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Why Can’t Women Control Their Own Destinies?
CLE Discussion by NYCLA’s Women in Law Committee & Young Lawyers Section
Sybil Shainwald, Esq. on May 1, 2015
Introduction and History
Since the 2010 mid-term elections the states have adopted 231 new abortion restrictions. Additionally, twenty-six new abortion restrictions were passed by fifteen states in 2014 and seven states have passed additional restrictions in 2015. [click here for 2015 State Abortion Laws]
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. The Guttmacher Institute estimates that sixty percent of American women live in states with legislatures that are openly hostile toward women’s reproductive rights.
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. It was in the 19th century that the U.S. Supreme Court held that a woman had no right to practice law but abortions were available. See Bradwell v. The State U.S. 83 U.S. (1872)
As Professor Cyril C. Means noted:
During the late seventeenth, the whole of the eighteenth, and early nineteenth centuries, English and American women were totally free from all restraints, ecclesiastical as well as secular, in regard to the termination of unwanted pregnancies . . .
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.” So testified Professor Means, before Congress in opposition to a proposed constitutional amendment to outlaw it.
Up until 1968, scholars had neglected to produce or analyze the history of abortion in Anglo-American law. Professor Means was a member of the Governor’s Commission Appointed to Review New York State’s Abortion Law and his exhaustive research was incorporated into that Report, which was the first history of abortion. The Report noted that abortion was not illegal in either England or America before the nineteenth century, and that even when abortion was banned in the mid 1800s, the purpose was solely to protect the life of the mother.
Although the Supreme Court’s decision in Roe v. Wade, is said to have “legalized” abortion in this country, what Roe actually did was return the law to what it had been up until the mid-19th century.
In 1973, Justice Harry Blackmum wrote in Roe v. Wade:
[i]t is undisputed that at common law, abortion performed before “quickening” – the first recognizable movement of the fetus in utero, appearing from the 16th to 18th week of pregnancy – was not an indictable offense.
Furthermore, Justice Blackmum referred to a “recent review” that argued that even post-quickening abortion was never established as a criminal offense under the common law. The review referred to was written by Professor Means, Jr.
The painstaking research of Professor Means, who examined the original common law decisions demonstrated that abortion was a purely ecclesiastical offense punishable only by spiritual penalties and that the secular crime of abortion was created by the imagination of Sir Edward Coke. Even Coke believed that only abortion after “quickening” – what the Roe Court called “viability” – should be punished criminally.
The American Medical Association (“AMA”) began a campaign to limit abortions in the 1850s. The AMA’s reasons were not predicated upon medical ethics or a belief that an unborn fetus was a life, but on health reasons. Due to the lack of antiseptic conditions during surgery, the medical profession viewed the operation as dangerous to the life of the mother and believed that it was safer to deliver a child than to chance infection during an abortion.
A. Legal Abortions (1250-1803)
It should be noted that the practice of abortion was 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.
B. 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 few 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.” Professor Means attributed this reasoning to the passage of the New York statutes in 1828. Thus, until the 1840s, state abortion laws were passed because of a greater recognition that abortion procedures were unsafe and a threat to the life of the mother.
There were several cases in the nineteenth century in which a Court even rejected the protection of fetal life as a purpose for banning abortion. This view necessitates an inquiry into the cause of the mid-nineteenth century spread of anti-abortion legislation designed to “protect” the unborn.
After 1840, abortions had increased, and rates rose from one abortion for every twenty-five to thirty live births at the turn of the century to one for every five or six by the middle of the nineteenth century.
The process of commercialization brought abortion to the forefront of public attention in the early 1840s. Members of the medical community competed fiercely for clients in the new abortion industry. As a result, advertisements quickly became common practice, appearing in urban and rural newspapers, popular magazines and journals. In addition, some abortionists even gained fame and public attention. For instance, Madame Restell of New York City was arrested in 1841 for performing abortions on a large scale. She was convicted of only minor infractions, and then went on to open several East Coast branches after the publicity provided a boost to her career.
Scholars began writing on abortion and describing the practice as common to “every village, hamlet, and neighborhood in the United States.” 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.
Arguments in opposition to abortion began to emerge within a segment of the medical profession at the newly founded American Medical Association which argued that the fetus was alive before quickening and that it possessed “inherent rights, for civil purposes.”
