Reproductive rights have been a topic for policy making and legal jurisprudence throughout much of the past century. As the healthcare system of the United States continues to evolve, women’s health and reproductive rights remain central to the debate.
I previously authored a post here at The Medical Care Blog which discussed religion-restricted healthcare and its effects on reproductive health needs. This week’s follow-up discusses how we balance the competing interests of providers who have ethical and/or religious objections to specific medical care with the rights of patients who seek reproductive healthcare.
This discussion was prompted by the recent development of the United States Department of Health and Human Services Division of Conscience and Religious Freedom. The new division aims to protect physicians, nurses, and other healthcare workers from engaging in care that is not in line with their religious beliefs. However, for patients who only have access to a religious-affiliated hospital or clinic, there are legitimate concerns that these protections might further compromise their access to reproductive healthcare.
Reproductive Health Jurisprudence
The 1973 Supreme Court case of Roe vs Wade declared the Texas criminal abortion statutes unconstitutional. The majority opinion held that, “The right of privacy … founded in the Fourteenth Amendment’s concept of personal liberty … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Furthermore, the Roe court concluded access to abortion to be a fundamental constitutional right, which requires a compelling state interest in order to infringe on this right to abortion. Roe vs Wade also addressed viability and constructed the trimester scheme, which has continued to play a role in further abortion jurisprudence. The trimester scheme constructed in Roe vs Wade indicates the following:
- Abortion cannot be regulated in the first trimester;
- Abortion regulations can only be implemented from 24-28 weeks gestation for purposes of protecting maternal health (e.g. informed consent requiring physicians to describe procedural risks to woman); and
- Starting at the point of viability, the state may enact legislation to protect potential life so long as the legislation does not deny abortion to women who are at risk of serious health injury or death.
The majority rule from Roe vs Wade was impeded in the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania vs Casey, which granted permission to states to regulate abortion prior to viability so long as state regulations do not create undue burden for women seeking abortions (the so-called balancing test). The most recent federal abortion jurisprudence is the 2016 Supreme Court case of Whole Woman’s Health vs Hellerstedt. The majority opinion declared the Texas Omnibus Abortion Bill (HB 2) unconstitutional, thereby reaffirming the balancing test established in Planned Parenthood of Southeastern Pennsylvania vs Casey.
Religious Freedom Argument
The First Amendment protects religious freedom, which is defined as an individual’s right to practice or to not practice any religion, as well as an individual’s right to be free from religious coercion [PDF]. Importantly, the Establishment Clause [PDF] of the amendment requires that the government remain neutral by stating that the government “shall make no law respecting an establishment of religion.” Furthermore, the Free Exercise Clause [PDF] safeguards the right to practice religion by stating that the government “shall make no law…prohibiting the free exercise [of religion].” As interpreted by the United States Supreme Court [PDF], religious freedom also includes each individual’s right to be free from religion and does not include a right to force one’s religion on others.
Public Health Framework
Some persons who oppose public funding of abortion note that although abortion is legal, denial of public funding is a fair compromise to the interests of those who strongly oppose abortion for religious or moral reasons (and thus, prefer not to contribute financially to abortion care via taxpayer dollars). However, Sheelagh McGuinness, University of Bristol health law professor, argues that “This model…fails to take a woman’s interest in controlling her body as a starting point for shaping a policy that places restrictions on her ability to act in certain ways. Poor women are being denied their agency and the right to construct themselves as full citizens.”
- Codifying the government’s right to provide a lower standard of health care coverage based on gender and income and treating funding for abortions for low-income women differently, even though abortion is a legal health care service;
- Treating abortion differently from other health care services, thereby stigmatizing it; and
- Fragmenting women’s interests in and experiences of access to abortion by income and by characteristics associated with income, including race/ethnicity, level of education, and geographic location.
Next, access to reproductive healthcare is key to the social and economic empowerment of women in society.
- Women are empowered in society through education; access to reproductive healthcare, including safe abortion care, plays a significant role in this empowerment, as it increases the odds that women will graduate from high school, college, and professional programs.
- The Guttmacher Institute reports that access to contraception has resulted in more women pursuing and graduating from college, which results in increased earning power and a decreased gender pay gap.
- Financial and geographic access to reproductive healthcare is widely accepted as the primary mechanism for reduction and prevention of adolescent pregnancy.
- The Centers for Disease Control and Prevention (CDC) states that adolescent pregnancy is a significant contributor to high school dropout rates for young women.
- CDC also states that only about 50% of adolescent mothers achieve a high school diploma by the age of 22 years old, whereas 90% of female students who are not adolescent mothers graduate from high school.
In 2015, the American Public Health Association approved a policy that states:
Conscientious provision of abortions should be recognized and promoted, with affirmative and public assertion of the value of abortion care. Such care should be framed as an extension of health care clinicians’ requirement to place patients’ needs as the highest priority in providing treatment.
Reproductive health has been the subject of debate by politicians and religious leaders alike for much of the past century. However, we must consider the ethics of the restrictive measures often placed on reproductive rights. The guiding principles of bioethics include autonomy, beneficence, utility, and justice. With these principles in mind, we must carefully balance religious freedom with the right to reproductive healthcare in this country.
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