Keep abortion safe and legal
For nearly half a century, women in the United States have had a constitutional right to a safe and legal abortion. And for most of that time, abortion opponents have been trying to take it away. The results include a congressional ban (called the Hyde Amendment) on federal money for abortions and a patchwork of unnecessary state laws that have forced numerous abortion providers to shut down and left some states with a single clinic.
U.S. District Judge LeeYeakel aptly summarized the situation in 2013 when he issued an injunction against aTexas law thatwould have imposednewdemands on abortion providers. Abortion, hewrote, “is the most divisive issue to face this country since slavery.”
But opponentshave yet to dislodge the bedrock of abortion rights: the Supreme Court’s holding inRoe vs. Wade (1973) that the 14thAmendmentguarantees a right to privacy, whichincludes the right tohave an abortion.
BeforeRoe, womenwere at themercy of lawshandeddownby aprofoundly patriarchal, sexist society that believedthe conception of a fetuswas a sacrosanct event and thatwomenwere simply the vessels that carry it. Only four stateshad legalized abortion for any reason. Inother states it was completely outlawedor permitted only if thewoman’s life or mental healthwas in peril.
Formanywomen, thatmeant a harrowing and often fruitless search forsomeone — preferably a medical doctor— whowould perform an abortion illegally, often for a preposterous fee. AGuttmacher Institute researcher estimated that in 1972 alone, 130,000womenobtained illegal or self-induced procedures, 39 ofwhomdied; from 1972 to 1974, the mortality rate due to illegal abortion fornonwhitewomenwas 12 times that for whitewomen.
In the years since then, the basic tenet of Roe has been reaffirmedby the court over and over again. Revisiting the issue nearly two decades later, the high court said in PlannedParenthood of SoutheasternPennsylvania vs. Casey (1992) thatwomenhave a right to an abortionupto the pointwhen the fetuswas viable, although beyondthat point, the government has an interest in protecting both the fetus and thewoman’s health. That decision set an important standard: a lawcannot be enacted simply to place a substantial obstacle or burdenin the way of anabortion.
Yeakel applied that standardwhenhe blocked theTexas law, whichwould have requireddoctorswhoprovided abortions to have admitting privileges atnearbyhospitals, andabortion clinics to be outfitted like ambulatory surgical centers. TheSupreme Court agreed inWholeWoman’sHealth vs. Hellerstedt (2016), dismissing the lawas a shamintended only to setupobstacles to getting an abortion. WhenLouisiana legislators enacted a replica ofTexas’ statute, the justices threwit out by a 5-4margin for the samereason. ThenJusticeRuthBader Ginsburg died. Ginsburgwas, amongother things, a fierce defender of access to abortion and contraception. AmyConeyBarrett, the 7th Circuit Court ofAppeals judgePresident Trumphas nominated to replace her, is likely to be anything but that.
Barrett’s supporters andcritics alike believe thather addition to the court will lead it to take a case that could overturnRoe or— almost as bad— disregardCaseyand uphold state lawsthatwould chip away at abortion rights. Had she been hearing the Louisiana case instead of Ginsburg, many observers believe the courtwould have split 5-4inthe other direction and let the Louisiana statute stand. Thatwould have left Louisiana with just one abortionprovider.
Sohowdidwe enduphere? Roe vs. Wade may be considered settled lawby virtue of its longevity andits impactonwomen’s lives. But unlike other landmarkSupreme Court rulings, such as Brownvs. Board of Education (1954), whichdesegregated public schools, it hasnever stoppedbeing controversial. Instead of deflating abortion opponents, Roe has only galvanized them. Thedays are gonewhenpeople linedup outside newly desegregated schools to yell at the black childrentrying to enter. But opponents of abortion routinelydemonstrate outside clinics, sometimes yelling at thewomengoing in.
Asthe yearshave passed since the
Roe decision, effortsby state lawmakers to restrict abortions have only intensified. FromJanuary 2011 throughMay 2019, 479 abortion restrictionswere enacted in 33 states, or about60per year, according to the Guttmacher Institute. That’s a considerably faster pace than in the previous four decadespost-Roe.
Someof these measureswere so obviously in violation ofRoe that theywere blocked by federal courts, such as prohibitionsonabortion six to eightweeks into pregnancy. Thecourts have alsohalted somebans onabortiondonefor reasons the state doesn’t like— for example, because the fetus has been diagnosed with a severe illness or disability or for sexselection.
