Copy, Paste, Legislate

Published — June 20, 2019

For anti-abortion activists, success of ‘heartbeat’ bills was 10 years in the making

This photo taken June 5, 2012, outside the statehouse in Columbus, Ohio, shows a large balloon in support of the Heartbeat Bill. (AP Photo/Ann Sanner)

This story was published in partnership with USA TODAY and The Arizona Republic. 

Introduction

In spring 2019, a seemingly new legislative phenomenon caught national attention as it stormed through statehouses across the country. Bills that imposed new restrictions banning abortion as soon as a fetal heartbeat is detected sparked protests but sailed to passage in a half-dozen states.

For many who first learned about the so-called heartbeat bills in national headlines, the push seemed unprecedented. But it was the outcome of nearly 10 years of calculated effort, starting with a sample bill written in Ohio that was then copied over and over — like a viral internet post — and proposed 26 times before it finally gained traction, a USA TODAY/Arizona Republic analysis has found.

That analysis found efforts to limit abortion in a variety of ways have succeeded through the same copy-and-paste strategy, also known as “model” or “copycat” legislation. From 2010 to 2018, more than 400 abortion-related bills that were introduced in 41 states were substantially copied from model bills written by special-interest groups. The bills, among other things, required women to receive ultrasounds before an abortion procedure, imposed stricter licensing requirements on abortion clinics, and established a waiting period before abortions can be performed. States passed 69 of them into law.

The most copying of fill-in-the-blank legislation occurred in states that this year moved to effectively ban abortion when a fetal heartbeat is detected or in nearly all cases — Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri and Ohio. Those seven states accounted for more than one-third of the copying of special interests’ anti-abortion model legislation during the period analyzed by USA TODAY and The Arizona Republic.

Alexa Kolbi-Molinas, a senior staff attorney with the American Civil Liberties Union, which is challenging in court some of the heartbeat laws, called the volume of copycat abortion bills introduced nationwide “stunning.”

“This is all part of an orchestrated national strategy to push abortion out of reach for people,” she said, noting the copycat bills were introduced during a period when more than 400 abortion restrictions were enacted across the country.

While many of the states that have passed heartbeat bills have long been active in their anti-abortion efforts, lawmakers and legal experts say the passage of heartbeat bills in multiple states this year is a reaction to two recent developments, in particular: President Donald Trump’s appointment of two conservative justices to the U.S. Supreme Court and passage of abortion-rights laws in Vermont and New York.

Also, heartbeat bills represent the next logical step for lawmakers who’ve experienced a decade of success enacting restrictions on abortion by using copycat bills.

But the heartbeat bills are controversial because they ban abortion as early as six weeks after gestation, a point when women may not yet realize they are pregnant.

The heartbeat bills have faced immediate court challenge, so none has gone into effect. But they have already provided a potential path to challenge the U.S. Supreme Court’s 1973 Roe v. Wade decision that legalized abortion nationwide.

A two-year investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity found copycat bills amount to the nation’s largest, unreported special-interest campaign, supplanting in some states the traditional approach of writing legislation from scratch.

Lawmakers allied with anti-abortion groups and the groups themselves say there is nothing inherently wrong with using copycat legislation if it addresses real problems in their particular states.

“The value of model legislation is that it typically has been well-researched, is grounded in constitutional research,” said Cathi Herrod, president of the Center for Arizona Policy, a nonprofit advocacy group that has had a hand in crafting several anti-abortion measures in Arizona, including at least seven copycat bills since 2010.

She added, “I can’t think of any time we’ve looked at a model proposal that we’ve taken verbatim. Virtually all model legislation has to be adapted to your state.”

Who’s behind the legislation

More than a dozen states have introduced or considered legislation restricting abortion in 2019.

Most attention has focused on the so-called heartbeat bills that ban abortion after a fetal heartbeat is detected, which can be as soon as six weeks after gestation. Those bills are based on model legislation created by an Ohio-based group called Faith2Action.

