Lifting the Burden on Abortion Access

By Dianne Feeley, Jacobin

09 July 16

Last month’s Supreme Court decision dealt a blow to the most zealous anti-abortion legislators.

n June 27 the US Supreme Court, in Whole Woman’s Health v. Hellerstedt, not only struck down key provisions of a 2013 Texas law restricting abortion, but also set a standard by which similar legislation can be measured.

The 5-to-3 ruling swept aside the requirement that clinics providing abortion must be ambulatory surgical centers, staffed by doctors with admitting privileges at a hospital within thirty miles.

The Texas legislature maintained that these restrictions were necessary for women’s health and safety, but the Supreme Court wasn’t buying it.

In addition to the Whole Woman’s Health clinic brief, forty-five amicus briefs were filed by reproductive rights, civil rights, and women’s organizations, as well as by medical experts and social scientists. This meant that the court had a wealth of knowledge about what the law’s passage meant for women seeking abortion in Texas.

In a state with 5.4 million women of reproductive age and a history of 60,000–72,000 abortions per year, the “number [of clinics] dropped by almost half up to and in the wake of enforcement of the admitting-privilege requirement that went into effect in late October 2013.” Given the cost of converting a clinic into a surgical center ($1.5–3 million), only seven or possibly eight of the previous forty-one clinics would have stayed open.

The Texas attorney general’s lawyers argued that the few remaining clinics could handle the increased traffic, but the majority opinion disagreed, noting that the law created longer wait times to get an appointment and longer travel times, placing “a particularly high barrier for poor, rural, or disadvantaged women.”

If both provisions prevailed, two million women of reproductive age would be at least fifty miles from a clinic, with 750,000 more than two hundred miles away.

Justice Steven G. Breyer, writing the majority opinion, also found the requirement of admitting privileges at a nearby hospital unnecessary. Many hospitals restrict admitting privileges to faculty members or to doctors who have a significant annual number of hospitalized patients.

The president of Nova Health Systems, which operates an El Paso clinic, cited the difficulty its doctors faced in obtaining privileges because, of the seventeen thousand abortions performed in the previous decade, none had required sending a woman to a hospital.

The majority opinion concluded: “In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit.”

Although Texas claimed that the admitting privilege provision “will reduce the delay in treatment and decrease health risk for abortion patients with critical complications” and would “‘screen out’ untrained or incompetent abortion providers,” the state could not offer a single example where an admitting privilege benefited a clinic patient.

In his dissenting opinion Justice Samuel A. Alito, Jr pointed out that the Texas law was passed “in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient.” Therefore, he reasoned, it was logical to assume the law was designed to protect women.

Justice Breyer acknowledged Gosnell’s crimes but stated that “there is no reason to believe that an extra layer of regulation would have affected that behavior,” noting that Gosnell escaped detection because his facility went un-inspected for fifteen years.

The overwhelming majority of Texas abortions are first-trimester terminations in which the rate of complication is less than one quarter of 1 percent — approximately one death every two years.

Compare this to other procedures performed outside hospitals or surgical centers: colonoscopies have a mortality rate ten times higher and liposuction twenty-eight times higher. Texas law allows a midwife to deliver a child in a patient’s home despite the mortality rate being fourteen times greater.

Clearly the requirements for ambulatory surgical centers are totally off the mark for conducting abortions. Nor is there any need for detailed specifications about the size and specialization of the nursing staff, building dimensions, one-way traffic patterns, sterilization rooms, or safeguards for moving heavily sedated patients during emergencies.

The majority opinion concluded that “each [provision] places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Three Supreme Court Decisions

While the 1973 Roe v. Wade decision swept away state laws banning abortion, it also divided pregnancy into stages and gave the state enormous power to regulate abortion during the second and third trimesters. Despite the “strict scrutiny” standard that was to be applied to regulations, this provided anti-abortionists with some wiggle room.

In the immediate aftermath of the Roe decision opponents focused on building a case for the constitutional right of fetuses, hoping to supplant a woman’s right to abortion. They also harassed women entering clinics and lobbied to exclude women on welfare from abortion coverage by portraying them as promiscuous and therefore undeserving of a Medicaid-paid procedure funded by “our” tax dollars.

