Ohio’s state legislature recently passed a bill that criminalised the abortion of a fetus at six weeks, with no exception for rape or incest. So, how can this be legal given the fact that the landmark ruling in the court case of Roe v Wade from 1973, which gave American women the legal right to an abortion, has not been overturned?
The world ends not with a bang but with a whimper – to paraphrase American poet TS Eliot. As the nation’s highest court shifts right and, arguably, become more politicised than ever, legal activists and concerned citizens should be particularly attentive to what impending test cases are likely to reach the United States Supreme Court.
Given this new judicial landscape, a woman’s right to choose and, with that, landmark case Roe v Wade is on many people’s minds. However, the reversal of Roe – the bang – may not be the most immediate threat to women’s bodily autonomy. Rather, the undermining of the existing regime of abortion access laws by states – the whimper – is much more imminent, harmful, and in need of action, as in the case of Ohio.
The ability for a woman to have unrestricted access to safe, legal abortion care in the US is integral to the right to choose outlined in Roe v Wade. “Before Roe, women faced unwanted pregnancies and sought ways to end them. Women who had means could sometimes access a legal, or at least safe, abortion, but poor women – especially poor, young, women of colour – had few options beyond carrying an unwanted pregnancy to term or undergoing a dangerous procedure,” said Dr Abigail Cutler, an obstetrician-gynecologist at the Yale School of Medicine, in a conversation with the authors. “Abortion has always, and will always, be common. The difference is that when abortion is illegal, women die.”
This is not unchartered territory. There is an abundance of data that attests to what happens to women’s health when access is diminished. For instance, when states restricted Medicaid coverage of abortion services, women faced a 16 percent increased risk of severe maternal conditions such as heart attacks, acute renal failure, eclampsia, sepsis, and shock.
Further, studies have found that between six percent and 22 percent of women seeking abortions report intimate partner violence and some cite it as a reason for terminating pregnancies. Study participants described “not wanting to expose children to violence and believing that having the baby will tether them to an abusive partner.” Understanding the evolution of abortion regulations and subsequent court challenges over the past 45 years is crucial to realising the enormity of the threat of the Supreme Court’s new composition.
Subsequent to the landmark Roe decision, conservative states and even some liberal ones tried to subvert this right by creating regulations that restrict abortion clinics (requiring them to be affiliated with a hospital located close by), abortion providers (mandating that they have to admit privileges at a nearby medical centre), or women (requiring that they notify their husbands). In effect, these provisions serve as roadblocks to providing access to abortion care services for women.
In the decades following Roe v Wade many of these new regulations on women and abortion providers were challenged in court. Planned Parenthood of Southeastern Pennsylvania challenged new stipulations to Pennsylvania’s abortion control law in 1988 and 1989. The provisions in question required women, if married, to notify their husbands and, if under 18, to obtain parental consent and wait 24 hours before having the procedure done.
In a 5-4 decision, the Supreme Court reaffirmed Roe and imposed the new “undue burden” standard, which forces the question of whether a state abortion regulation imposes a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
One shortcoming of this standard is that it typically neglects the collective burden that comes with the accumulation of regulatory obstacles to access (ie facing a multiplicity of travel-related issues, health system navigation issues, limited clinic options, financial issues, and state or clinic restrictions). With this new standard of analysis, the court found that the husband consent requirement was placing an “undue burden” on a woman’s right to an abortion and, thus, was struck down. The rest of the provisions being challenged were still upheld because they were able to pass the undue burden test.
The undue burden test was further modified by the Supreme Court’s decision in the case of Whole Woman’s Health v Hellerstedt (2016). The court decided that the undue burden test is a form of heightened scrutiny and, in determining whether an abortion regulation burdens a woman’s right to an abortion, the court also must consider whether the law actually furthers a valid state interest, confers benefits that outweigh burdens, and is based on credible evidence.
In doing so, the court shifted the burden of proof to the state to justify the validity of abortion regulations. Hence, states now feel especially empowered to restrict access with this plenary power as long as they provide justification for it.
In this light, the slow erosion of abortion access, state by state through test cases that draw on states’ plenary powers, seems like the more viable strategy for the right; it would be death by 1,000 cuts. These current legal trends towards a more restrictive abortion landscape require much closer monitoring of state legislative agendas and legal cases, so that we can block the passage of such laws before they are enacted, as it is these laws that are shaping lives of women on the ground.
Although we fear the overturning of Roe v Wade, it is critical that we remember an equally insidious possibility: that Justice Brett Kavanaugh’s confirmation invigorates a wave of abortion restrictions that will limit access to high-quality abortion care and thus undermine a woman’s right to an abortion.
Americans must increase proactive state-level advocacy (particularly in red states) and remain vigilant that the Supreme Court not only respects the Roe v Wade ruling but also the subsequent court decisions that outline the standards for judicial review of abortion regulation. Going forward, maintaining women’s access to high-quality abortion care will be a legal Medusa, where the most unassuming of snakes could be the most destructive.
The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial stance.