Less outrageous butmore obstructive have been lawsthat set absurdandunnecessary standards for clinics andproviders. Inmany cases, these measures forced clinics to closebefore the courts could intervene. Today, there arefive states with only one abortion clinic. Other measures have imposedwaitingperiods for abortions andrequiredwomenseeking one to view an ultrasound imageof the fetus. Some stateshave insistedonmultiple unnecessary visits to aprovider to get the pills for medication-induced abortions. These laws particularly hurt lower-incomewomenwho can’t affordto take several daysoffwork to make multiple trips to a clinic far fromtheir homes.
OverturningRoe or lowering the bar that Casey set for abortion restrictions would open the floodgates to these sorts of measures, eventhoughpolls showthatmost Americanswant abortion to remain legal in all ormost cases anddonotwantRoe overturned. But these sentiments divide along party lines, withDemocratsmore supportive of abortion rights thanRepublicans.
Clearly, Barrett is personally opposed to abortion. While shewas a lawprofessor at NotreDameUniversity, shewas amember of an anti-abortion faculty groupandwas one of hundreds of female professionals whosigned anopen letter to a meeting of Catholic bishops in 2015, expressing their belief in “the value ofhumanlife from conception to natural death.” In2006she wasamonga long list of signatorieswho declared in an anti-abortion ad in a South Bend, Ind., newspaper that they “oppose abortion ondemandanddefend the right to life fromfertilization to natural death.” The more provocative second page of the ad, next to the signatures, said in part, “It’s time to put anendto the barbaric legacy ofRoe v. Wade.”
AlthoughBarrett hasnever ruled directly onan abortion case, shewas peripherally involved in a couple. Inboth cases, she signed onto dissents that urged the 7th Circuit to reconsider rulings that barredthe state of Indiana fromimposing additional restrictionsonabortions— inone caseon minors who’dobtained a judge’s approval for an abortion, and inthe otheronabortionsdone for reasons of sex, race or fetal diagnosis.
Those dissents are troubling enough. A moreworrisome portent is her 2013Texas LawReview articleonwhenthe Court should veer fromprecedentand overturn one of its owndecisions. “I tend to agree with thosewhosay that a justice’s duty is to theConstitution andthat it is thusmore legitimate for her to enforce her bestunderstanding of theConstitution rather than a precedent she thinks clearly inconflict with it,” shewrote.
Barrett acknowledged that somedecisions are widely viewed as “superprecedents” that havebecomeuntouchable by virtue of their acceptance by the public. But Roe vs. Wade, she suggested, is the sort of controversial decision that “courtwatchers embrace thepossibility of overruling.”
Roe should rank as a superprecedent because it guarantees a right fundamental towomeninAmerica, one that they have reliedonnowfor decades. Whenthe court has overturned a long-standing precedent in the past, it has often done so to grant rights, not takethemaway; witness the Brownruling. Taking away awoman’s right to decide for herselfwhatshe willdowith a pregnancy before the fetus is viablewould constitute aprofound injustice and an upheaval in the lives of millions ofwomen of child-bearing age. Nothing has changed medically sinceRoe that argues for taking away awoman’s control over her ownbody while a fetus is not viable.
TheSupremeCourt is currently consideringwhether to hear a challenge to Mississippi’s banonabortions after 15weeks into a pregnancy. There are also four state banson abortions sought for certain reasons (a fetal diagnosis, gender) that aremaking their way throughappellate courts. All blocked at least temporarily fromtaking effect. All could travelupto the SupremeCourt.
Thealarming thing is that the landscape for abortion availability even withRoe is bleak. Womenwholive inany of the states with just one abortion clinic face a daunting task of getting to them. Andit is alwayspoor or low-incomewomenwhoface themost difficult obstacles to getting an abortion.
IfRoe goes away, there willbe states where abortion will be legaland states where it willbe outlawed. Andin the states where it’s outlawed, therewill probably be more so-called self-managed abortions— either throughillicitly obtainedpills for a medication abortion or fromsomeother self-induced method.
At this point, abortion is part ofwomen’s healthcare in theU.S., and it should stay thatway. Seemingly every major medical organization supports access to safe and legal abortion. So should the Supreme Court.