During the anti-abortion movement of the mid-nineteenth century, more 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. Every person who administered to a woman pregnant with a quick child 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 two laws are representative of the changes that were taking place throughout the country.
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. This was the result of so-called “discoveries” regarding the process of fertilization, as well as new medical literature. Most notably, Dr. John Beck, Professor of Medical Jurisprudence at the College of Physicians and Surgeons, wrote a treatise in which he supported anti-abortion laws on the theory that the practice amounted to the killing of a human being and that life began at conception. Views began to shift away from the idea that abortion laws were designed to protect the life of the mother and the courts interpreted “quick with child” to mean after conception rather than after fetal movement.
C. 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.
During the 1930s and 1940s, police raids on abortion clinics were sensationalized in the press. Raids in 1941, 1942, and 1947 in Chicago targeted both the abortionists, Dr. Josephine Gabler and Mrs. Ada Martin, of the Gabler-Martin abortion clinic, as well as their patients. In the Martin case, Chicago newspapers presented the arrests as a crackdown that had brought down an organized crime ring, stating that a single abortion clinic “ranked with the Capone crime syndicate.
In the first half of the twentieth century, abortion laws effectively created a two-tiered system. Privileged women were able to pay doctors for abortions, and persuade them to perform the procedure. The poor and destitute faced restrictive laws which forced them to have an unwanted child or seek out illegal abortions, or travel to foreign countries to seek abortion services. In the years preceding the onset of the First World War, public discussion of sex was considered taboo and there was no unified movement to repeal abortion laws in the United States.
Although the pro-choice movement had yet to develop, several organizations and scholars began to give abortion greater attention. The National Committee on Maternal Health held a conference in New York in 1942 on “The Abortion Problem.” In April 1955, Planned Parenthood hosted a conference on “Abortion in the United States” which had become dramatically safer. In fact, with the combined effects of improved techniques, antibiotics, and antiseptics, an abortion was safer than delivering a child.
The first major vocal challenge to abortion involved a series of lectures delivered by Professor Glanville Williams at Columbia University School of Law in 1956. Although not a member of the American Law Institute, Professor Williams was asked to participate in drafting the Model Penal Code (MPC), which would play an important role in abortion reform. Williams argued that abortion should be legal before the point of viability, which he placed at twenty-eight weeks –- the standard for abortion proponents.
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.”
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. In 1970, Hawaii legalized all abortions of non-viable fetuses performed by licensed physicians. The public debate that took place in New York during the late 1960s typified the abortion movement’s struggle. In January 1968, Governor Nelson A. Rockefeller appointed an eleven member commission under the leadership of Charles W. Froessel, a retired Judge of the New York Court of Appeals, to study the state of abortion law in New York. 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 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.
The majority of the Commission found that even if the lowest estimates were used, approximately 200,000 abortions were performed in the United States each year. And, it found that the restrictive laws created an abortion racket, operated by doctors without regard for the law, and performed by untrained persons who used the most primitive instruments under the most unsanitary conditions. They also found that New York’s restrictive law unfairly discriminated against the poor who faced the choice between having a child that they could not afford to care for, or turning to one of the incompetent persons willing to sell their services for cheap. The majority cited estimations suggesting that 5,000 to 10,000 maternal deaths per year could be attributed to “botched, illegal abortions.”
The Commission’s recommendations for a liberalized abortion law were proposed as bills to the Legislature in 1968 and 1969, but failed to pass on both occasions. 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.
D. The Decision in Roe and its Aftermath (1973-1982)
The Supreme Court paved the way for women’s health to be used as an excuse 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. 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.
E. Twenty-Five Years of Legal Abortions (1982–2007)
In the years immediately following Roe, 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.
Meanwhile, abortion politics entered the election arena as politicians began to voice their views, to improve their chances of election or reelection. For example, in 1984 President Ronald Reagan’s administration adopted a policy that became known as the “global gag rule” which required any country that accepted economic aid from the United States to fund health care not to provide abortion services in state-funded clinics, refer patients for services, or counsel patients about reproductive options. President Bill Clinton repealed the rule, President George W. Bush reinstated it, and President Barack Obama repealed it again.
