Introduction and History
The Supreme Court’s decision last June in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), was a significant victory for reproductive rights. That decision was also the death knell for the so-called “TRAP” laws (short for “targeted regulation of abortion providers”). For example, Texas had passed sweeping legislation which required, among other things: (1) doctors who provide abortion services to obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic; and (2) every health care facility offering abortion care to meet building specifications to essentially become mini-hospitals (also known as ambulatory surgical centers, or ASCs).
Some thought that Hellerstedt would end the abortion wars and that there would be a reasonable accommodation between the competing sides. Unfortunately, the Hellerstedt victory was short lived. The election of President Trump five months later emboldened those who seek to effectively outlaw abortion or restrict it. Laws have been proposed, or been enacted, that would, for example, require a woman seeking an abortion to get “permission” from her sex partner.
In 2016, 1218 provisions were introduced relating to reproductive rights and 44 new abortion restrictions were enacted. Since the mid-term elections in 2010 the states have adopted a total of 334 new abortion restrictions constituting 30% of all restrictions since Roe in 1973.
If these laws are upheld, reproductive rights will not be turned back 100 years. They will be turned back to the Roman Empire. Until now, the federal and state courts have been staunch protectors of reproductive rights. Will that continue? After all, as the fictional Mr. Dooley said, “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” (Finley Peter Dunne, 1901).
With the change of administration in Washington, the words spoken by Justice Blackmun almost 28 years ago are prophetic, “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.” Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989).
The battle is being fought in the state courts, on state constitutional grounds of the right to privacy. In Florida, Supreme Court Justice Barbara Parente recently wrote a trail brazing decision, relying exclusively on the state’s constitutional grounds of the right to privacy. The Court reinstated a preliminary injunction holding that a Florida abortion restriction was presumptively unconstitutional as a violation of the right to privacy. See Gainesville Woman Care, LLC v. State of Florida, __So.3d__, No. SC16-381 (Fla. Decd. February 16, 2017).
In addition to Florida, the courts relying on state constitutional grounds include Alaska, California, Iowa, Minnesota, Mississippi, Missouri, Montana, New York and Tennessee. These all point to the fact that at the time that the state constitutions were adopted state laws permitted abortion and did not consider a fetus to have any legal status.
In Kansas, in Hodes & Nauser, MDS, P.A. v. Schmidt, 368 P.3d 667 (Kan. App. 2016) an evenly divided Court of Appeals affirmed a preliminary injunction against a state restriction on abortion on state constitutional grounds. The case was argued before the Kansas Supreme Court on March 16, 2017. (Case No. 114,153). Media reports of the oral argument suggest that the Court will affirm and find a state constitutional right.
This is extremely important. We do not know the views of the incoming Justice but we can presume that he passed Trump’s litmus test on abortion. Therefore if Roe is overturned, abortion rights will not be affected in any state that has relied on its state constitutional law.
To understand where we are and where we should be going a few pages of history provide some guidance.
Most people believe that the 20th century was the greatest period in history for the advancement of women’s rights and equality. After all, it was then that women were finally found fit to vote. In the 19th century the U.S. Supreme Court held that a woman had no right to practice law but abortions were readily available to them.
Had twentieth century doctors known the history of abortion— that the real reason for the nineteenth century abortion ban was the danger of infection and death due to the lack of antiseptic procedures and the need to protect the patient—“there would have been no need for Roe v. Wade.” Hearings on Proposed Constitutional Amendments on Abortion Before the Sub-committee on Civil and Constitutional Rights of the H. Committee on the Judiciary, 94th Cong. 2, 35-36 (1976) (statement of Professor Cyril W. Means, Jr.).
Legal Abortions (1250-1803)
It should be noted that the practice of abortion has been common throughout history. Records show that the Romans relied on the juice of a plant to induce abortions, while the Greeks employed an herb for the same purpose. The central issue, even at common law, was at what point a fetus became a person.
