Last summer, the Texas legislature passed HB 2, an omnibus bill attacking women’s access to safe reproductive-health services. The law encompasses a wide variety of restrictions: It unconstitutionally bans abortions after 20 weeks; it restricts access to medication abortions—safe terminations usually occurring in the first trimester; and it unfairly requires abortion facilities—which are outpatient care centers—to meet many of the standards required of hospitals while not requiring other types of outpatient care centers to meet this same standard. Individually, these restrictions are problematic; taken together, they serve to dramatically reduce Texas women’s access to safe abortion services.
The law passed despite the heroic protests of State Senator Wendy Davis and thousands of other outraged lawmakers and activists, and threatens to shut down the vast majority of abortion providers in the state (indeed, on March 6, two of Texas’s remaining abortion clinics shut their doors, citing their inability to survive the medically unnecessary guidelines mandated by HB 2).
If all of these provisions are ultimately upheld, millions of Texans, especially those in western and southern Texas, will be left with extremely limited access to abortion care and for low-income immigrant women living in the Rio Grande Valley, abortion will be virtually inaccessible. Those who are able to travel to the nearest provider—which in some cases is a considerable journey—face other obstacles and tactics intended to shame women out of choosing abortion, including requirements for undergoing “counseling” based on a biased script written by politicians and enduring a politician-mandated ultrasound. These restrictions are not based on medical evidence, are not grounded in medical standards of care, and were opposed by the American Congress of Obstetricians and Gynecologists (ACOG). The American Medical Association also recently joined ACOG in filing an amicus brief opposing HB 2’s admitting-privileges requirement. In fact, these laws make women’s lives more difficult and, for those who take matters into their own hands, more dangerous.
In many states, this is the reality of abortion access today, more than forty years after the Supreme Court recognized in Roe v. Wade, 410 U.S. 113 (1973), that a woman has the fundamental, constitutional right to decide for herself whether to continue or end a pregnancy. The Court’s opinion struck a careful balance between a woman’s fundamental right to privacy, the government’s interest in protecting women’s health, and the potential for life at different points in pregnancy. In the first trimester of pregnancy, the Court held that the government has no compelling interest to restrict abortion access. A state’s interest in regulating abortion in order to protect women’s health makes some regulations that advance women’s health justifiable in the second trimester of pregnancy and its interest in protecting fetal life is a compelling state interest only after the point at which a fetus has a realistic potential for long-term survival outside the woman’s uterus (after “viability”). Under this standard, many restrictions on abortion were struck down throughout the late 1970s and 1980s.
In the years since Roe was decided, the Supreme Court has continued to uphold the core principle that a woman has a fundamental constitutional right to make decisions about her reproductive health and future. However, for too many women the right has been made hollow. The Supreme Court’s decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), opened the floodgates for government regulation of abortion: Concerned that not enough weight was being given to states’ interest in potential life, the Court diluted the judicial standard of review from “strict scrutiny” to the “undue burden” standard. This nebulous standard allows lower courts to determine whether a law or regulation places a “substantial obstacle” in the way of women seeking abortion care. As lower courts have applied and misapplied that standard, the result has been to keep abortion legal but allow state governments to more aggressively interfere with an individual woman’s right to make personal health care decisions. Even some of the types of restrictions that were struck down under Roe’s framework are upheld under the increasingly watered-down “undue burden” standard of review.
A seismic shift in anti-abortion legislative zealotry occurred after the 2010 elections, which, due to growing economic frustrations, swept into federal and state offices many given that their purpose is to dismantle existing Supreme Court precedent. For example, in 2013, Arkansas passed a law banning abortions after 12 weeks. Not to be outdone, North Dakota followed with a ban on abortion at the first sign of a fetal heartbeat (which for some women occurs before they even know they are pregnant). Both laws are being challenged in federal court and have been preliminarily enjoined. Since 2010, several states have passed laws banning abortion at 20 weeks of pregnancy and those have also been blocked when challenged in court. Although voters in Albuquerque, New Mexico, defeated a municipal ballot initiative last fall that would have banned abortions at 20 weeks, the leaders of that effort have announced plans to introduce similar bans in other municipalities. In addition, the most extreme opponents of abortion rights continue to push ballot initiatives around the country that would grant “personhood” to fertilized eggs. While these efforts have been unsuccessful, fighting these efforts drains advocates’ valuable resources.
