Monday, December 4

Bending Toward Justice: Some states will do anything to overturn Roe v. Wade

This is the second article of a week-long series looking at the legal and political landscape around abortion rights, on the 45th anniversary of the U.S. Supreme Court’s decision Roe v. Wade. Part I was published yesterday. You can find it here.

The Missouri Supreme Court is hearing arguments today in a challenge to the state’s informed consent and ultrasound requirements imposed on women seeking abortions. Under Missouri law, before a woman can obtain an abortion, she must certify that she has read a pamphlet written by the state’s health department which states that human life begins at conception and that abortion will terminate the life of a separate, unique, living human being. She must also wait 72 hours after first visiting a licensed health care provider requesting an abortion. And she must be given an ultrasound, with the opportunity to listen to the fetal heartbeat.

Mary Doe says she’s a member of the Satanic Temple. When she first sought an abortion in Missouri in 2015, she objected in writing to the pamphlet, ultrasound and waiting period on religious grounds, and requested to proceed immediately with the abortion. The clinic refused, she waited, had the abortion, and then sued, claiming that Missouri’s law violated her religious belief that life doesn’t begin at conception, and the Establishment Clause of the U.S. Constitution.

Mary Doe’s Satanic Temple religion may be outside the mainstream, but her case reflects the stark reality for women seeking abortion in certain states. Notwithstanding the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, states controlled by Republicans have amped up their efforts to restrict a woman’s right to choose by imposing onerous and unjustified requirements on women, their families, their doctors, and health clinics.

According to the Guttmacher Institute, a research and policy organization focused on reproductive health, one-third of all abortion restrictions that went into effect after Roe v. Wade were enacted in the last seven years. In 2017 alone, 63 new state laws restricting access to abortion were added to the books in 17 states. The Institute developed a chart comparing the states on commonly-imposed abortion restrictions, like mandatory anti-abortion counseling, waiting periods, and parental consent for minors. Click here for the Institute’s chart. If you want the details on abortion restrictions in any particular state, click here and find that state on the drop down menu. Or check out this slideshow on Refinery 29.

Some states aren’t satisfied with the constitutional guardrails placed on abortion rights by the Supreme Court. They will continue to pass more laws and add more restrictions, hoping that eventually the Supreme Court will overturn Roe, Planned Parenthood v. Casey, and Whole Woman’s Health.

Alabama, Arkansas, Kansas, Oklahoma, Louisiana, and Texas stand out. Although 90% of all abortions in the U.S. take place in the first trimester (the first 13 weeks of gestation), these states passed onerous laws to prohibit a type of abortion procedure in the second trimester (weeks 14 to 26 of gestation). In a dilation and evacuation (called D&E) procedure, the pregnant woman’s cervix is dilated and a suction is used to remove the fetus. On occasion, surgical instruments might also be used. Ninety-five percent of all second trimester abortions employ the D&E procedure. Outlawing it would place an undue burden on a woman’s right to terminate her pregnancy if she were delayed in doing so until the second trimester.

The ban on D&E in these states came about through the requirement that health care providers inject chemicals into the fetus or cut the umbilical cord before performing the D&E. The goal was to bring about fetal demise in the uterus, before it was extracted. But there is scant medical evidence justifying these additional steps, and they pose considerable risk for pregnant women. That’s why courts in Alabama, Arkansas, Kansas, Oklahoma and Texas blocked the laws. A court in Louisiana is considering a similar challenge. In this decision from the federal district court in Texas, the judge explains why restricting ordinary D&E procedures is unconstitutional. The Texas court’s injunction is on appeal to the Fifth Circuit.

Arkansas went even further. The state also required physicians conducting abortions to investigate a woman’s pregnancy history; required that women under 17 seeking abortions be reported to local law enforcement; and that family members of women seeking abortions be notified, so they could come to agreement on how to dispose of the fetal remains. Those laws were also held to be unconstitutional, this time by a federal district court in Arkansas. You can read the 140-page opinion here. The decision is on appeal to the Eighth Circuit.

Not to be outdone, Texas passed a law last year requiring hospital and abortion clinics to dispose of fetal tissue by burial, cremation or incineration, regardless of the woman’s wishes or belief. The law came on the heels of a nearly identical regulation by the state health department that was enjoined by a federal district court in Austin. The law is set to take effect on Feb. 1. Abortion rights advocates from the ACLU and the Center for Reproductive Rights — who successfully argued for the injunction to stop the regulation — are back in court seeking to stop the law from taking effect.

Nineteen states prohibit abortions after 20 weeks of pregnancy, unless the mother’s life is in danger (Alabama, Arkansas, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Sth Dakota, Texas, West Virginia, and Wisconsin). An abortion ban post-20 weeks conflicts with the Supreme Court’s decision in Casey, which held that the state’s interest outweighs women’s privacy rights only after the fetus is viable, around 24 weeks of pregnancy.

In the post-Roe landscape, reproductive rights advocates have been on defense, challenging one abortion restriction after another, to protect women’s constitutional rights. Now, they’re taking a broader approach, and encouraging states to be proactive in guaranteeing women meaningful access to abortion services. We’ll look at these progressive states in tomorrow’s story.

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