The doctrine of quickening was originally developed by St. Thomas Aquinas in the twelfth century. Aquinas taught that the fetus did not have a soul until the point of quickening, that fetal movement should be used to differentiate between pregnancy stages, and that abortion prior to this point was not the same as killing a person. Once abortion fell within the jurisdiction of the common law courts, the quickening doctrine was adopted as the legal standard for differentiating between legal and illegal abortions.
Abortion Becomes a Crime (1803-1900)
After the United States gained its independence, there is no evidence to suggest that abortion was treated as a crime during the first decades of the new nation. Instead, reform movements in America sought to adopt laws that lacked the “brutality of the English criminal code.” When the first reported abortion cases took place in Massachusetts in 1812, the Supreme Judicial Court dismissed the charges when the prosecution failed to prove that the woman had quickened.
In 1821, Connecticut became the first state to ban post-quickening abortions. The primary purpose of the law was to prosecute abortionists, rather than women. In practice, charges were only brought when a woman died or was grievously injured. In the following decade, Missouri, Illinois, and New York legislators adopted laws with wording similar to the Connecticut statute.
The earliest American abortion laws were all designed to protect the woman rather than the fetus. In the two decades after Connecticut passed its law, no state abortion law punished a pregnant woman. In fact, a New Jersey case in 1858 explicitly stated that the legislature’s intent was not to prevent abortions, but rather to guard the “health and life of the mother.”
As the idea that abortion was common took hold, so did an awareness that existing abortion procedures were dangerous. Abortions performed in New York as late as 1884, by competent physicians during the early stages of pregnancy, were ten to fifteen times more dangerous than childbirth.
During the nineteenth century the erosion of the quickening doctrine was replaced with the belief that a fetus is a living human person from the moment of conception. Many states introduced statutes that made abortion illegal at all stages of pregnancy. In 1829, New York enacted penal provisions making abortion of a viable fetus a crime. It held that every person who administered to a pregnant woman any medicine, drug or substance, or used any instrument or other means, with intent to destroy the child, unless it was necessary to preserve the life of the woman, was guilty of manslaughter in the second degree. (Procurement of a miscarriage, unless necessary to preserve the life of the mother, was a misdemeanor.)
In 1860, Pennsylvania made it a felony offense to attempt the abortion of a fetus at any period during gestation. In 1872, New York amended its anti-abortion laws, banning abortion advertisements, prohibiting advising women to have an abortion, and making it a crime for a woman to agree to an abortion. These laws are representative of the changes that were taking place throughout the country.
Abortion is Illegal (1900-1960)
By the early twentieth century, anti-abortion laws were firmly entrenched, and the chances of securing their repeal seemed impossible. Until 1967, forty-nine states and the District of Columbia made abortion a felony offense.
In 1962, Sherri Finkbine, a mother of four and well-known television personality, sought an abortion after she had unintentionally taken thalidomide and faced the very real possibility that her child would be born deformed. In this instance, “[a]lthough there was a universal chorus of horror against the drug itself, hardly a newspaper or pulpit in the country attacked the hypocrisy of the system that denied this mother the right to protect herself and her family, and eventually forced her to seek an abortion in Sweden.” Lawrence Lader, Abortions 90 (1966).
Forty-nine of fifty-one American jurisdictions (fifty states, plus the District of Columbia) had criminal abortion statutes, limiting abortions to the single purpose of saving the life of the mother.
Violations of abortion laws carried serious repercussions for all parties. However, penalties were harshest for physicians, who confronted the possibility of losing their licenses to practice and facing criminal charges. In fifteen states, the punishment for providing an abortion was a maximum sentence of ten years’ imprisonment.
In 1962, the American Law Institute published its Model Penal Code, which included an abortion statute, extending the justifiable reasons for abortion to include the risk of grave impairment to the mother’s physical or mental health, the risk of bearing a child with a grave physical or mental defect, and pregnancy resulting from rape, incest, or other felonious intercourse. These reforms were supported by the medical profession. Colorado became the first state to follow the ALI’s recommendation by reforming its abortion law in 1967.