Even though direct attacks on Roe and Casey have largely failed, conservative lawmakers have been quite successful in using Casey’s watered-down standard to chip away at abortion rights on the margins—in some cases accomplishing through indirect means that which they cannot achieve directly. Many of these restrictions have been upheld, even when the state offers little or no evidence of how these laws will improve women’s health or promote the state’s interest in protecting fetal life.
What is happening in states around the country is not just an abstract problem for constitutional lawyers and policy wonks. These laws have a real impact on women and their families. Today, more than half of all U.S. women of reproductive age live in a state hostile to abortion—in other words, a state with numerous restrictions on access to the full range of reproductive health care. Women in these states face multiple barriers and hardships in order to exercise their fundamental reproductive rights. While it is hard to research and quantify the cumulative impact of all of these restrictions on women, we know the restrictions can cause stigma, shame, and incredible financial and emotional hardship. Some of these restrictions cause women to delay access to care, while other barriers completely prevent some women from being able to safely and legally end a pregnancy. Rural women, young women, poor women, and women of color, who often have disproportionately higher rates of unplanned pregnancies, are especially hard hit.
We know that for low-income women in particular, the economic impact of abortion restrictions can be extremely harmful. Most states will not cover abortion for women covered by Medicaid (under the Hyde Amendment, since 1977 the federal government has barred use of federal funds for abortion under almost all circumstances for women in the Medicaid program and the Supreme Court upheld this discriminatory provision in Harris v. McRae, 448 U.S. 297 (1980))—leaving many low-income women to forgo food, rent, or other basic necessities to pay for their abortion care. Among the 17 states that provide Medicaid coverage for all or most medically necessary abortions, 13 have been compelled to do so by state courts. Despite the fact that Medicaid does cover abortions in the case of rape, incest, and life endangerment, the practical reality is that many states have made it administratively impossible for providers to receive any reimbursement—further demonstrating that a right on paper may not be a right in reality. At the same time, 19 state legislatures have passed bans on coverage for state public employees, and a whopping 24 states now have bans on private insurance coverage through the new state health insurance exchanges that opened up this year under the federal Affordable Care Act. Late last year, Michigan became the 10th state to pass a law that restricts coverage for abortion in all private insurance plans. The Michigan law is particularly cruel, withholding coverage even for women who are pregnant as a result of rape or incest.
Many of the laws on the books have been proven to not change women’s minds or improve the safety of abortion, but rather serve only to stigmatize the decision to end a pregnancy and make safe, legal, high-quality care difficult to obtain. For example, women in several states are forced to receive propaganda promoting scientifically false information about abortion, and in more than half of the states, they have to endure patronizing delays mandated by the state ostensibly to give women more time to think about their decision. Seven states passed laws in 2013 that limit access to medication abortion—a nonsurgical method of ending a pregnancy in its earliest stages—by requiring doctors to follow an outdated Food and Drug Administration regimen for the administration of the drugs or banning the use of telemedicine for this particular type of health care, making the medication more difficult to obtain, especially for women in rural areas. And 38 states have laws on the books that require a minor to involve one or both parents in her decision whether to continue or end a pregnancy.
Reproductive health care providers are also the targets of violence, harassment, and unnecessary and burdensome regulations that aim to put them out of practice. Nowhere is this truer than Mississippi, where there is only one clinic left in the entire state that offers abortion care. Outside the Jackson Women’s Health Organization, a flank of protestors stand ever present and ready, emboldened to walk right up to women as they get out of their cars, waving posters and signs and telling them to “stop killing their babies” or risk eternal damnation. The doctors who provide services at the clinic risk their lives to do so; few doctors from Mississippi are willing to work at the clinic because the protestors track them down and harass their families, “outing” them as abortion providers to other employers and community members. Because of the history of violence and threats against the clinic, the clinic administrator has to watch internal video monitors all day long and keep the local police and the FBI on autodial. Politicians hostile to women’s rights in Mississippi have erected seemingly every barrier they can think of to shut down the clinic and they have made it clear that they do not plan to relent even in the face of multiple court decisions underlining the unconstitutionality of their actions. Their intent is no secret: On the most recent anniversary of Roe, the governor of Mississippi reaffirmed his goal to make Mississippi the first “abortion-free” state.