The Hyde Amendment, introduced as a rider to the federal budget, first codified this perspective in 1976. The women’s movement challenged the amendment, which was passed annually, but we ultimately lost on appeal.

But with one in three women having an abortion at some point during our lives, it gradually dawned on most anti-abortionists that portraying women as selfish or promiscuous was ineffective. So they switched tactics and began to focus on convincing women that abortion was wrong and unnecessary.

To do this they developed a network of “crisis pregnancy centers” situated near clinics offering abortion. These advertised free pregnancy tests, offered false information about the “dangers” of abortion, and encouraged women to become mothers, even if only to end up placing their child up for adoption. These centers are going strong; this year the Missouri legislature allotted centers in their state $4 million.

As they worked with state legislators to enact restrictive laws, anti-abortionists portrayed women as victims of highly profitable abortion clinics that exposed them to unsafe conditions. They lobbied for legislation that would protect women from such dangers.

These included waiting periods, mandated counseling scripts to scare women, required parental and spousal consent, restricted methods of abortion, prohibited abortions in hospitals receiving public funding, and established strict cutoff dates early in the second trimester. Many restrictions were built into the application process, slowing it down in order to give women time to change their minds.

But this regulatory approach to restricting abortion clearly contradicted the trimester approach outlined by Roe and was challenged by reproductive rights activists, leading to the 1992 US Supreme Court Planned Parenthood v. Casey decision.

The court’s decision was a mixed bag. It upheld and reaffirmed the constitutionality of women’s access to abortion, but it also upheld most of the anti-abortion movement’s restrictions using an “undue burden” standard.

Required counseling about fetal development and alternatives to abortion, a twenty-four-hour waiting period, and parental notification and consent — with a judicial bypass when needed — were all given the green light. The only restriction struck down was spousal consent. The Supreme Court drew the line at giving husbands veto power over their wife’s pregnancy.

The decision affirmed three principles it identified from Roe: the right of women to choose abortion before viability without “undue” state interference, the state’s power to restrict abortions after viability, and recognition that the state has a legitimate interest, from the onset of a woman’s pregnancy, to protect both the health of the woman and the life of a fetus that may become a child.

At a moment when many anti-abortionists hoped their attacks on the 1973 decision would result in its overturn, the 1992 decision crafted a compromise. It was the sixth time in a decade that the US Supreme Court had been asked to overrule Roe.

Planned Parenthood v. Casey upheld the right to abortion but also increased the power of the state to regulate abortion, particularly in intervening at the earliest moment. And while acknowledging that these restrictions were somewhat burdensome and more costly, the court ruled that they were not insurmountable.

But what defines an “undue burden”? This question has hung in the air over the last quarter century. How far from the clinic is too great a burden for a woman seeking abortion to bear? Who will watch a single mother’s children at home while she works her way through the process? What if she risks being bumped from a first-trimester abortion to a more complicated and costly second-trimester one? How might a poor woman cobble together the money for the procedure and its attendant costs? Should counselors have to decide whether a fearful and pregnant teenager might take her life rather than face her disappointed parents?

The Whole Woman’s Health v. Hellerstedt ruling has clarified the “undue burden” standard — the law must be based on medical evidence that benefits women. Laws that obstruct women’s access, no matter how much legislators claim it to be protective, are unconstitutional.

The opinion also rejected the Fifth Circuit Court of Appeals upholding of the Texas law on the basis that legislators had examined the facts of the case and therefore the courts should accept that judgment.

Five Supreme Court justices were able to see that the law was really about narrowing women’s path to abortion. Not only did they rule the law unconstitutional, but in her concurring opinion Justice Ruth Bader Ginsberg noted that when access to abortion is limited, women are more likely to resort to underground methods that do endanger their health and safety.

The Significance of Whole Woman’s Health

The wide-ranging Whole Woman’s Health v. Hellerstedt decision is important for three reasons.

First, it is a victory for women in Texas because it sweeps aside obstacles to their right to abortion.

