We Are Already Closer to the End of Legal Abortion Than We Think

If a conservative judge like Brett Kavanaugh is appointed to the Supreme Court, we can expect a barrage of dangerous new anti-abortion restrictions proposed and enacted across the country.

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Aug 10 2018, 7:39pm

Photo via Getty Images. 

During a 2016 campaign stop, Mike Pence promised voters that Roe v. Wade would be “consigned to the ash heap of history” should Donald Trump be elected President. This February, Pence doubled-down on this vision when he announced his goal to end legal abortion “in our time” at a luncheon hosted by an anti-abortion group held in Nashville.

On the campaign trail, Trump also promised to nominate justices who would overturn Roe v. Wade. in support of that aim, following the announcement of Supreme Court Justice Anthony Kennedy’s resignation, he relied on the recommendations of religious conservative Leonard Leo of the Federalist Society, a man who has been lauded for his dedication to “building a Supreme Court that will overturn Roe v. Wade.” The resulting nominee is Brett Kavanaugh, a man who recently supported the Trump administration’s policy of denying abortion access to immigrant women in federal custody, and a reliable conservative vote.

Despite the morbid enthusiasm expressed by Pence and members of the Federalist Society, many legal theorists doubt the fragility of Roe, even with a conservative majority on the court. As the Center for Reproductive Rights president Nancy Northup writes in the Washington Post, this is because Roe is fundamentally tied to constitutional protections that guarantee personal liberty free from government interference — protections that are “bound together through decades of accumulated legal precedent.” And while precedents certainly don’t last forever, the path of least resistance for anti-choice proponents is to incrementally chip away at abortion access until there’s an opportunity to untie abortion from personal-liberty, a tactic that’s already regularly employed. Some have appropriately called this stratagem, “death by a thousand cuts.”

If presented with an appropriate case, a fifth conservative Justice like Kavanaugh could certainly decide that abortion is no longer a protected right, overturning Roe. If this happens, 23 states could criminalize abortion immediately, and only nine states have included the right to abortion in their respective state constitutions to protect abortion access in the absence of Roe. Women who are unfortunate enough to live in states that outlaw the procedure will be forced to travel hundreds of miles, as many do now, to places as far as Mexico, California, or New Jersey, for abortion services. For many people without access to transportation, the privilege of taking time off from work, or access to childcare, abortion access will be near to impossible.

However, we are more likely to see a barrage of new abortion regulations that will make abortion access much more difficult, if not impossible. A conservative court is likely to see regulations, such as extended waiting periods, hospital admitting privileges, and other TRAP laws, as a mere inconvenience rather than a constitutionally-conflicted “undue burden”, and thus, legally permissible, even if the regulations, or those “thousand cuts,” effectually create an insurmountable burden for most.

While we can theorize endlessly about the innumerable ways in which our reproductive futures are doomed, let’s consider the realities that await us, regardless of the ways in which they will be justified. If you’re a low-income woman, young person, or a single mother, things are going to be much more difficult for you — particularly if you live in areas of the country where abortion access is already scarce. Currently, Kentucky, Mississippi, Missouri, North Dakota, South Dakota, West Virginia, and Wyoming have only one abortion clinic in addition to harsh restrictions such as mandated waiting periods. As of 2014, 90 percent of US counties lack an abortion provider, creating so-called “abortion deserts” where residents are forced to travel 100 miles or more to the nearest clinic.

With a conservative majority on the court, we can expect bold new anti-choice restrictions proposed and enacted across the country. Placing their faith in partisan judges who rely on support from conservative legislators, lawmakers will likely push for severe regulations that will shutter many remaining clinics. Across the country, 31 states have implemented unnecessary abortion regulations such as waiting periods, requirements that clinics meet ambulatory surgical center standards, or obtain hospital admitting privileges. Today, even with Roe in place, millions of people are already facing massive obstacles when seeking safe, legal abortion services. An increase of new anti-choice policies will force more clinics to shutter, and leave many more women without access to abortion services.

