now), count on a newly emboldened GOP to try to jettison their 12-week law in favor of a worse one. So, don’t be fooled by their “commonsense” approach. That will have outlived its usefulness as soon as Republicans believe they have the votes to do otherwise.
Indeed, while the drafters of the North Carolina law say they consulted with “medical experts,” the new law is opposed by every major state and national medical association.
The North Carolina law included some fairly meager provisions for women’s health, at least partly in order to justify calling the law a women’s health act, though much of the allocated money is intended to make it easier for women to give up newborn babies for adoption. Less well off women seeking abortion care will still largely be left to fend for themselves.