From 1966 through 1972, the year before Roe was decided, thirteen states also amended their abortion statutes along the lines suggested in the Code. Alaska, Hawaii, New York, and Washington repealed their abortion laws altogether. The public debate that took place in New York during the late 1960s typified the abortion movement’s struggle. The Governor’s Commission Appointed to Review New York State’s Abortion Law issued its report in March 1968 and was instrumental in changing the law in New York. In fact, it was the underpinning for Roe.
All members of the Commission agreed that abortion to preserve the mother’s life was justifiable, but a substantial majority found this single ground too limited. They felt that this lone justification prevented doctors from practicing what they believed to be good medicine, and placed a “physician in an intolerable conflict between his medical duty to his patient and his duty as a citizen to uphold the law.” In the past, New York doctors had attempted to circumvent the State’s abortion laws by using the diagnosis “psychiatric indication” (threatened suicide), to justify abortions, even though the actual suicide rate of pregnant women was much lower than that of women of the same age who were not pregnant. Despite these justifications, prior to the liberalization of New York’s abortion law, only four-hundred legal abortions were performed within the State annually.
On July 1, 1970, the New York Legislature passed the “justifiable abortional act,” which amended Section 125.05 of the New York Penal Law, providing that “[t]he submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.” In 1972, the New York Legislature voted to repeal the statute, but Governor Rockefeller vetoed the bill.
The Decision in Roe and its Aftermath (1973-1982)
The Supreme Court paved the way for women’s health to be used to restrict access to abortion. Through a series of cases, the Court established that the state had an interest in protecting women’s health (Roe), lowered the standard of review for restrictions on abortion (Casey), and then determined that legislatures were best positioned to determine what was best for women’s health (Gonzales).
By 1973, abortion statutes had been challenged on several constitutional grounds, including vagueness, privacy, and equal protection of the laws. Conservative legislators began erecting a series of laws to block access. Based on these developments, the Court granted certiorari to hear two cases challenging the right of government to limit access to abortion. In Roe v. Wade, the Court considered a challenge to a Texas law outlawing abortion in all cases, except those in which the life of the mother was at risk. The second case, Doe v. Bolton, focused on a Georgia law that allowed women to terminate a pregnancy only if either her life or her health were in danger. In both cases, lower federal courts had declared the statutes unconstitutional, holding that denying a woman the right to decide whether to carry a pregnancy to term violated basic privacy and liberty interests enumerated by the Constitution.
There followed 25 years of legal abortion. No sooner had Roe been decided than the Supreme Court grappled with a host of issues that arose from its landmark decision. These involved requirements of informed consent, parental consent, spousal consent, and waiting periods for women seeking abortions. The Court generally struck down most of these laws regulating abortion and upheld only a few that did not significantly limit a woman’s right to terminate her pregnancy.
Abortion politics entered the election arena as politicians began to voice their views, to improve their chances of election or reelection. President Gerald Ford supported the passage of a constitutional amendment to allow the states to regulate abortion policy. In the early 1980s, President Ronald Reagan approved a proposed anti-abortion constitutional amendment and a “right to life” bill. However, neither of these measures passed in Congress.
Although Roe remained controversial, the Court remained steadfast in its adherence to the decision until 1989 when it decided Webster v. Reproductive Health Services.
Chief Justice Rehnquist, in upholding the statute in question, stated that the law’s declaration that life begins at conception did not contradict Roe because the declaration was contained in the preamble, and “this [did] not by its terms regulate abortion.” The majority also ruled that prohibiting the use of government workers, or facilities to perform abortions, was acceptable because the right to an abortion established in Roe did not include the right to government assistance in obtaining one. The decision also held that the requirement of viability testing at twenty weeks was constitutional.