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, 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 on Planned Parenthood of Southeastern Pennsylvania vs. Casey. Most importantly, the Court 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 are 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.”
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. Equally as important, the 2010 midterm elections created a political shift since 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 and 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. One line in Chief Justice William Rehnquist’s dissent in Casey stood out as a banner for further undermining abortion rights: “Roe continues to exist, but only the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.”
F. An Overview of Abortion Restrictions in the States
State laws to restrict abortion can be characterized as follows: Personhood legislation, Near-Total Abortion Bans; Abortion Bans After Twelve Weeks; Biased Counseling and Mandatory Delays; Counseling Bans and Gag Rules; Insurance Prohibition for Abortion; Refusal to Provide Medical Services; Restrictions on Low-Income Women’s Access to Abortion; Restrictions on Young Women’s Access to Abortion; and Targeted Regulation of Abortion Providers (TRAP).
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 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 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, “[twenty] 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 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.
Since 2005, no new scientific discoveries have been published to dispute these findings. Thus, the “substantial evidence” referenced by the Nebraska bill is meager, lacking, disputed 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.
In Isaacson v. Horne, the Ninth Circuit struck down an Arizona statute containing a twenty-week ban. The Court explained:
Under controlling Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability. Section 7 effects such a deprivation, by prohibiting abortion from twenty weeks gestational age through fetal viability. The twenty-week law is therefore unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with [Carhart]. Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable.
However, more than half the states have enacted laws that subject women seeking abortions to biased counseling requirements, mandatory delays, or both. The first state to do so was South Dakota, purportedly to ensure a pregnant woman’s voluntary and informed consent before she underwent an abortion.
A preliminary injunction was granted by the United States District Court for the District of South Dakota. The court held that a provision requiring a woman to visit a pregnancy help center “humiliates and degrades her as a human being.” Florida has just passed a twenty-four hour waiting period and mandatory requirement for an ultrasound.
In Delaware, a statute requiring a twenty-four hour waiting period was declared unconstitutional because it did not contain a health exception. Informed consent laws, which go beyond simply providing information regarding the risks associated with abortion procedures, however, have received a great deal of criticism, and have recently been challenged in state and federal courts alike. The most recognized and controversial of these informed consent laws involve statutes that regulate the use of ultrasounds, which are otherwise a standard tool used by obstetricians to establish the date of pregnancy, have, instead been transformed into an instrument of harassment.
An inquiry into the constitutionality of these laws must examine whether the purpose of these laws is to create “a substantial obstacle in the path of a woman seeking an abortion”. Pro-ponents of ultrasound requirements contend that requiring a woman to view ultrasounds simply provides additional information. Viewing an ultrasound will have no effect on her decision, but for others, the sight of an unborn fetus with a beating heart may cause significant distress. It is apparent that the primary purpose behind these laws is to reduce the number of abortions.
The psychological effects of having the images and sounds of an ultrasound placed in front of a woman are traumatic. The director of one abortion clinic noted that several of the patients were in tears afterwards. No one changed her mind. The Oklahoma State Supreme Court implicitly agreed with this logic in its decision in Pruitt v. Nova Health Systems, finding that “the challenged measure was facially unconstitutional pursuant to Casey and affirmed a permanent injunction.
Twenty-four states prohibit insurance plans for public employees or private-sector individuals, or both, from covering abortion services. Of these twenty-four states, three states prohibit abortion coverage in the entire private insurance market. Rhode Island has two separate insurance prohibition laws. The First Circuit found the first law to be unconstitutional and unenforceable, and the second law to be partially unconstitutional and unenforceable. In Kansas, the district court set down the question of whether a similar insurance prohibition statute places an undue burden on a woman seeking an abortion.
Forty-seven states, and the District of Columbia, have laws that
include provisions known as “refusals,” which permit a broad range of individuals and institutions—including hospitals, hospital employees, health-care providers, pharmacists, employers, and insurance companies—to refuse to provide, pay for, counsel for, or even refer patients for medical treatment that they oppose.
All women should have access to reproductive health care, regardless of their economic status; however, discriminatory restrictions on public funding make abortion services an unavailable choice for many low-income women. Banning public funding for certain services limits reproductive health options for those who rely on the government for their healthcare. These policies put women’s health in danger, and allow politicians to interfere with the doctor-patient relationship.
