Threats to Abortion Rights Should Be Challenged
American Civil Liberties Union At Issue: Should Abortion Rights Be Restricted? Auriana Ojeda
A woman’s decision whether or not to bear a child is one of the most intimate and important decisions she will ever make. Like decisions about contraception, marriage, and child-rearing, the decision to continue or to end a pregnancy is protected from government interference by the U.S. Constitution. Securing full reproductive freedom for all women, regardless of age or economic status, remains among the American Civil Liberties Union (ACLU) highest priorities.
The long march toward reproductive rights
The road to a woman’s right to choose has been a long and arduous one. Although abortion was not a crime in this country until the mid-1800s, by the century’s end, it was banned in every state. By 1930, an estimated 800,000 illegal abortions were taking place annually, resulting in 8,000-17,000 women’s deaths each year. The terrible suffering of tens of thousands of women and their families from botched, back alley abortions moved early reformers like Alan Guttmacher to call for legalization.
A major breakthrough occurred in 1965 when the U.S. Supreme Court struck down a Connecticut law that made it illegal even for married couples to obtain birth control devices. In Griswold v. Connecticut, the Court ruled that the ban on contraception violated the constitutional right to “marital privacy.” In 1972, the Court extended the right to use contraceptives to all people, married or single. These cases laid the foundation for a constitutional challenge to abortion bans.
Between 1967 and 1971, under mounting pressure from the women’s rights movement, 17 states decriminalized abortion. Public opinion also shifted during this period. In 1968, only 15 percent of Americans favored legal abortions; by 1972, 64 percent did. When the Court announced its landmark 1973 ruling legalizing abortion in Roe v. Wade, it was marching in step with public opinion.
But the backlash was swift and fierce. Anti-choice forces quickly mobilized, dedicating themselves to reversing Roe. In 1974 the ACLU established its Reproductive Freedom Project to advance a broad spectrum of reproductive rights and to resist the anti-choice movement’s efforts to undermine women’s privacy and equality.
The post-Roe struggle
The landmark Roe v. Wade decision was based on the constitutional right to privacy-a right the Court found “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.
The right to choose has dramatically improved the health of individual women by freeing them from the dangers of illegal abortions. It has also improved the quality of women’s lives generally, for, as the Supreme Court stated in reaffirming Roe v. Wade in 1992, “The 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 Supreme Court’s 1992 decision in Planned Parenthood v. Casey was the next legal milestone for reproductive choice. In the face of massive anti-choice pressure, the Court preserved constitutional protection for the right to choose. At the same time however, the Court adopted a new and weaker test for evaluating restrictive abortion laws. Under the “undue burden test,” state regulations can survive constitutional review so long as they do not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The Casey decision has forced the ACLU and other pro-choice groups to fight legal battles in courts all over the country over whether or not a particular restriction constitutes a “substantial obstacle.” In many cases, the courts have been cruelly insensitive to the problems of real women.
More burdens for low-income women
For decades, opponents of choice have pursued a strategy of imposing special burdens on the most politically powerless women. The Medicaid program, through which the government provides health services to needy people, has long covered all other pregnancy-related services, but the federal government and most states severely restrict Medicaid funding for abortion. As a result, low-income women often find it difficult, if not impossible, to exercise their constitutional right to have safe and legal abortions.
In 1980, the Supreme Court upheld this discriminatory scheme, but in a series of state constitutional cases, advocates for low-income women have successfully argued that when the government provides funding to support the exercise of constitutional rights, it must fund all options evenhandedly, leaving the ultimate choice where it belongs-in the hands of the pregnant woman. These state court victories have made it possible for 40% of Medicaid-eligible women in the U.S. to have access to public funding for abortion.
Women who rely exclusively on the federal government for their health care coverage cannot benefit from state constitutional arguments, however. Through various restrictions on federal appropriations, Congress denies abortion coverage to most federal employees and their dependents, military personnel and their dependents, federal prisoners, Peace Corps volunteers, Native American women, and low-income women who reside in Washington,
D.C. Congress has thus created a two-tiered health care system in which women who depend on the government do not have the same rights as those who can afford an abortion or who have private insurance. In 1991, the Supreme Court upheld regulations forbidding the staffs of federally funded family planning programs from even mentioning abortion as a medical option. This “gag rule” on abortion counseling and referral never took effect because former president Bill Clinton rescinded the regulations, but similar gag rules continue to be proposed and have been enforced against organizations that receive U.S. dollars to provide family planning services overseas.
The government has even tried to use its spending power to pressure women not to have children. Under the mantle of “welfare reform,” state governments are experimenting with policies known as “child exclusions” or “family caps.”
Aimed at discouraging childbearing by low-income women, child exclusions deny subsistence benefits to children born into families already receiving aid. Because the government has no more business punishing childbearing than restricting abortion, the enforcement of child exclusions violates low-income women’s right to choose.