Casey abandoned a strict scrutiny analysis when considering abortion. Despite this significant change in the abortion doctrine, the Court reaffirmed several sections of the holding in Roe in Planned Parenthood of Southeastern Pennsylvania vs. Casey which reaffirmed a woman’s right to have an abortion before viability without “undue interference from the State,” and that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Second, the Court held that a state may restrict abortions after viability, so long as exceptions were made for the protection of the woman’s “life or health.” And finally, that the states have a “legitimate interest” in protecting both the health of the woman and the “fetus that may become a child.”
The Decision after Casey
If Casey “opened the door to more regulation than had been acceptable under Roe,” the Supreme Court’s 2007 decision in Gonzales v. Carhart blew the door off its hinges. The holding was seen as a victory by anti-abortion forces, who saw an opportunity to “chip away” at the abortion doctrine established by Roe. In the 2010 midterm elections there was a political shift as newly elected governors and legislators were solidly anti-abortion causing advocates of abortion rights to brace for a year of even tougher battles than usual. A record-breaking number of abortion regulations and restrictions were passed by the states in 2011 and 2012.
In spite of these setbacks, it is important to note that Carhart reiterated the fundamental holding of Roe: Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” The majority also wrote that the undue burden standard remains the test to judge the constitutionality of pre-viability abortion regulations.
Seizing upon language in Carhart and Casey, which allowed some state regulation of abortion providers, members of various state legislatures then sought to implement major restrictions on abortion procedures and access to reproductive healthcare. (The TRAP laws struck down in Texas by Hellerstedt are just one example of these restrictions.)
It was rather clear what the intentions behind the TRAP laws were. A few months ahead of signing the legislation into law, Texas governor Rick Perry declared at an anti-abortion rally, “an ideal world is one without abortion. Until then, we will continue to pass laws to ensure that they are as rare as possible.” In July 2015, Texas state representative and the legislation’s author Jodie Laubenberg stated “I am so proud that Texas always takes the lead in trying to turn back what started with Roe v. Wade.”
An Overview of Abortion Restrictions in the States
Fifteen states have near-total criminal bans on abortion that are clearly unconstitutional. Louisiana and Utah enacted the bans in 1991 and 2013, almost three decades after Roe was decided. Mississippi, North Dakota and South Dakota have “trigger” laws that would immediately result in a criminal ban on abortion should Roe be overturned.
One type of near-total ban which several states have considered, are “personhood” bills that would amend a state’s constitution, to grant legal “personhood” rights to a fetus from the point of fertilization. These bills are intended to impose near-total bans on abortion; however, none has been enacted.
In 2011, Ohio became the first state to consider a bill that would ban abortion as soon as a fetal heartbeat could be detected. This “heartbeat” bill, while not technically a near-total ban, would effectively outlaw abortion in most circumstances, with no exceptions for rape, incest, or fetal anomaly because a fetal heartbeat can be detected as early as six weeks into a pregnancy. These laws are clearly unconstitutional. In 2013, North Dakota enacted a “heartbeat” law that would have made abortion illegal as early as six weeks. The District Court ruled the law unconstitutional in April 2014.
In five states, women will be told that having an abortion means they are more likely to get breast cancer despite the fact that this has been definitely refuted by the National Cancer Institute of the National Institutes of Health.
In eight of the twenty-two states that require providers to talk about the psychological response and how a woman is likely to feel after the abortion, she will only be told about the possible negative responses, despite the evidence that many women actually feel relief.
Despite Roe’s prohibiting states from banning abortions in the first trimester, the majority of states have unconstitutional and unenforceable bans that could outlaw abortion as early as the twelfth week of pregnancy with no exception to protect a woman’s health. Nebraska enacted a pre-viability abortion ban that prohibits access to abortion after twenty weeks, and five states have followed this path. While the original Nebraska ban rests on the claim of fetal pain as its justification, its sponsors readily admit that it was intended as a challenge to Roe. In fact, the true intent of these laws has become clearer as several states introduced twenty-week bans that were not predicated on fetal pain. Instead, they ban pre-viability abortion restrictions disregarding Supreme Court precedent.
