Credit: American Life League on Flickr, under Creative Commons (CC BY-NC 2.0).
(WOMENSENEWS)–Anti-choice advocates have long said that overturning Roe v. Wade would send the issue of abortion back to the states, thus providing each state the opportunity to decide whether or not it wants abortion to be legal inside its borders.
As the issue has grown in importance, thanks to the dominance of religious conservatives in American politics, presidential and congressional candidates of all political stripes have tried to play both sides of the debate, advocating a states’ rights position while also supporting a federal ban on the procedure. Meanwhile, at the state level, governors campaign on promises to pass backup legislation that will either reinforce the ability to access a pregnancy termination or immediately make the procedure illegal should the Supreme Court ever reverse the Roe opinion.
Less noticed and more deliberate, however, has been the new stealth method of ending abortion rights by eliminating the protections of Roe in the first place. States that were once without mandatory waiting periods are now seeing bills proposed that mandate 24 hour waiting periods between a consultation with a doctor and the actual termination of a pregnancy. Those that already had one-day waiting periods are seeing that period extended to three days. States that allowed minors to obtain abortions without involving their parents are now ordering girls to notify their parents in advance, while those that already had parental notification laws in place are now proposing parental consent, sometimes from both parents, as well as limiting the ability to obtain a judicial bypass.
Dozens of states have made getting an ultrasound as well as listening to a government-sponsored script describing the image and warning about the possibility of depression, suicide, breast cancer and other medically disproven “side effects” of abortion a prerequisite to termination. Others forbid abortion prior to viability of the fetus even if the fetus has a terminal condition or the woman’s health is at risk. One state has even made providing medication to cause an abortion early in the first trimester so onerous that no providers will offer the medication, RU-486, out of fear of losing their licenses, eliminating the entire practice of medication abortion. Another is trying to shut down its only abortion clinic, making safe, legal abortion an utter impossibility.
Wendy Long, the 2012 Republican challenger to New York Sen. Kirsten Gillibrand, notoriously told a local news outlet that if “Roe v. Wade were overturned tomorrow, nobody would even notice, because the states are legislating their own laws about abortion, completely independent.”
While access to abortion will always be a reality for women in California, New York, Washington and other states that value a woman’s right to control her body, in places like Texas, Arizona and Kansas, it’s a different story. As the Center for Reproductive Rights reported in its 2004 study “What if Roe Fell?,” only 20 states (at the time) would have safe, legal abortion if Roe were overturned. The other 30 states would have limited access, and 21 of those would likely have no access at all based on their own trigger laws or previous state court verdicts:
“Anti-choice forces are counting on a changing Supreme Court and have been working tirelessly to pass anti-choice legislation in hopes that such legislation will be challenged in court, eventually forcing the court to reexamine, and overturn, Roe,” the Center for Reproductive Rights wrote in “What if Roe Fell?.” “Given their near misses in the past . . . these anti-choice forces are especially determined to be successful this time at overturning Roe.”
If “nobody would even notice,” it would only be because in many states, restrictions prior to having an abortion have become so onerous that access has become a matter of where a woman lives or how much money she has. While safe abortion will always be available for those with economic means, just as it was before Roe, for women without the same opportunities–those in rural areas, those who are poor and especially women of color facing both of those issues–the ability to obtain an abortion is already limited and becoming more so on a daily basis.
In addition, rather than assisting these women by helping them prevent unintended pregnancies in the first place, the same politicians and activists working to end abortion are also trying to eliminate women’s ability to access contraception, either by extinguishing family planning funding, targeting and closing reproductive care clinics or denying medical attention and birth control, under the name of conscience rights. As a result, not only have we hit a point where abortion is literally legal in name only for many women, but we could soon see the same thing happen to contraception, followed by access to even basic health care services for the most vulnerable women.
Rather than solidify women’s right to bodily autonomy, the impact of the legal challenges to Roe, along with the coordinated legislative attacks on the contours of “choice,” has been to segregate out the delivery of reproductive health care for women into an essentially “separate but equal” model that simultaneously threatens the very foundation of those rights. The result is twofold: abortion opponents create several avenues of challenging and undoing Roe altogether while leaving women with an increasingly restricted protocol of care endorsed by the courts as necessary for the state to “help” women exercise autonomy over their bodies.
By drafting laws that range from banning abortion at different points prior to viability, as in Nebraska and Ohio, to banning certain types of abortions, as in Wisconsin, legislators are inserting themselves as authorities on medical best practices and turning providers into criminals. In Indiana, they are seeking ways of criminalizing women for “endangering” their pregnancies, while in Idaho, prosecutors have taken steps toward jailing women for procuring their own abortions. Washington, D.C., Texas and Kansas have all found different means to use funding as a way to cut off women’s access to reproductive health services, while South Dakota, Oklahoma and Mississippi use “informed consent” and “women’s safety” as means to deny women the right to choose. Arizona simply bans everything and hopes one of its laws will eventually make it to the Supreme Court.
After 40 years of judicial precedent that has incrementally rolled back abortion access, and with a panel of Supreme Court justices who appear more willing than ever to reopen an issue once considered settled law, women’s reproductive rights have never been more vulnerable. And thanks to a handful of state legislators determined to make their political names and reputations by advancing legislation meant to crumble the protections offered by Roe, the United States may fragment into opposing factions of pro- and anti-women’s health states sooner than anyone could have imagined. To prevent that from happening, advocates of women’s rights need to move away from merely defending a woman’s right to choose and return to an aggressive stance that demands bodily autonomy for all women, regardless of race or class.
Anti-choice activists have set the battleground in states like Nebraska, Wisconsin, Idaho, Indiana, Ohio, Texas, Kansas, Arizona, Oklahoma, South Dakota and Mississippi, as well as Washington, D.C. In these places, they have used the legislatures to create laws that have practically regulated abortion out of existence, and padded the judiciary with abortion-hostile justices to control any legal challenges. But in examining each individual prong in the attack on Roe v. Wade, it becomes clear that the assault is not simply on women, but on women who have the least means to fight back by, and for, themselves. Together, those who support women’s rights can and must create a game plan to bring the battle back to these places and across the country as a whole in order to ensure an equitable health care system that offers reproductive justice for all.
Reprinted from “Crow After Roe: How ‘Separate But Equal’ Has Become the New Standard In Women’s Health And How We Can Change That” by Robin Marty and Jessica Mason Pieklo. Copyright 2013. Used by permission from Ig Publishing.
Robin Marty is the senior political reporter at RH Reality Check, and has spent the last four years tracking state-based anti-choice legislation. Jessica Mason Pieklo is a senior legal analyst at RH Reality Check, where she writes on issues of constitutional law and reproductive health and justice.
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