2022 State Legislative Sessions: An Overview of Full Protections for the Unborn
Life is the most fundamental of all human rights, and the right to life is the prerequisite for enjoying all other rights. Yet, in America, that right is often denied when the human being in question is in the womb.
In 1973, the U.S. Supreme Court’s decision in Roe v. Wade prevented legislators from fully eliminating the terrible injustice of abortion. This year, however, the landscape has changed. Once Texas’ heartbeat ban was upheld in March, it became clear that protections for the unborn with private enforcement mechanisms could stand up to legal challenges. And now, with the Court’s decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe, state legislators will be able to pass even complete protections for the unborn without the constant threat of being immediately stymied by federal litigation for the first time in nearly 50 years.
Many states have already taken advantage of this historic opportunity, even as challenges to Roe were unfolding in the courts, by moving legislation to establish full protections for the unborn. Others had laws already on the books. Laws to fully protect the unborn have been enacted in 18 states (see FRC’s Post-Roe map). Thirteen of these states proactively enacted “trigger laws” that established full protections for the unborn once Roe was overturned.
This type of legislation has seen a significant upturn in just the past two years. Only five states introduced such legislation in 2020, whereas 13 states have introduced it in 2022 This momentum, even as federal litigation began to undermine Roe, shows that many states will choose life when given the choice.
FRC advocates for full protections for the unborn. The strongest bills include each of the following provisions:
- Prohibit abortion at all stages.
- Provide legislative findings.
- Provide a strong definition of “unborn child,” defining them as human beings beginning at
- Define abortion to exclude separating mother and child during an ectopic pregnancy or any action taken to preserve the physical life of the mother.
- Explicitly exclude psychological or emotional conditions (such as a mother’s verbal threat of future self-harm) as grounds for an abortion.
- Impose criminal penalties for noncompliance.
- Indemnify the mother.
- Create a cause of action for the state to enforce the law.
The bills most closely aligned with this framework in 2022 were West Virginia S.B. 601 and Colorado HB22-1047, although both of these bills lacked a cause of action. Several states have followed Texas’ lead and introduced protections for the unborn enforced solely through private civil action. This year’s strongest example of such a bill is Arkansas H.B.1118, which contains all of the above provisions.
Three full protections bills have been enacted so far this year. Two of these are from Oklahoma, where state legislators took the initiative of passing one bill with traditional criminal penalties (S.B.612) and one that relies solely on a private civil action (H.B.4327). Oklahoma’s state legislators have demonstrated a commitment to the protection of innocent life that should be a model to the rest of the nation. A third bill (H.B.92) was enacted in Wyoming, but the lack of enforcement mechanisms severely weakened it.
State legislators can no longer claim that their hands are tied by the federal judiciary. They must rise to meet this moment with courage and legislation that protects all unborn life. It’s time for state law to reflect the fundamental truth that human beings do not suddenly gain value and rights when they exit the womb or at a certain arbitrary point of development. Each life is infinitely precious and must be protected by the full force of the law.