Since 2005, no new scientific discoveries have been published to dispute these findings. Thus, the “substantial evidence” referenced by the Nebraska bill is lacking in evidence, and is not supported by the majority of the medical community.
A state cannot simply get around the issue of viability by amending the language of its laws to say, for example, that viability takes place at twenty weeks. The Tenth Circuit rejected the attempt of the Utah legislature to do so in Jane L. v. Bangerter. The opinion cited the Supreme Court’s decision in Danforth, which held that the medical community should be the only ones determining at what point viability occurs, and not the courts or the legislature. (The Tenth Circuit thus struck down the ban, noting that the law prohibited abortions of fetuses that may not have been viable.)
2016 & 2017
2016 was not a good year for reproductive rights, even in the wake of the Hellerstedt victory. If we look to the individual states, and to the current administration in the era of Trump and Pence, this is what should worry women: Eighteen states have enacted 50 new abortion restrictions and in the past six years alone 338 new abortion restrictions have been passed. The majority of women live in a state that is considered hostile or nearly hostile to abortion rights. Under the Trump/Pence administration and the Republican controlled Congress, assaults on abortion access are likely to get worse.
Last year, Indiana, Louisiana, and Texas all attempted to enact rules that fetal tissue be cremated or buried. These have been blocked by ongoing court cases, but their fate could be decided in 2017. For years, men have enacted abortion restrictions under the guise of protecting women’s health. Ohio, South Carolina, and South Dakota have all enacted new 20-week abortion bans. Abortions after 20 weeks are extremely rare and are mostly obtained by woman who make the decision to terminate because of fetal abnormalities or their own health. Yet, President Trump describes the practice as babies being ripped from their mother’s wombs just prior to birth.
In 2017, we can predict that more states will join the 18 in this country who already have 20-week abortion bans. Arkansas has pre-filed a bill that will ban D&E abortions, making an exception for pregnancies that pose a risk to the mother’s health but explicitly excluding mental health concerns. Estimates suggest that more than 90% of abortions in this country take place in the first trimester. The factors that lead to women waiting until the second trimester are often brought about by laws that require women to travel hundreds of miles to see a provider or the unavailability of funds to cover the cost of an abortion.
States, such as Kentucky have enacted laws which require doctors providing abortions to first perform an ultrasound of the fetus and try to show and describe the image to the patient — even if she objects. This informed consent law requires a woman to meet in person or by video with a physician before terminating a pregnancy.
In Indiana, then Governor Pence signed a bill banning abortions motivated solely by the mother’s objection to the fetus’s race, gender or disability. The bill also placed new restrictions on doctors by requiring physicians to provide certain information to patients seeking an abortion. Physicians are required to offer perinatal hospice care to a pregnant woman who is considering an abortion because the unborn child has been diagnosed with a fetal anomaly. After offering the perinatal hospice care, physicians are required to obtain documentation as to the informed consent of the abortion.
The Scariest Abortion Restrictions To Watch For In 2017
1. “Father Permission” Bills
One of the most frightening pieces of proposed legislation is pending in Oklahoma. The legislature has proposed a bill that would require pregnant women who are seeking an abortion to get consent from the sexual partner who impregnated them. “A pregnant woman seeking to abort her pregnancy shall be required to provide, in writing, the identity of the father of the fetus to the physician who is to perform or induce the abortion,” the bill reads. “If the person identified as the father of the fetus challenges the fact that he is the father, such individual may demand that a paternity test be performed.”
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) clearly holds that such legislation is unconstitutional. But four members of the Court were of a contrary view, and Justice Alito wrote a dissent when sitting on the panel on the Third Circuit, on the grounds, among others, “that a man has a fundamental interest in preserving his ability to father a child” and “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus.” 947 F.2d 682, 725, 726 (Alito, J., dissenting).