Currently, thirty-three states, and the District of Columbia, restrict access to abortion for low income women, while seventeen states “fund abortion services for low-income women in extremely limited circumstances beyond federal restrictions.”
At least “forty-four states have parental-notice or -consent laws that restrict young women’s access to abortion.” For a parental consent statute to be constitutional it must contain a bypass provision that meets four criteria: (i) allows the minor to bypass the consent requirement if she establishes that she is mature enough, and well enough informed to make the abortion decision independently; (ii) allows the minor to bypass the consent requirement if she establishes that the abortion would be in her best interest; (iii) ensures the minor’s anonymity; and (iv) provides for expeditious bypass procedures.
In re Doe should be contrasted with the decision of the Nebraska Supreme Court, which reached the opposite conclusion. In re Anonymous involved a sixteen year old, who was ten weeks pregnant. The trial court denied the application upon a finding that she was “not sufficiently mature to decide whether to have an abortion” after telling her “ ‘when you have the abortion it’s going to kill the child inside you.’ ” A majority of the Supreme Court upheld the finding, despite the dissent’s observation that
[t]he petitioner has no legal parents; the juvenile court terminated their parental rights. Her legal guardian, the Department [of Health and Human Services]—by regulation—will not give her consent. And although the district court has required her to get her foster parents’ consent to obtain an abortion, their consent would be meaningless under the law because they are neither parents nor guardians. She is in a legal limbo—a quandary of the Legislature’s making.
Decisions such as Anonymous and In re Doe show that the judicial bypass mechanism often depends upon the personal viewpoint of the judge hearing the application.
There are numerous other legislative efforts to chip away at reproductive freedom.
Personhood laws are thinly veiled attempts to circumvent Roe v. Wade, by making the fetal life as important (or more important) than the wishes, health, or in some cases life of the woman who is carrying the fetus. The single most important goal for any personhood law is to restrict, if not make totally illegal, the right to access abortions. If the fetus zygote is a legal person, then Roe v. Wade no longer applies. “Viability” as a test no longer applies. A zygote or fetus must therefore be protected from being killed, just like any other person is.
The first attempt to give a fetus any legal status was made in Colorado during the 2008 elections. It failed overwhelmingly, 34 to 65. The same proponents tried again in 2010 by a margin of 29 to 70 in 2010. A third attempt in 2012 failed to even garner enough signatures to appear on the ballot. Not to be defeated, Personhood Colorado managed to get a new bill onto the 2014 ballot. The new attempt avoided the word “personhood” by stating only “to protect women and unborn children”, and presented the bill as a way for law enforcement to charge someone who causes a pregnant woman to lose her child as a homicide. This, despite an existing law that already allows the exact same thing, minus the language giving personhood to fetuses. The 2014 attempt also failed, and by a margin of 35 to 65. Personhood Iowa attempted to place a bill on the 2011 ballot, however, it was removed for technical reasons and never reached popular vote. For anti-abortion forces, one of the most surprising losses was in Mississippi, in the 2011 Elections. It was voted down, in one of the most conservative states, by a margin of 42 to 58.
Similar to “personhood” legislation are statutes that seek to prohibit abortion when a fetal heartbeat is detected or fetal pain laws. Such statutes are clearly unconstitutional because they purport to preclude abortions before viability,. In addition, the idea that a fetus can feel pain has absolutely no scientific basis.
Trap Laws (“Targeted Regulation of Abortion Providers”) single out abortion clinics for medical regulations no other clinics that provide similarly low-risk services need to obey—are on trend, and they are much more efficient at wiping out safe abortion access than rules like mandatory ultrasounds or legislation banning insurance coverage of abortion services. Details include:
- Twelve states specify the size of the procedure rooms.
- Twelve states specify corridor width.
- Nine states require each abortion facility to have an agreement with a local hospital in order to transfer patients in the event complications arise. (Including requirements on clinicians a total of twenty-two states require a provider to have a relationship with a hospital.)
Such regulations may require that doctors have admitting privileges at local hospitals or that abortions be performed in far more sophisticated and expensive facilities than are necessary to ensure the provision of safe procedures. Compliance with these physical plant requirements may require extensive renovations or be physically impossible in existing facilities. TRAP laws may also allow unannounced state inspections, even when patients are present. These excessive and unnecessary government regulations – an ever-growing trend among state legislatures – increase the cost and scarcity of abortion services, harming women’s health and inhibiting their reproductive choices.