Targeting young women
More than half of the states currently enforce laws that require minors to get permission from their parents or from a court before they can obtain abortions, and many state and local governments continue to deny teenagers the information and services they need to avoid unwanted pregnancies.
Parental involvement laws serve only to deepen the desperation of teenagers already in crisis. While most teenagers who are considering abortion talk to their parents about their decision, some cannot or will not go to their parents no matter what the law says. They fear physical abuse, violence between their parents, being thrown out of the house, or triggering a parent’s drug or alcohol problem, among other scenarios. The alternative of going to court for judicial authorization for an abortion is often daunting or futile, and increasing numbers of minors are traveling across state lines for abortions or resorting to dangerous illegal or self-induced procedures.
The Supreme Court has upheld parental consent and notification laws, but has required that they conform to specific constitutional standards. Careless legislative drafting has led to successful federal challenges. These laws are also beginning to fall under the state constitutions. In 1997, the Supreme Court of California became the third state high court in the nation to hold a parental consent law inconsistent with the state’s constitutional privacy protections.
Those who have long sought to make abortion inaccessible to minors are now stepping up their attacks on minors’ access to contraception and sexuality education. Proposals to require parental consent for contraceptive services to minors were debated in the 1997 and 1998 Congressional terms and have been cropping up in the state legislatures. If these proposals become law, they will scare many sexually active teenagers away from the family planning clinics that may be their only source of confidential reproductive health care, leaving them vulnerable to higher rates of unintended pregnancy and sexually transmitted diseases including HIV/AIDS.
The proponents of “abstinence-only” sexuality education made gains in 1996 when Congress appropriated $250 million over five years for educational programs that have as their “exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity.” Because such programs must omit any instruction on how to make sex safer, they leave sexually active teenagers unprepared to protect themselves and their partners. While it is important to stress the benefits of abstinence, it is equally important to address the pressing needs of students who reject that lesson.
Banning safe abortion procedures
The latest tactic of the anti-choice movement is to promote so-called “partial-birth abortion” bans. Although these bans are the most widely debated abortion restrictions of the past decade, they are perhaps also the least well understood. The bans’ proponents have launched an intensive campaign to portray them as directed against a “single,” “late,” “gruesome” abortion procedure. The media have adopted and parroted this description. Yet it is
wholly inaccurate. Doctors all over the country have testified, and courts all over the country have found, that the language of the bans is broad enough to encompass the safest and most common methods of abortion. Because the bans are thus directed more at abortion in general than at any discrete procedure, they threaten the core right of reproductive choice.
Congress has twice passed, and former president Clinton has twice vetoed, the federal “partial-birth abortion” ban. In his 1996 veto message, Clinton said he could not sign a bill that reflected “Congressional indifference to women’s health.”… Meanwhile, as the debate drones on in Washington, more than two dozen states have enacted copycat bans.
Federal and state constitutional challenges to these state bans are underway throughout the country. In the overwhelming majority of cases, the courts have invalidated the bans. Court after court has identified three main constitutional flaws. First, the language of the bans is so vague that doctors cannot tell with any certainty what conduct is forbidden. Second, the bans lack adequate exceptions to protect women’s lives and health. Third, the bans unduly burden the right of reproductive choice by prohibiting the performance of safe and common abortion procedures. These resounding victories in the nation’s trial courts are under review in several courts of appeal.
Erosion of access to reproductive health services
Gaining access to reproductive health services has become increasingly difficult. The states have enacted a web of restrictions that make it more difficult and costly for women to obtain abortions. They include requirements for biased counseling that is intended to dissuade women from having abortions; mandatory waiting periods; and excessive, medically unnecessary regulation of abortion providers.
Another barrier to access is the severe shortage of abortion providers. Frightened by anti-choice harassment and violence, many doctors have stopped providing abortions altogether. Eighty-six percent of U.S. counties now have no abortion provider. The shortage is compounded by a persistent lack of adequate abortion training in the nation’s medical schools. There are not enough young doctors with both the skills and the courage to step into the void.
Many hospitals have ceased to provide abortion as well. The increasingly frequent mergers between religiously affiliated hospitals and non-sectarian hospitals exacerbate the problem. Such mergers often result in the reduction of reproductive health services because of doctrinal restrictions that the religiously affiliated partner attempts to impose on the new merged entity. Typically, these doctrinal restrictions prohibit hospitals from providing abortion, sterilization, contraceptive services, AIDS prevention services, many types of infertility treatments, and even the “morning-after pill” for rape victims.
In 1989 Justice Harry Blackmun, who wrote the opinion in Roe v. Wade, issued a heartfelt dissent from a decision upholding the constitutionality of an array of abortion restrictions. He expressed his fear that, in allowing the government to intrude further and further into the private realm of decisions about reproduction, the Court “casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children.”
The darkness has not yet descended. But the defense of women’s reproductive freedom requires constant vigilance.