However, the state is not mandated to repair the damage that has already been done, as Abby Goodnough documented in “Under Texas Law, Women Pay More and Wait Longer for Abortions.” She recounted stories of women forced to make long drives — some to clinics in neighboring states — sleeping in their cars in clinic parking lots, packed into waiting rooms, forced to wait longer in their pregnancy for appointments, and some even attempting self-abortions with misoprostol, a drug they can get across the border. Yet there is no guarantee that shuttered clinics will reopen.

Second, the decision applies not just to the Texas law but to identical laws in twenty-seven other states.

Shortly after the right-wing takeover of state legislatures in 2010, a flurry of laws regulating abortion were introduced; within four years 288 had been passed. So far this year 1,133 were introduced with 107 adopted.

Many are Targeted Regulation of Abortion Providers laws (TRAP laws) similar to the Texas provisions that have now been ruled unconstitutional. While states may claim their version to be more flexible than the Texas law, this copy-cat legislation was passed under the guise of protecting women when in fact it is doing just the opposite.

Of course those who oppose abortion will not give up easily, as one can see from Texas Lt. Governor Dan Patrick’s response to the Supreme Court ruling: “We’re going to go through this line by line and see what it is that we can address in a way that a Supreme Court would approve.”

So despite the broad ruling supporters of women’s rights will have to work to bring down these laws.

Finally, much legislation regulating abortion functions just like the TRAP provisions that were just ruled unconstitutional, opening the possibility for broader fights about abortion access.

Perhaps the most direct parallel is the banning of telemedicine for abortion in rural areas. Almost a decade ago Planned Parenthood began using teleconferencing in the early stage of a woman’s pregnancy.

After the woman was examined by a nurse at a clinic, the nurse would contact the doctor, who conducted an interview over Skype. To proceed with the abortion, the doctor released a medication drawer that contained two pills. The woman took the first in front of the medical personnel; two days later she took the second. She returned two weeks later for a checkup; in the case of a complication she reported directly to a hospital.

Despite this workable procedure, over the last four years telemedicine for abortion — but for no other procedure — has been banned in ten states. Clearly the reinstatement of the tele-abortion would be of immense value for rural women.

Other laws, while not directly targeting clinics, function to lengthen the process of an abortion, driving up its cost and in many cases humiliating women. In the light of the recent Supreme Court decision there is reason to believe that a legal basis now exists to challenge them as well.

Twenty-four states require a waiting period between the initial interview and the abortion, with fourteen requiring two trips. Seventeen states mandate counseling, including five that falsely maintain that there is a link between breast cancer and abortion, and a dozen that raise the phony issue of fetal pain.

These inaccurate and coercive requirements are exactly the opposite of what counseling should be about. Similarly punitive is the mandate for sonograms. They are only necessary if medically dictated. To require them and that the image be shown to the patient whether or not she asks to see it constitutes harassment.

Further, in the earliest stages of pregnancy, which is when more than 90 percent of women obtain abortion, sonograms require a probe of the vagina, and therefore fit the definition of rape.

Contrary to what anti-abortion legislators say, these laws — along with those that exclude women from coverage whether by private insurance or Medicaid — are obstacles.

Reproductive Justice

As second-wave feminism emerged in the late 1960s and early 1970s the legalization of abortion was one of many demands women raised. We saw the right to abortion, an end to sterilization abuse, and quality child care as a necessary triad.

We raised these demands in the context of a burgeoning women’s health movement and women’s involvement in rising civil rights, anti-Vietnam War, labor, and gay-lesbian struggles.

We broke through the two-tiered medical system in which wealthy women were pampered and served while working women were considered as little more than vessels to produce babies and be available for sterilization and scientific experimentation.

While this cross-class alliance strengthens women’s demands, attacks disproportionately affect those who are more vulnerable. Clearly without a single-payer health care system, an unequal medical system remains an impediment to women’s needs.

Socialist feminists maintain that it is only through defending the most vulnerable women that feminism unleashes its potential to transform women’s lives. The particular insights that black, Latina, and Asian women’s organizations have brought to the movement have deepened that insight.

Hopefully in demanding medical evidence for regulating abortion — the tool embedded in recent Supreme Court decision — supporters of women’s rights can reconnect access to abortion to the larger struggle for reproductive rights and to the larger skein of our lives and possibilities.