News

Abortion restrictions: We have been here before,
and here is what we learned

 

JUNE 19, 2019 | Kathryn Kolbert | HEALTH, POLITICS

As abortion restrictions proliferate, protesters around the country are making their voices heard. Photo by Fibonacci Blue from Minnesota, USA [CC BY 2.0].

Over the last several months, a plethora of states have passed onerous restrictions on abortion. Pundits have called this onslaught unprecedented. While it is certainly true that the number of states successfully passing anti-abortion bills within a short window of time is the worst we have ever seen, the tactics we are seeing today have been used repeatedly over the last several decades. These tactics include bans on abortion at particular stages of pregnancy, after there is a detectible cardiac activity, for example, or after 20 weeks of gestation; bans on abortions for particular reasons such as sex selection or fetal anomalies; or laws that ban particular types of abortion procedures, usually those used in the second trimester. The Alabama law, considered the most onerous of all time, prohibits all abortions except those necessary to save the life of the woman, an extremely rare occurrence. In the early 1990s, Utah, Louisiana, and Guam also banned nearly all abortions, and other states were considering such measures.

Other current legislative activity restricting access to abortion has its roots in earlier decades. Between 1988 and 1992, as now, state legislatures across the country considered and passed a host of restrictions intended to intimidate doctors or to make abortion more expensive for women or more difficult to obtain, particularly for poor women, young women, or rural women.

The flurry of activity in the 1990s and now were driven by the changing composition of the Supreme Court. Then as now, anti-abortion legislators believed that the Supreme Court was poised to overturn Roe v. Wade and wanted to push test cases to the Court to ensure review of the constitutional standards that protect legalized abortion.

In 1992, I represented the abortion providers of Pennsylvania who were challenging restrictions on abortion in the seminal case Planned Parenthood v. Casey. My co-counsel and I fully expected the Supreme Court to reverse Roe v. Wade in our case. In fact, the Court after oral argument voted to overrule Roeand permit states to recriminalize abortion. Any legislative restriction, so long as it was rational (and protection of fetal life was considered rational), would be permissible.

To our surprise, we got a reprieve. Justice Kennedy changed his vote and supported a joint ruling that preserved legal abortion up to viability and thereafter if necessary to protect women’s health. At the same time, the Court gave states additional latitude to restrict abortion. In the intervening 27 years, abortion has remained legal and available in every state, albeit with additional hurdles that adversely affect poorer and younger women.

When considering the constitutionality of these new laws, I start with the premise that the current Court is likely to use any abortion case, not just the bans on abortion, to give states the ability to recriminalize abortion. Why am I so pessimistic? First and foremost, the Supreme Court today is more conservative than in 1992 and Chief Justice Roberts, unlike Justice Kennedy, has shown his willingness to overturn precedent if five members of the Court disagree with the initial basis for the decision. Just this term, he joined the opinion of the Court in Franchise Tax Board of California v. Hyatt, in which the liberal dissenting justices cautioned that reversing “a well-reasoned decision that has caused no serious practical problems in four decades” caused them “to wonder which cases the Court will overrule next.” And the chief justice has sided with anti-abortion advocates, voting in 2007 to uphold a federal late-term procedure ban and dissenting in 2016 when the Court struck down onerous Texas provisions that targeted abortion providers and restricted access in that state. It is not clear when the Court might accept a case for review, as they may want to avoid the issue before the 2020 elections, but I am confident that the end of federal constitutional protection for abortion will happen.

Contrary to many pundits, I also believe that once states are given the green light to recriminalize abortion, many will do so and do so quickly. Five states already have trigger laws that may automatically ban abortion with only very limited exceptions, once Roe/Casey are overturned, and at least two other states are considering similar laws. As noted by The New York Times, for the first time in over 100 years, Republicans control the governor’s seat and both houses of the legislature in 21 states, and these legislative bodies are overwhelmingly opposed to abortion and indebted to the anti-choice lobby. State legislative gerrymandering and voter suppression in these states will make it very difficult to overturn this trifecta of power in many locales.

Third, I believe that those who oppose abortion will not stop when abortion is made illegal in some states. Anti-choice advocates will push to limit women’s rights in a wide range of circumstances, pushing for restrictions on birth control, limiting funding for Planned Parenthood and family planning services, expanding fetal rights, diminishing protections for survivors of domestic violence and sexual abuse and harassment, rolling back marriage equality, and more.