These laws have a number of negative effects. They deter physicians from becoming or remaining abortion providers by subjecting physicians who provide abortions to criminal and civil penalties, exposing them to harassment, and intruding significantly into their practice of medicine. As a result, TRAP laws reduce women’s access to abortions services. In addition, TRAP laws significantly raise the cost of providing and obtaining abortions, and thereby cause some women to delay or even forego desired abortions.
TRAP laws raise a variety of constitutional concerns. By burdening and marginalizing abortion provisions, TRAP laws violate women’s rights to choose abortion and to equal protection of the laws. To the extent TRAP schemes threaten abortion patients’ confidentiality, they may also violate women’s right to privacy. TRAP laws also violate the constitutional rights of abortion providers in three ways: by subjecting them to vague criminal laws; by forcing them to comply with unreasonable searches; and by violating their right to equal protection of the laws.
One of the more popular use of TRAP laws concern admitting privileges. Legislation under this rubric provides that an abortion clinic may not operate unless a physician has admitting privileges at a local hospital. The American College of Obstetricians and Gynecologists (“ACOG”), however, has explicitly stated on more than one occasion that admitting privileges are not necessary to the provision of safe abortions and has publicly opposed laws that make abortion access contingent on the availability of such privileges. As opposed to admitting privileges, privileges, ACOG and others emphasize the need for clearly established policies and protocols to govern the transfer of a patient needing emergency care to a hospital.
The admitting privileges requirement is irrelevant to the optimal provision of care to women because, in the exceedingly rare event that hospitalization is required, the physician who provided the abortion may not be the appropriate physician to manage the patient’s care in the hospital. For example, if the patient has suffered a vascular or bowel injury, it is critical that she be treated by the appropriate subspecialist; similarly, a woman with a cardiac- or lung-related complication should be seen by a cardiologist or pulmonologist.
Moreover, the admitting privileges requirement is applied to abortion clinics and abortion clinics alone. Yet physicians frequently perform surgeries that are far more riskier than abortion in ambulatory surgical centers.
Legislators proposing admitting privilege legislation have pointed to an unfortunate decision of the Untied States Court of Appeals for the Fifth Circuit, which relied upon the testimony of Dr. John Thorp and James Anderson. Neither is an “impartial expert.” Anderson is chairman of Virginia Physicians for Life. Thorp works with Matercare International, a “nonprofit international organization of Catholic health professionals” and has regularly intervened in litigation involving challenges to anti-choice legislation.
Thorp claims that due to the “unique nature of an elective pregnancy termination and its likely underreported morbidity,” admitting privileges are necessary, but he fails to cite a single instance where there was an unreported death from a legal abortion, or any doctor abandoning a patient. The assertions are far outside the mainstream of current medical thought. They are, in short, “junk science.”
During the oral argument in the Fifth Circuit, it was noted that these laws would operate to close a large amount of clinics forcing women to drive long distances to reach an abortion clinic. Judge Edith H. Jones said that she did not believe that driving 300 miles round trip would pose a serious obstacle to Texas women seeking abortions, telling attorneys about good highways and 75 mph speed limits, as if women seeking abortions had access to chauffeur driven limousines.
The Fifth Circuit denied an en banc rehearing of the case by a divided court. The dissenting opinion noted that the panel decision conflicted with decisions in the Seventh and Ninth Circuits.
In the end, we see that the real purpose of the admitting privilege laws and similar legislation pending elsewhere is not to protect maternal health, but to prevent women from exercising their constitutional right to choose an abortion, through forced closure of clinics, by making it virtually impossible to do so.
The bills were designed to make the procedure sound as gruesome as possible in nonmedical, emotion-laden terms. In a D&E, the fetus is removed with forceps, and disarticulation — a medical term that means dismemberment but is less likely to be used in a horror movie — usually occurs, according to the American College of Obstetricians and Gynecologists.
The fact is, many surgical procedures are intensely invasive and unpleasant to describe. In this case, the “dismemberment” is being done to fetuses that are not viable outside the womb and that scientists agree cannot feel pain. (Don’t be fooled by the unscientific claims of some anti-abortion groups that they can.)