As a result of these laws, Mississippi, along with Arkansas, Missouri, North Dakota, and South Dakota, are left with only a single provider offering surgical abortions. And an increasing number of states in the Midwest and South have only a handful of providers left. Hospitals in many places no longer offer abortion care and individual doctors are understandably wary of protestors and death threats. More than 50 clinics have been shuttered since 2011, in part because of all the new requirements and restrictions.
The sad reality is that for women in the United States today, the ability to exercise their fundamental right to reproductive decision making and to obtain abortion care very much depends on their zip code. For many women in 90067 (Los Angeles), their fundamental right under the Constitution is very much alive and well. But for many women in 39069 (Jefferson County, Mississippi), Roe and Casey might as well have been overruled—abortion access has become that difficult under the often-crippling restrictions placed on abortion providers and women seeking abortions.
The devolution of a de jure national constitutional right into a de facto state-by-state right has not been lost on federal lawmakers. On November 13, 2013, Senators Richard Blumenthal and Tammy Baldwin and Representatives Judy Chu, Marcia Fudge, and Lois Frankel introduced the Women’s Health Protection Act. The Act contains a concise but important set of congressional findings. They include the finding that access to safe, legal abortion is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States (echoing Justice Sandra Day O’Connor’s statement in Casey that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”). The bill also notes that abortion is one of the safest medical procedures in the United States. Most important, the bill’s findings note that many state-level abortion restrictions—including ones that claim to be designed to protect women’s safety—are not based on science and do not advance the safety of abortion or protect women’s health. Indeed, as bill sponsor Senator Blumenthal himself noted, anti-choice lawmakers have been “using women’s health and safety as a ploy to enact unconscionable and unconstitutional state statutes that obstruct and block women from essential health care and reproductive rights.”
Because the federal bill is designed to reverse the current trend by which, as it states, “a woman’s ability to exercise her constitutional rights is dependent on the State in which she lives,” it invokes Congress’s authority under the Fourteenth Amendment and the Commerce Clause to preempt a number of common state-level abortion restrictions. Part of the bill aims to defend the standards established in Roe and re-articulated by the Supreme Court in Casey: It would invalidate pre-viability bans (such as 20-week and “heartbeat” bans) as well as post-viability bans that do not include exceptions to preserve a woman’s health or life. The bill would also invalidate state laws and regulations that impose restrictions on the provision of abortion services while not imposing the same burdens on comparable medical procedures; that do not significantly advance women’s health or the safety of abortion services; or that make abortion services more difficult to access. For example, the bill would prohibit
• unnecessary tests and procedures (such as mandatory pre-abortion ultrasounds that are not medically required),
• regulations that impose onerous and medically unnecessary requirements on abortion facilities and health providers (such as laws requiring abortion clinics to meet the same architectural standards as hospitals),
• medically unnecessary limitations on providing abortion-related services through telemedicine,
• medically unnecessary restrictions on an abortion provider’s ability to delegate tasks to colleagues, and
• laws requiring women to make one or more medically unnecessary trips to a provider of abortion services.
In addition, the bill includes a provision designed to preempt similar laws not currently being advanced but that might be promulgated in the future. This provision would, in the words of Senator Blumenthal, “ensure that attorneys fighting to protect the rights of women have access to the tools they need to address these onerous state laws.”
On the one hand, there is every reason to expect that the Women’s Health Protection Act will become law. After all, over 70 percent of Americans support access to legal abortion. Accordingly, the bill has received a tremendous reception in the Senate and House, garnering (as of July 22, 2014) 36 Senate and 125 House cosponsors. On the other hand, given the political realities of the 113th Congress, it is unlikely to become law this congressional session. Nonetheless, Senator Blumenthal remains undeterred: “While we have many strong allies on this bill, we also have many people in the Senate who do not want to see it passed. However, it was important to me to introduce it during this Congress so that we can see where people, whether running for office or already in office, stand regarding protecting these rights.”
Whenever the Women’s Health Protection Act becomes law, one thing is clear. Women should not be forced to go to court over and over again to defend a fundamental right and to be able to continue to exercise it. And it should not be acceptable, in law or in practice, for the government to enact policies whose purpose is to humiliate and shame women and place unnecessary barriers in the path of women seeking to exercise their fundamental right to choose an abortion. The constitutionally recognized right to privacy is not a right reserved for the privileged few who live in the right states or have the means to get to the right ones. As lawyers and Americans, we can no longer stand by and let state legislatures eviscerate the constitutional protections articulated in Roe v. Wade.