BY JORDAN LEWIS – On January 22, 1973, the Supreme Court marked a milestone for the reproductive justice movement with the legalization of abortion nationwide. 42 years later, the battle lines are still drawn over an issue that hits many close to home. Today, Roe remains under threat, by state legislatures and an uneasy judiciary.
2015 marks a changing time for many of the contested social issues of the past. In his State of the Union Address, President Obama noted that gay marriage went from being a wedge issue to a civil right now legal in most states.[1] More states will choose to regulate marijuana sales instead of criminalizing it. Yet polls continue to show that abortion continues to be a hotly contested issue in the United States.[2]
Anti-Abortion Legislation
This conflict is evident in Washington and in legislative chambers across the country. Recently, Congressional Republicans debated a bill that would ban abortion after 20 weeks, which would mirror the laws of 10 states and directly challenge the holding of Roe, which held that women had the right to have an abortion at least until the point of fetal viability. [3]
Statewide legislation is even more onerous. Since 2011, more than 200 restrictions on abortion have been passed.[4] Some states, such as Texas, Alabama, and Mississippi, have closed down abortion clinics by requiring that all doctors have admitting privileges at local hospitals, nearly impossible in some small towns.[5] 1 in 6 Texas women would live over 150 miles from the nearest abortion clinic.[6] In Virginia, strict building regulations sought to shut down clinics. The right to an abortion only does so much if there are no available clinics to access.[7]
A new Alabama law would allow the state to appoint an attorney for the fetus of a minor if she cannot get parental consent.[8] It allows the attorney to cross-examine the minor and allow witnesses to testify against the girl. The sad irony is that while the state provides for attorneys for a fetus, the state lacks a Public Defender system to protect the accused.
Legal History
Roe held that a woman has a right to an abortion until viability, as part of a right to privacy.[9] During the final trimester, states could promote reasonable restrictions as long as they did not interfere with a women’s health. In 1992, the Court preserved the central framework of Roe, but allowed further state restrictions on abortion[10]. In Stenberg, the Court struck down a Nebraska law criminalizing partial-birth abortions.[11] But in 2007, the Supreme Court upheld a similar Congressional ban, finding medical disagreement as to whether abortion could be necessary.[12] Justice Ginsburg, in her dissent, suggested that Roe was central to a woman’s autonomy, dignity, and her right to equal citizenship.[13]
The Future
While the Supreme Court blocked Texas’ law, it is unclear whether other anti-abortion legislation will withstand scrutiny, and chip away at, or overturn, Roe. All five justices in the majority in Gonzales remain on the Court, though Justice Kennedy previously struck down the spousal consent law in Casey. While abortion is and will be a hot-button issue for years to come, there are middle grounds for most Americans to agree upon. Expanding birth control access, funding programs that prevent sexual abuse, and decreasing poverty would all lower the abortion rate.
The right to an abortion, however, should be protected, as paramount to bodily autonomy. Liberty and freedom cannot exist without the sole control over one’s body. Reversing Roe would bring back the tragedies of the pre-Roe era, of unsafe abortions, and tragic, preventable deaths. Sometimes if we want to move forward, we must look back.
[1] http://www.cnn.com/2015/01/20/politics/state-of-the-union-2015-transcript-full-text/. Roe’s trimester framework was abandoned in Casey, but 20 weeks is generally seen to be a point before viability.
[2] http://www.gallup.com/poll/1576/abortion.aspx.
[3] http://www.washingtonpost.com/blogs/govbeat/wp/2015/01/23/the-20-week-abortion-ban-that-fell-flat-in-congress-is-likely-to-advance-in-state-legislatures/.
[4] http://www.washingtonpost.com/opinions/laws-courts-shrinking-access-to-abortion/2014/10/10/efd0aef4-4f25-11e4-aa5e-7153e466a02d_story.html
[5] Id.
[6] http://www.nytimes.com/2014/10/16/us/texas-abortion-clinics-set-to-reopen-despite-future-in-legal-limbo.html?_r=1
[7] http://www.washingtonpost.com/opinions/laws-courts-shrinking-access-to-abortion/2014/10/10/efd0aef4-4f25-11e4-aa5e-7153e466a02d_story.html.
[8] This is best depicted in http://thedailyshow.cc.com/videos/ouq3mw/the-unborn-ultimatum. “If you can’t afford an attorney, Alabama has got your back—until the day you’re born.”
[9] Roe v. Wade, 410 U.S. 113 (1973). In the second trimester, states could regulate abortion only to protect the woman’s health. In the third trimester, laws were permitted to restrict abortion, except when necessary to preserve the health of the mother.
[10] Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality opinion) (upholding Pennsylvania’s regulations regarding parental notification, reporting mandates on clinics, 24-hour waiting period, and informed consent requirements. The spousal notice rule was struck down by the 3-Justice plurality as it would worsen spousal abuse and give husbands too much power.) The new standard asks whether state laws impose an “undue burden.” In all, five Justices voted to uphold the bulk of Roe.
[11] Stenberg v. Carhart, 530 U.S. 914 (2000). Only four doctors provide late-term abortions in the United States. They operate under a real threat of violence, as evidenced by the murder of George Tiller by an anti-abortion activist. The documentary After Tiller depicts the work of these doctors and the circumstances in which they are called upon to act.
[12] Gonzales v. Carhart, 550 U.S. 124 (2007). Most doctors, including the American College of Obstetricians and Gynecologists, believe that abortion is necessary in certain cases to save a mother’s life, including in cases of preeclampsia, heart failure, and certain infections. See http://www.usatoday.com/story/news/nation/2012/10/19/abortion-mother-life-walsh/1644839/.
[13] Id. at 170.
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Jordan Lewis is a 2016 Staff Editor of the Race and Social Justice Law Review.
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