2. Fetal burial rules
Over the past two years, five states – Arkansas, Indiana, Louisiana, North Carolina and Texas – have enacted legislation that require burial or cremation for fetuses. The legislation is part of a wave of such laws that followed the undercover videos targeting Planned Parenthood. Supporters say the purpose is to provide dignity for “unborn infants.” Americans United for Life has proposed what it calls the Unborn Infants Dignity Act.
Funeral directors are perplexed by this legislation. “Fetal death cremation could approach $400, $450,” says a Texas director. “Just a grave space alone in a little moderate cemetery will cost at least $500, $550.”
“It’s another way to close clinics,” said Elizabeth Nash, senior state issues manager with the Guttmacher Institute. “It’s requiring clinics to contract with another vendor who may not be interested.”
A federal judge blocked Texas from requiring that fetal remains to be buried or cremated. U.S. District Judge Sam Sparks said the new rule placed burdens on access to abortion that “substantially outweigh the benefit.” Federal courts previously blocked similar measures in Louisiana and Indiana.
3. 20 Week Abortion Bans
Despite Roe’s prohibiting states from banning abortions in the first trimester, “[twenty] states have unconstitutional and unenforceable bans that would outlaw abortion as early as the twelfth week of pregnancy, with no exception to protect a woman’s health.” Nebraska enacted a pre-viability abortion ban that prohibits access to abortion after twenty weeks, and thirteen states have followed this path. While the original Nebraska ban rests on the claim of fetal pain as its justification, its sponsors readily admit that it was intended as a challenge to Roe v. Wade. In fact, the true intent of these laws has become clearer as several states introduced twenty-week bans that were not predicated on fetal pain. Instead, they ban pre-viability abortion restrictions disregarding Supreme Court precedent.
Ohio, South Carolina and South Dakota have all enacted new 20-week abortion bans. These abortions are extremely rare and involve women who decide to terminate at that point because of fetal abnormalities or threats to their own health.
Similar bans—in Arizona and Idaho—were struck down by federal courts in 2013 and 2015, respectively. And in Georgia, the ACLU is currently appealing a ruling upholding the law. But new states are pushing the bans: Bills are under consideration in Pennsylvania and Michigan. If passed, this would extend 20-week abortion bans to a total of 19 states.
Although courts have consistently rejected D&E bans as anything but a blatant pre-viability abortion ban, that unfortunately doesn’t mean that conservative states are done proposing them.
4. “D&E” bans
Dilation and evacuation abortions, or D&E, are the most common procedure used in a second-trimester abortion as well as after a miscarriage. In 2016, four states (Alabama, Louisiana, Mississippi and West Virginia) all banned D&E abortions, though several of those laws are not in effect because of ongoing legal cases. In 2017, a representative in Arkansas prefiled such a bill. Courts have consistently rejected D&E bans as anything but a blatant pre-viability abortion ban, that unfortunately doesn’t mean that legislators are done proposing them.
It is depressing to think about the barriers to reproductive justice, the backlash against the gains of the women’s movement, the failure of governmental authorities to enforce laws that guarantee women’s rights and the entrenched traditions and political views that encourage politicians to deny funding for women’s reproductive health and to enact laws designed to prevent the closing of clinics that provide necessary services.
That’s where we are today, and a little glimpse into the horizon. There are new challenges and I predict that the federal courts will remain steadfast in supporting woman’s rights in spite of Republican legislative efforts and that it will be the state courts who will be the leaders in the fight for women to control their own decisions and destinies.
The Erosion of Reproductive Health Choices in the U.S., A Look Back and a Peak Forward, Sybil Shainwald, Panelist – Reproductive Rights and the Politics of Women’s Heath in the Era of Trump, March 27, 2017, Strand Books, New York, NY