Activist and Faith2Action founder Janet Folger Porter said she was frustrated with other conservatives’ slower-developing strategy to effectively banning abortion by focusing on incremental legislation. So she crafted heartbeat legislation at her northeast Ohio home during a woman’s sleepover party. God “put this idea in my heart,” she said at the time.

“When I started it, there were those who said it was impossible,” Porter recently told The Cincinnati Enquirer. “But the state of Ohio motto says, ‘with God, all things are possible’.”

The first year it was introduced, in 2011, Porter’s organization sent heart-shaped balloons to the Ohio statehouse to urge legislators to vote for the measure. Two pregnant woman were brought to committee hearings to have their unborn children “testify” via ultrasound exam. Porter got supporters to flood lawmakers’ offices with calls and emails.

Ohio’s Senate declined to vote on the bill the first year over concerns it would be found unconstitutional.

Rachel Sussman, national director of state policy and advocacy at Planned Parenthood Federation of America, called Faith2Action “a radical fringe group” seeking to ban all abortions. As a result of the group’s work, state legislators are now pushing this “extreme agenda,” in a coordinated effort to ban abortion across the country, Sussman said in a statement.

“These politicians are dismantling our rights and freedoms in the process,” she said.

The model bills have succeeded despite public polling that a majority of American adults believe abortion should be legal in all or most cases.

Six in 10 adults surveyed in 2018 said abortion should be legal in all or most cases, according to the Pew Research Center, with the partisan divide over abortion wider than it was two decades ago.

Though the bill died in Ohio’s Senate, the copying of it was just beginning. Over the next two years, versions were introduced in a number of states, including Minnesota, Mississippi, Ohio and Texas.

In 2013, Arkansas and North Dakota became the first states to pass heartbeat bans, which were immediately blocked by court challenges and declared unconstitutional. Iowa became the third state in 2018, but that law was also blocked and declared unconstitutional. Heartbeat bills have now been introduced in about two dozen states in all.

This year, the momentum continued as anti-abortion lawmakers responded to changes on the Supreme Court as well as efforts to loosen abortion restrictions.

Heartbeat bills passed in Missouri, Kentucky, Mississippi, Ohio, Georgia and Louisiana. An Alabama law goes further, banning abortions at any stage of the pregnancy unless the mother’s physical or mental health is in jeopardy.

Heartbeat bills have been the most controversial abortion-related bills of recent years, but they’re not the only copy-and-paste legislation on the issue.

Over 8 years, more than 400 copycat abortion bills

The Washington, D.C.-based public-interest law firm Americans United for Life has for the past decade been the nation’s most prolific author of copycat abortion legislation.

The reason: It’s a full-service operation.

The group has 10 attorneys who work full-time or on contract for the advocacy group, writing legislation that lawmakers can adapt to their states. They also make their attorneys available for consultation. When debate begins, they furnish witnesses, such as doctors and law professors, to testify on behalf of the bills. After anti-abortion laws based on Americans United for Life have passed, they assist state attorneys general in defending them against court challenges by filing amicus briefs. The group also ranks each state annually for the strength of its abortion restrictions.

A group of conservative Catholics founded the organization in 1971, and initially the group was involved in the debate surrounding abortion. In 1975, it reorganized into a legal organization and created a legal defense fund.

Americans United For Life lists as one of its early victories its involvement in a 1980 U.S. Supreme Court case that upheld the Hyde Amendment, which prohibits federal funding of abortion in most cases.

Americans United for Life then took its legal strategy to the states, working with lawmakers on legislation to restrict abortion.

The group’s influence and public profile began to grow in 2011 under the leadership of then-President and CEO Charmaine Yoest, who worked in the White House Presidential Personnel Office during President Ronald Reagan’s administration and was senior adviser on Mike Huckabee’s 2008 presidential campaign.

The group received national attention in 2012 after it issued a controversial report titled “The Case for Investigating Planned Parenthood.”

The group publishes a “pro-life playbook” called Defending Life to guide lawmakers with model legislation and analysis. The 2019 edition includes recommendations for each state, and guidelines that encourage states to prioritize legislation to defund abortion services. Americans United for Life offers lawmakers a menu of more than 50 model bills.