Nearly 90% of abortions in the U.S. are performed in the first trimester, when a D&E is not necessary. But it is– or should be– settled law that women have a right to an abortion up to the time that the fetus becomes viable outside the womb, which is about 24 weeks — the end of the second trimester.
Doctors say women most commonly seek late abortions because they didn’t realize they were pregnant, they discovered a fetal abnormality or they have a serious health issue. The D&E procedure is performed in about 95% of second trimester abortions because it is the most effective method at that stage of pregnancy.
The recent imposition of unnecessary and burdensome regulations targeting abortion providers over other medical professionals is an obvious attempt to increase costs, prevent ease of access to abortion care, and drive these physicians out of practice.
Such proposals are known as TRAP laws: Targeted Regulation of Abortion Providers. Common TRAP regulations include those that restrict where abortion care may be provided. Regulations limiting abortion care to hospitals or other specialized facilities, rather than physicians’ offices, require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices into mini-hospitals at a great expense, or provide abortion services only at hospitals, an impossibility in many parts of the country.
Forty-five states have enacted such laws. The American College of Obstetricians and Gynecologists (ACOG), however, has explicitly stated on more than one occasion that admitting privileges are not necessary to the provision of safe abortions, and publicly opposes laws that make abortion access contingent on the availability of such privileges.
Moreover, the admitting privileges requirement is only applied to abortion clinics, while physicians frequently perform surgeries that are far more complicated and riskier than abortions in ambulatory surgical centers.
Federal courts have not hesitated to strike down laws that use admitting privileges, or similar measures, to delegate arbitrary and unreviewable authority, with no standards, over abortion providers to private hospitals. In Birth Control Centers, Inc. v. Reizen, a federal district court in Michigan held that a law that required abortion clinics to secure either a written transfer agreement with a hospital or a written agreement with a physician with staff privileges at a local hospital “violate[d] due process concepts because [it] delegate[d] a licensing function to private entities without standards to guide their discretion.”
As the court explained,
The defect lies in the delegation of unguided power to a private entity, whose self-interest could color its decision to assist licensure of a competitor. Similar delegations of licensing functions have met with judicial disapproval. . . . The power to prohibit licensure may not constitutionally be placed in the hands of hospitals. Such an impermissible delegation without standards or safeguards to protect against unfairness, arbitrariness or favoritism is void for lack of due process.
TRAP legislation has, at its core, the aim of reducing the availability of abortion services and with no real health justification. Accordingly, outside of the Fifth Circuit, such legislation has not withstood constitutional attack. Legislation “that has the effect of forcing all or a substantial portion of a state’s abortion providers to stop offering such procedures creates a substantial obstacle to a woman’s right to have a previability abortion.”
Despite these clear authorities, state legislatures have not stopped trying to impose these restrictive regulations. On June 14, 2013, the Wisconsin Legislature passed Section 1 of 2013 Wisconsin Act 37, which, among other things, required physicians providing abortion services in Wisconsin to have admitting privileges at a hospital within thirty miles of their clinic. Finding that the impact of this legislation would be the closure of a vast majority of clinics in the state, the court in Planned Parenthood of Wisconsin v. Van Hollen, granted a preliminary injunction against its enforcement on March 20, 2015.
Although most efforts to restrict abortion rights have centered upon the purported notion that the restrictions are related to health and safety, just last month two states abandoned even that pretext. In 2015 Kansas and Oklahoma became the first states to ban the safest, most widely used method of abortion in the second trimester. The nearly identical laws, which are both referred to as the Unborn Child Protection From Dismemberment Abortion Act, outlaw the procedure known as “dilation and evacuation” (or D&E) which is described in the Kansas legislation as “dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus.” The laws make an exception to save the life of the mother.
The arguments made to undermine a woman’s reproductive freedom are not new. As the testimony before the Governor’s Commission demonstrates, witnesses argued fetal pain, life at conception, and morals. They were convincingly refuted at that time and in the Roe opinion. Thus, as Professor Means stated,
. . . [O]ver the long pull, the Roe v. Wade opinion will outlast its critics. . . . [T]he work of the Court, like the Constitution it interprets, is not designed for seasons, silly or otherwise, but for the ages.