Understanding Abortion in the United States
The trajectory of the struggle to keep abortion safe, legal and accessible in the United States has been discouraging to many abortion rights advocates since the early 1990s. But a recent US Supreme Court decision, Whole Woman’s Health v. Hellerstedt, suggests that trajectory may be changing, although reproductive health advocates caution there are still significant potential obstacles to ensuring women’s access to abortion in the years ahead. In the years after the Supreme Court legalized abortion with the Roe v. Wade decision, opponents of abortion sought a constitutional amendment to overturn the ruling and ban abortion. These so-called Human Life Amendments, however, failed to garner popular support. After a series of legislative failures in the 1970s and 1980s, the anti-abortion movement adopted a new tactic: passing laws at the state level that, while not banning abortion outright, would make abortion more difficult to access. This included such measures as requiring minors to get their parents’ permission or a waiting period for women seeking abortion. Most of these early attempts to limit access to abortion were ruled unconstitutional, until the Webster v. Reproductive Health Services decision.
The Webster case focused on a 1986 Missouri law that prohibited state-financed facilities or personnel from being used in the provision of abortion unless a woman’s life was in danger, as well as the use of public funds, employees or facilities to “encourage or counsel” a woman to have an abortion. It also required doctors to test for fetal viability if they believed a fetus to be more than 20 weeks. Several Missouri reproductive health providers, including Reproductive Health Services, challenged the law. When the Missouri law was found unconstitutional, the state’s attorney general William Webster appealed the ruling to the Supreme Court. In 1989, the Supreme Court, which had taken on a more conservative tone under the presidency of Ronald Reagan, ruled in Webster v. Reproductive Health Services that all three provisions of the law were constitutional, which was widely interpreted as a green light for states to impose new abortion restrictions. Justice Harry Blackmun, who wrote the Roe decision, warned that a “chill wind blows” for the constitutional right to an abortion.1
Anti-abortion groups immediately began working on a bevy of anti-abortion measures to see how far they could go in restricting the procedure. The Pennsylvania Catholic Conference was one of the major forces behind the passage of the Abortion Control Act in Pennsylvania, which required a 24-hour waiting period and an “informed consent” talk from a physician before a woman could get an abortion, that married women notify their husbands of their intent to get an abortion and that minors get their parents’ consent. Gov. Robert Casey signed the measure in 1989. The law was challenged by abort ion providers, including Planned Parenthood of Southeastern PA, and went to the Supreme Court in 1992, which upheld all the provisions of the law except the requirement that women notify their husbands.
Planned Parenthood v. Casey did not overturn Roe as many expected. However, it replaced Roe’s trimester framework, which said abortion couldn’t be restricted in the first trimester and could only be regulated to protect a woman’s health in the second trimester, with a new framework that allowed states to regulate abortion “post viability.” This meant that states could now limit abortion after about 22 or 23 weeks of pregnancy. The Court also ruled that states could place restrictions on pre-viability abortion, as long as these restrictions did not constitute an “undue burden” on a woman’s right to abortion.
The Casey decision opened the door to a wave of new regulations designed to impede access to abortion by making it more expensive, complicated and emotionally fraught to access. Waiting periods were extended to 48 hours or more, and women were required to view sonograms of fetuses and hear state-written materials on the alleged mental and physical dangers of abortion that weren’t backed by scientific evidence.
Then, about five years ago, anti-abortion forces went into high gear. They were emboldened by the Republican takeover of nearly two-thirds of state legislatures and an aggressive strategy by anti-choice lobby groups like Americans United for Life to create new laws to limit access to abortion that were camouflaged as measures to protect women’s health. These included measures to require abortion clinics to meet the same building ruling codes as outpatient surgical facilities and doctors to have admitting privileges at local hospitals. Neither was necessary, as abortion is among the safest medical procedures and, in the rare case of an emergency, a woman would be taken to a hospital emergency room, which does not require admitting privileges. The outpatient hospital standard was aimed at driving abortion providers out of business, because it would be too costly to upgrade their clinics. The admitting privileges law was designed to make it impossible for doctors to perform abortions at clinics, as most doctors don’t admit enough patients to local hospitals to gain admitting privileges.
Nonetheless, these new laws, which supporters of abortion rights dubbed Targeted Regulation of Abortion Providers (TRAP) laws, mushroomed, along with others that included waiting periods. According to the Guttmacher Institute, states enacted more abortion restrictions between 2011 and 2015 than they had in the previous 15 years, for a total of 288 state-level regulations in five years.