Each year, about 30 bills pass nationwide based on its models or with assistance from the group’s attorneys, said Steven Aden, the group’s chief legal officer and general counsel.

The majority of anti-abortion laws are enacted at the state level, the group says. Its website cautions that improperly worded legislation — even if it’s well-intended — can make matters worse.

“Our model legislation enables legislators to easily introduce bills without needing to research and write the bills themselves,” the group states on its website. This helps “ensure that their efforts will have the desired impact and withstand judicial scrutiny.”

“Our model legislation enables legislators to easily introduce bills without needing to research and write the bills themselves.”

Americans United for Life

The USA TODAY/Arizona Republic analysis found Americans United for Life was behind the bulk of the more than 400 copycat abortion bills introduced in 41 states. The analysis compares known model legislation with bills introduced by lawmakers using a computer algorithm developed to detect similarities in language.

Aden said he isn’t surprised by what the analysis found.

In 2018, the group provided model language or helped enact 19 new laws while defeating eight “anti-life measures,” according to its annual report. That year, Arizona, Indiana and Idaho passed laws based on the group’s copycat language that required complications of abortion be reported in abortion statistics.

They focus on states where lawmakers ask for help, Aden said.

“We try to be ladies and gentleman. We don’t go where we’re not invited.”

Mississippi Senator Joey Fillingane said he worked with Americans United for Life on legislation, adding, “they have a lot good attorneys.”

Fillingane introduced the group’s Child Protection Act three years in a row, beginning in 2010. The bills, which didn’t pass in those years in Mississippi, sought to place additional reporting requirements on doctors who perform abortions on minors.

This year, as a committee chairman, Fillingane advanced Mississippi’s heartbeat bill by presenting it for discussion to the Senate Public Health and Welfare Committee.

Who introduced the most model bills?

A Mississippi state senator, Michael Watson, is among the nation’s most prolific sponsors of abortion-related model bill legislation.

The Republican proposed nine abortion-related bills over the eight-year period analyzed by USA TODAY/Arizona Republic. The bills ranged from banning the use of public funds for abortion or family planning to heartbeat bills.

He sourced language from eight Americans United for Life models, and he repeatedly used terms from a single Faith2Action model: the heartbeat bill.

A USA TODAY analysis of copycat legislation published in April found Watson is one of the top sponsors of model bills on other topics, too, with a total of 56 model bills. Watson acknowledged in an interview earlier this year that he uses model bills.

“We go down to our attorneys in Legislative Services, and say, ‘Here are the issues I want to cover. I know several other states have done this, so there’s some kind of boilerplate language out there. Let’s pull in the good pieces and put some legislation together,’” Watson said.

Where is this headed?

The architect of the heartbeat bill is optimistic about its chances to overturn Roe v. Wade. But its recent success has highlighted a rift among anti-abortion groups over strategy.

Faith2Action tells supporters on its website that with the confirmation of Brett Kavanaugh to the nation’s highest court, “experts now agree we have the votes to uphold the HeartBeat bill on the United State Supreme Court.” The group predicts that “even more pro-life judges will likely be appointed” in coming years.

Porter, president of Faith2Action, did not respond to requests for comment. But she told The Guardian newspaper in April that heartbeat legislation is “an easy thing for the Supreme Court to embrace. All they have to do is move the marker from the unscientific marker to the scientific marker of heartbeat, which is inches away from our goal of when our lives begin at conception.”

But Faith2Action appears to be an outlier among the anti-abortion organizations pushing copycat bills across the country.

Americans United for Life hasn’t written a model heartbeat bill. Aden, the group’s chief legal officer, said that’s because from a strategic perspective, “we don’t think the court is quite ready for that.”

While Aden said he celebrates the passion of heartbeat bill supporters, the courts have struck down every one of those bills.

“I just wonder sometimes, I hope that they won’t be too discouraged when the federal courts weigh in on some of these bills,” he said.

Center for Public Integrity reporter Rui Kaneya, Arizona Republic reporter Rob O’Dell, Cincinnati Enquirer reporter Jessie Balmert and USA TODAY reporter Doug Stanglin contributed to this story.

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