Already, since the 2016 election, fundamental reproductive liberties have been repeatedly attacked. Emboldened by the current administration, many state legislators have proposed an onslaught of dreadful anti-abortion restrictions that seek to dismantle the core tenets of Roe. In 2017 alone, 19 states adopted 63 new abortion restrictions including a ban on abortion after the detection of a fetal heartbeat in Iowa or after the 15th week of pregnancy in Mississippi, the earliest ban in the nation. In Ohio, Republican representatives Ron Hood and Nino Vitale introduced a bill that would ban abortions totally, without exception. Under the bill, the fetus or “unborn human,” as defined in the law, would be considered a person under the state criminal homicide statutes, which means that abortion providers or people who have had an abortion could be charged with murder — a crime that’s punishable by death in the state. While the bill is brazenly unconstitutional, Hood and Vitale have revealed a calculated strategy to push extreme anti-choice laws up the judicial ladder in hopes of creating a constitutional challenge that would end the right to abortion.

Similarly, Justice Kennedy’s departure has shined new light on recently litigated cases that have been ruled unconstitutional by lower courts, such as Indiana’s HEA 1337 which was signed into law by Pence when he served as the state's governor. The legislation—which sought to restrict abortions on the basis of gene abnormalities that may cause severe disabilities—was overturned in federal appeals court as a violation of “well-established Supreme Court precedent.” Now, Indiana needs only to appeal up to the Supreme Court, and should the Court accept the case, an opportunity to redefine the future of abortion rights in America could be realized within the next year.

Consider the situation you are in at this very moment: are you able to purchase a last minute flight, rental car, and hotel room for several days if you needed to? How flexible is your employment arrangement? Do you have a network of support that could assist you in an emergency? These are the questions women already have to ask themselves in many states, and we all need to begin planning for this possibility.

If this bleak future wasn’t already dark enough, consider the experiences of expecting parents who are diagnosed with fatal pregnancy complications, such as Sheva Guy of Ohio, whose daughter was diagnosed with a fatal spinal abnormality at 22 weeks. Due to abortion regulations and long wait-times at the only clinic that could perform a second-trimester termination procedure, she was forced to travel 300 miles and spend over $3,000 to obtain an abortion. Her story is not unusual. In Texas, Taylor Mahaffey was forced to endure a stillbirth at 20 weeks due to state abortion restrictions. These laws aren’t humane, or necessary, and they do not make room for the nuance of women’s experiences. Abortion is shamefully classified as a hedonic extravagance, instead of a necessary medical procedure to preserve the life and wellbeing of women and families. There will be more stories like Sheva’s and Taylor’s. There will be more traumatic stillbirths, and there will be more pain and suffering.

This is not a dystopian fantasy or ominous prediction.

Before Roe v. Wade, thousands of American women were dying a year due to illegal abortions. Desperate, women were throwing themselves down staircases, ingesting pesticides, and thrusting sharp objects into their cervix, causing death, infertility, and illness. Worldwide, it’s estimated that 25 million unsafe abortions occur each year. This number will increase if abortion restrictions tighten in America, regardless if Roe is overturned. In countries where abortion has been criminalized, women who have miscarried have been sentenced to decades in prison and doctors have been fined for providing information about abortions online. What’s standing in the way of a similar future for us?

Already, in places like Texas where the average county is 111 miles from the nearest clinic, researchers at The University of Texas estimate that between 100,000 and 240,000 Texas women have attempted to self-induce an abortion at some point in their lives. Nationwide, Google search results demonstrate a growing interest in terms such as “how to self-abort,” with the highest occurrence in places such as Mississippi—where there’s only one abortion clinic left. We already know that the rate of teen suicide increases where abortion is unavailable, and we know that criminalizing abortion does not prevent women from terminating their pregnancies. In fact, a recent UN report classified an absence of abortion access as “torture.” Nevertheless, Pence has vowed that he, “will not rest until we restore a culture of life in America.” A cruel irony sharpened by truth that the so-called “culture of life” is paid for with the lives of vulnerable women.

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Unfortunately, we don’t have to imagine a world without Roe to feel the blow dealt by Justice Kennedy’s resignation. With the push to end abortion in many conservative states, we already have an idea of what the future will look like with increased regulations. Anti-abortion extremists sitting in Congress and the Trump administration have made no secret of their intentions. It’s clear that they will stop at nothing to chip away at our reproductive liberties until they’re gone. Let me be clear: This is not a dystopian fantasy or ominous prediction. We are, at this moment, witnessing the development of a strategic state-sponsored forced birth program. No matter what comes next for Roe, we must now turn our attention to what’s happening at the state level and stop the imposition of incremental violations intended to chip away at our reproductive liberties.