Could the reproductive rights of women in the U.S. become a thing of the past? As U.S. abortion laws seem to be moving back in time, a veritable Handmaid’s Tale is unfolding before our eyes. With Trump’s nomination of conservative Brett Kavanaugh to the Supreme Court, the country could end up with a majority of right-leaning justices who do not look favorably upon women’s reproductive freedoms.
Judge Kavanaugh’s views on Roe v. Wade could be the deciding factor that overturns the landmark decision, which recognized a woman’s constitutional right to privacy. Moreover it included the right to have an abortion without interference from politicians. Yet still they interfere.
Who is Judge Brett Kavanaugh?
Last year Judge Kavanaugh blocked a teenage immigrant in federal custody from terminating her pregnancy, claiming she did not have the right to “an immediate abortion on demand.” He’s also said to be an originalist who believes the right to end a viable pregnancy has no legal basis in the “original” constitutional text.
What’s more, his track record is littered with conservative views that expose a desire to keep turning back the clock. This wins him no favor since seven in 10 people in the U.S. believe Roe v. Wade should be the law of the land. Abortion may currently be legally available and state-regulated, but we must now contemplate the possibility of a national ban. We must also acknowledge the risk to women’s lives when access to safe and legal abortion is taken away.
A closer look at abortion laws throughout the U.S. suggests that this risk is becoming more and more of a reality. Roe v. Wade may have established abortion rights 20 years ago, but in 1992 Planned Parenthood v. Casey proceeded to rein them in. The case set a new legal standard that gave states greater leeway to regulate the procedure.
This, it seems, was the beginning of incremental changes that are slowly but surely chipping away at women’s freedom to choose. Law by law we’re seeing the systematic dismantlement of reproductive rights in the U.S.—in the first three months of 2018 alone, 347 measures to restrict abortion and birth control were introduced in 37 states.
Abortion Laws by State in 2018 and Barriers to Abortion in the U.S.
As of June 1, 2018, 42 states allow institutions to refuse abortions. The Guttmacher Institute also reports that 45 states allow individual health care providers to refuse to participate in the termination of a pregnancy.
Eleven states restrict coverage of abortion in private insurance plans, and many states prohibit the use of federal funds to facilitate the procedure, except where the woman’s life is in danger or the pregnancy is the result of rape—and only then is it permissible if funds are available.
Authorities are also cracking down on medical abortions obtained via telemedicine, a service that delivers healthcare consultations remotely by phone or internet. This is now banned in 19 states, which vetoes a solution that could help women bypass the barriers outlined below.
Barrier One: The Inquisition
Thirty-five states mandate that a woman receive counseling before she is allowed to have an abortion. It’s during these counseling sessions that women receive information about fetal development and the negative impacts of the abortion procedure, the details of which aren’t always accurate. And since the counseling must be carried out in person, it also necessitates two separate visits to the clinic, which could be miles from the woman’s home.
Thirteen states specify that a woman must be told about the fetus’ ability to feel pain. What’s more, counselors in Arizona, Kansas, South Dakota, and Texas also give incorrect information as to the impact of abortion on future fertility. Counseling services in Alaska, Kansas, Mississippi, Oklahoma, and Texas also wrongly assert the link between abortion and breast cancer. This is nothing short of scaremongering.
Arizona, however, takes it to the next level by asking women to complete a questionnaire detailing why they are seeking an abortion. This information is then reported to the state. While questionnaires are submitted anonymously, this is still a major imposition on a woman’s constitutional right to privacy.
Barrier Two: The Ultrasound
Laws in AL, AZ, FL, IN, KS, KY, LA, MS, NC, OH, TX, UT, and WI mandate that a woman undergo an ultrasound before going ahead with the abortion procedure. The ultrasound itself is not medically necessary since it isn’t required for a safe abortion to take place. Plus it adds time, cost, and mileage to the already expensive procedure, as women must make a separate visit to a clinic for the ultrasound to be carried out.
The law in these states also requires that a woman be asked if she would like to look at the ultrasound image or listen to the fetal heartbeat. This appears to be emotional manipulation, which is made worse by the fact a woman may already be in some emotional distress due to the weight of the decision she is making.
Barrier Three: The Wait
Next comes the mandatory waiting period between counseling sessions, the ultrasound, and the actual abortion procedure. While pro-lifers claim this wait time allows a woman to carefully consider her decision, pro-choice advocates argue that once a woman has resolved to have an abortion—a decision that cannot be taken lightly—she is highly unlikely to reconsider.
Wait times are not a medical requirement but an extra legal barrier to obtaining necessary reproductive healthcare. They also intrude on the patient-provider relationship and fail to protect the interests of the patient. When a woman has decided to have an abortion, the ability to access the care she needs without delay is critical to her overall wellbeing.
An 18-hour wait is required in Indiana. It’s 24 hours in Arizona, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Texas, Virginia, West Virginia, and Wisconsin. It’s 28 hours in Alabama, Arkansas, and Tennessee, and it goes up to 72 hours in Missouri, North Carolina, Oklahoma, South Dakota, and Utah.
Permission Comes With Restrictions
Abortion is permitted up to 24 weeks in Florida, Massachusetts, Nevada, New York, Pennsylvania, Rhode Island, and South Dakota. Yet terminations are not permitted in 18 other states beyond 20 weeks of pregnancy, with exception in the cases of rape, incest, and danger to the woman’s life. While researchers say that a fetus is not viable before 20 weeks, there is still pro-life resistance as to the validity of the research.
A new law in Mississippi, known as the Gestational Age Act, draws the line at 15 weeks. It also states that anyone found guilty of performing an abortion after this time period could face a jail sentence of up to 10 years. Republican Governor Phil Bryant proposed the law, saying he wanted to make Mississippi the “safest place in America for an unborn child.” Once the child is born, however, it faces life in a state with the highest infant mortality rate and worst overall ranking for infant healthcare, according to the 2018 Health of Women and Children Report.
The mortality rate of women also increases when access to abortion is restricted, but this hasn’t stopped lawmakers in Iowa from passing a ban at six weeks. While the law is now subject to court challenge, it effectively makes abortion illegal since most women don’t know they are pregnant at six weeks. A female pastor in a conservative rural town in Iowa was moved to comment. “I suspect a lot of what they say and think really has a lot to do with having control over women’s bodies,” she said. “They’re frightened of giving women control over their own lives and their own choices.”
It gets worse. An outright abortion ban has been proposed in Ohio, with no exceptions for rape, incest, or danger to a woman’s life. Anti-choice lawmakers ask that abortion be considered a crime equal to murder, and punishable by the death penalty for both physicians carrying out the procedure and women receiving it.
We’re No Dystopian State Yet
There may be no dramatic overturning of the law that permits women in the U.S. to legally terminate their pregnancies; instead we’re seeing the gradual elimination of these rights. You can stay up to date with current laws in each state via the Guttmacher Institute, but it’s also crucial to stay aware of the laws being proposed that have not yet been passed.
Pro-choice organizations such as Planned Parenthood, Pro-Choice America, or The Center for Reproductive Rights are running campaigns to push back on new restrictions. You can follow and support these campaigns, adding your voice to the resistance if you’re concerned by the changes taking place. The greater the impact we have at state level to protect the freedom of choice granted by Roe v. Wade, the greater our chances become of preventing a national ban.
Featured image by Nirrimi Firebrace