Legal scholars, the general public, and social justice activists have been watching the United States Supreme Court closely the past two weeks.
The court has issued major rulings in several high-profile decisions on topics like same-sex marriage, the death penalty and the Affordable Care Act.
Women’s rights activists have tuned in to see what the court would do with three abortion access cases. Many were relieved when the court adjourned on June 29 without issuing an order in Currier v Jackson Women’s Health Organization, and that clinics will stay open in Texas, pending judicial review of restrictions there. These decisions, coupled with the court’s June 22 decision not to hear an appeal of Stuart v Camnitz, means that two state laws that restricted access to abortion will not go into effect.
In Currier, the Fifth Circuit’s ruling that Mississippi’s law was an unconstitutional burden to women stands. And in Camnitz, the court upheld a Fourth Circuit ruling that overturned a North Carolina law that required women seeking to terminate a pregnancy to undergo a mandatory ultrasound. The court’s refusal allows women in North Carolina better access to their rights of choice over health decisions.
While North Carolina legislators can no longer force women seeking abortion services to undergo an invasive ultrasound as part of their decision-making process, women in nine other states are still subject to similar restrictions.
The path-breaking 1972 decision, Roe v Wade, said that states could not ban abortion in the first trimester. The decision invited state regulation after the third month of pregnancy. This is an invitation states’ legislators have been eager to accept.
Here’s what reproductive rights activists should know: though we all watch the Supreme Court closely, this isn’t where the action is. The action is at the state level, and decisions by state legislators – though they affect only one area – underscore the threat to women’s choices in reproduction and other health issues.
Reproductive rights are being chipped away
Some states, like North Dakota and Nebraska, have sought to ban abortion outright. North Dakota enacted a ban on abortion after six weeks in 2014; Nebraska’s ban would have begun at 20 weeks. Neither included protections for the life of the mother or exceptions in the case case of rape. Both bans have been stayed by federal courts, and would certainly fall to constitutional challenge.
Most states, however, are enacting these smaller, but meaningful, restrictions on access to women’s health care, such as increased record-keeping requirements for doctors and clinics, and mandatory (sometimes faith-based) counseling prior to final decision-making.
In keeping with the high court’s 1991 Pennsylvania decision in Planned Parenthood v Casey allowing mandatory waiting periods prior to termination, several states are extending the length of that waiting period, to as long as 72 hours excluding weekends and holidays. Many states, too, are building on requirements for “informed consent” of women prior to termination, such as requiring that women listen to a fetal heartbeat or view the fetus via transvaginal ultrasound prior to abortion.
Further, zoning regulations, transfer and hospital privilege arrangements, and spending bills that de-fund family planning clinics are also all being used to stop access to abortion services.
Texas law now requires that all abortions be performed at ambulatory surgical centers, by doctors with admitting privileges at a hospital within 30 miles. The majority of abortions in the United States are performed early and are nonsurgical and thus unlikely to require hospital admission. However, many hospitals in Texas are religiously affiliated and deny admitting privileges to doctors who perform abortion. So, Texas law limits access to the most commonly used procedure, and the one safest for the mother.
It’s not just abortion
Texas is not alone, and abortion is not the only area of restriction on women’s health care.
From 2011 to 2013, 205 legislative restrictions were passed on women’s reproduction. In those three years, the states passed more restrictive laws than they had in the entire previous decade. In 2013 alone, 22 states passed 70 laws limiting access to reproductive health services.
In 2002, advocacy groups considered 13 states “hostile” to abortion rights. By 2013, that number had more than doubled; 27 states were now considered hostile environments for the exercise of the rights articulated in Roe.
Moreover, states are increasingly hostile to women who seek to keep their pregnancies and to be parents, as well as those who seek to avoid pregnancy.
There has been a marked increase, in the past five years, in the number of states that criminalize drug use by pregnant women, attempt to restrict access to safe and effective birth control like the IUD, refuse to mandate coverage of birth control via employer health plans, and criminalize naturally occurring and often tragic events, like miscarriage.
In the 30 years between 1973 and 2005, 413 women were prosecuted for fetal harm, in 44 states.
In the years since 2005, more than 250 similar cases have emerged. If this rate of prosecution remains unchecked, nearly 1,000 women will be prosecuted in the next 20 years – more than doubling the rate of intrusion on women’s reproductive lives in the years post-2005.
There is likely to be a ripple effect. Even one well-publicized case can have a chilling effect on women in the community who might otherwise seek help; women of color and women living in poverty are disproportionately impacted.
In spring 2014, the Tennessee legislature became the first political body to extend fetal protection law in a way that criminalized adverse outcomes in pregnancy.
Tennessee law now makes a mother’s drug use during pregnancy equal to assault against the fetus, and punishable by up to 15 years in prison. The state’s governor signed the bill even though it could be used to punish women who tried and failed to access addiction-related services. He signed the bill even though the American College of Obstetrics and Gynecology, the American Medical Association, the American Academy of Pediatrics and the American Nurses Association all oppose laws that would further criminalize maternal addiction.
And yet—the rate of legal abortion has been declining
The crazy thing about all of this regulation is this: the rate of legal abortion in the United States has been steadily declining for the past three decades. Although a majority of pregnancies are still unintended (for both married and single females), women have increasing access to relatively safe and effective birth control, and have a larger degree of autonomy over their reproductive capacities than they have had in the past.
Though unpopular with many conservatives, the Patient Protection and Affordable Care Act mandates coverage of a range of services that have helped to decrease unintended pregnancy and mitigate the negative consequences of these pregnancies. It also provides increased access to prenatal and postnatal care.
Given all of this, we might think that abortion politics are less salient for Americans than they previously have been, and that reproductive justice for women is rather assured.
We would be wrong.
Rather, we have seen increasing surveillance of women’s reproductive lives – and subsequent penalties – even when those penalties and surveillance don’t have salutary outcomes for women’s health. We have these laws even though they might not even have a positive impact for fetal health.
There has been debate among feminists lately about why this is happening. Some argue that a Fourteenth Amendment Equal Protection standard would have been a better base upon which to build reproductive rights; others aren’t so quick to jettison Roe.
These conversations are important, but it is clear that the courts have moved beyond them; the battle for reproductive rights is in the state legislatures. It is up to advocates to fight undue burdens on access.