The effects of TRAP laws on abortion access were immediate and devastating, especially in the South and Midwest, which saw a disproportionate share of these restrictions. According to Guttmacher, “The 10 states that enacted at least 10 new restrictions together account for 173, or 60%, of the 288 new abortion restrictions adopted over the last five years.”2 In total, it’s estimated that more than 160 abortion clinics across the United States have closed since 2011.3
In no state were these TRAP laws felt more acutely than in Texas. There were more than 40 abortion clinics in the state before the state legislature passed a law requiring all clinics to meet hospital-like building standards and abortion providers to have admitting privileges at a hospital within 30 miles of a clinic. As a result, more than half of the state’s abortion clinics closed, bringing the total number of clinics to 19 in a state with more than 5 million women of reproductive age. Predictions were that, if the laws were allowed to stand, the state could be left with as few as 10 clinics.
There were no clinics left open in the western portion of the state between San Antonio and El Paso and only one clinic, Whole Woman’s Health, left open in the largely impoverished Rio Grande Valley in southern Texas. Whole Woman’s Health had to close because it couldn’t meet the building code regulations but was able to reopen after a judge’s injunction. Other clinics, and their patients, weren’t so lucky. There were reports of desperate women buying the abortion-inducing drug misoprostol at flea markets or crossing the border into Mexico to buy it over the counter in an attempt to self-induce abortions.4
Whole Woman’s Health, represented by the Center for Reproductive Rights, successfully got its challenge to the law to the Supreme Court. In June, the Court ruled in Whole Woman’s Health v. Hellerstedt that the provisions of the Texas law constituted an undue burden on women’s access to abortion and therefore were unconstitutional. Importantly, the Court said that in determining the constitutionality of these TRAP laws, courts have “an independent constitutional duty” to review the purported health benefits of the regulations and weigh them against the burdens they impose. “It is beyond rational belief that [the Texas law] could genuinely protect women’s health,” wrote Justice Ruth Bader Ginsberg, who noted that limiting access to safe and legal abortion would actually harm women by forcing them to “resort to unlicensed rogue practitioners.”5
The legal significance of the Whole Woman’s Health decision is that states can no longer claim that laws protect a woman’s health without offering empirical evidence of their claim. The decision was a “monumental victory for supporters of legal and accessible abortion,” Carol Joffe, a professor in the Advancing New Standards in Reproductive Health (ANSIRH) program at the University of California, San Francisco, wrote in Contraception.6 In the short run, the decision means that the shuttered Texas clinics will be allowed to reopen and that similar TRAP laws in other states are likely unconstitutional. “At least under the present court configuration, these laws will need to have compelling evidence,” Joffe told Conscience.
But it’s the long-run impact of the decision on the abortion rights movement that may prove even more significant. “This is the biggest win we have had in reproductive rights in a generation,” Amy Hagstrom Miller, president of Whole Woman’s Health, told Conscience. Joffe agreed that it was a “shot of adrenaline for the pro-choice movement,” noting that the case both caused an enormous mobilization of pro-choice activists, especially among younger women associated with reproductive justice movements, and took advantage of that mobilization.
But both advocates of abortion rights and providers caution that the victory, while important, doesn’t signal the end of the struggle over abortion. “The anti-abortion movement will come up with other strategies,” warned Joffe. She pointed to measures that shift the focus from women back to the fetus, including a law in Indiana that requires the burial or cremation of fetuses, which could add $2,000 to the cost of a $400 abortion. She said other restrictions to watch include 20-week abortion bans under the scientifically unproven pretense that fetuses feel pain, and attempts to ban dilatation and extraction, the most common second-trimester abortion procedure.
Challenges remain for abortion providers as well. Hagstrom Miller notes that many of the shuttered Texas clinics may face difficulties in reopening that include finding new clinic space and staff. Nationally, more than 160 clinics have closed as a result of TRAP laws, and many may struggle to reopen in what providers call an increasingly hostile environment. Hagstrom Miller also warned just after the decision of an uptick in the harassment of clinic personnel by state and local authorities, including repeated disruptive inspections.7
Wayne Shields, president of the Association of Reproductive Health Professionals, says that while the dynamics of the abortion battle have shifted as a result of the decision, laws that regulate what providers say about abortion remain a problem. “The next step is dealing with regulations that require providers to use nonevidence– based language that gives false information about the impact of abortion,” he said. Despite the continued challenges posed by anti-abortion forces, however, Joffe writes that Whole Woman’s Health is a “significant game-changer in America’s longstanding abortion conflict.”8