What did we learn from our experience in Planned Parenthood v. Casey? What can we do now to help preserve the constitutional liberties that generations of women have relied upon for nearly 50 years?

I learned from Casey that pro-choice Americans must prepare for the likelihood that Roe will be overturned, and work to ensure that as many women in the nation as possible understand that future access to necessary health services is in jeopardy. We cannot wait until rights are lost. We need to begin now to fight for their preservation. Almost everywhere I go, there is the hope that this will not happen, that Justice Roberts will go slowly, that women are being alarmist. We need to believe that our rights are in jeopardy and work to preserve them.

I also learned that public resistance makes a difference. Between 1988 and 1992, pro-choice Americans attended large-scale demonstrations in Washington and at state legislatures, joined political campaigns to elect a pro-choice president and Congress, and made their voices heard in the public arena. This public resistance helped increase public support for Roe v. Wade and made abortion a big issue in the 1992 presidential campaign.

As we recently saw, public resistance did not derail the appointment of Justice Kavanaugh to the Supreme Court. Nevertheless, it activated women across the nation to become politically active in the 2018 elections and to run for office in unprecedented numbers. The pictures of women sitting in the halls of the Senate, challenging the status quo, helped spread the message that the federal courts are now in the hands of conservative forces and that we will need to find protections in other venues.

But in addition to public resistance, those who care about reproductive justice must become politically active — not just on social media or in the voting booth, but in both federal and state-level campaigns. Canvassing, texting, phone calls, and postcarding, as well as fundraising for pro-choice candidates, while tedious, is the best way to win elections.

The strategy is simple: At the federal level, we need to win back the presidency and the U.S. Senate. Some of the 23 Democrats running for president or prominent Democrats sitting on the sidelines should run for the Senate so that we can relegate Mitch McConnell to minority leader.

Equally important, we need to break up the trifectas, in which Republicans control the governorship and both houses of the legislature in 21 states. Flipping gubernatorial seats, reducing the margins of control, and where possible flipping control in one or both houses should be our primary goals. There are currently only 18 states that are controlled by Democratic pro-choice lawmakers. Some of them have already moved to weave a patchwork of protections for reproductive choice for women in those states. We need to expand that number, and it can be done. For example, there are realistic chances of winning back one or both chambers in Virginia and Pennsylvania in 2020, and hard work at the state level will make a difference.

And of course, the election or appointment of state supreme court judges must be on our priority list. State courts have the ability to interpret their state constitutions in ways that protect women, even if that protection is not available at the federal level. The Kansas Supreme Court recently established a state right to abortion that will remain, even if Roe is overturned. The right wing has paid attention to state Supreme Courts and invested in running conservative candidates for the last decade. We need to do the same.

Lastly, we need to pay attention to voting rights, for voting rights is a women’s issue. Gerrymandering and voter suppression enable conservative minorities to preserve power, even in the face of public opposition. Expanding the electorate is a key way to win more support in states that are passing these draconian laws. The recent close election in Georgia is but one example of how voter suppression skewed the election, and there are many more.

My experience in Planned Parenthood v. Casey has taught me that there is no substitute for public resistance and political activism. Please share these lessons and get to work.

 

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WHOEVER SAID NUMBERS DON’T LIE?

In 2017, the CDC was proud to announce that 26 states had met the 2000 target of 6.0 infant deaths per 1,000 live births. Time to celebrate? Unfortunately, a closer look at the data reveals a disturbing inequity. For non-Hispanic White mothers, the infant mortality rate was 4.9. For African-American mothers, the rate was 11.4. Geographically, infant mortality rates were highest among the southern states of Oklahoma, Arkansas, Tennessee, North Carolina, Mississippi, Alabama, and Georgia. Rates were also higher in the midwestern states of Indiana and Ohio. Clearly, culture is a factor, and the cumulative stress of racism and sexism inordinately undermines the health of African-American mothers and their offspring.

In light of this data, the Center for American Progress has called for policymakers to improve the quality of care for African-American mothers and their infants by taking these steps:

• Provide more and easier access to affordable health care
• Recruit a diverse, compassionate, and respectful workforce
• Screen for and address each mother’s mental health as well as physical health
• Continue to support both mother and child after birth through home visits and connections to community programs

Finally, federal policymakers have a responsibility to continue to collect and disseminate reliable, consistent data on maternal and infant mortality in order to identify data-driven solutions.

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