A 14-year-old girl came to my primary care clinic with abdominal pain, similar to abdominal pain she’s had intermittently for years. As with all women of reproductive age, I checked a urine pregnancy test, and it was positive. I returned to the patient’s room to talk with her about the result, and her first question was “how did that happen?”
A bit taken aback, I asked if she’d ever been sexually active. She reported that she recently became sexually active with her boyfriend for the first time, and after a thirty-minute discussion, she was adamant that she wanted an abortion.
At 14 years old and pregnant… not emotionally, financially, or psychosocially prepared to be a mother… our system had failed her in two ways: by not providing comprehensive sex education in public schools AND by restricting abortion in ways that make it nearly impossible for a 14-year-old to navigate on her own. Let’s take a look at the current state of reproductive health access in the United States.
Reproductive Health Jurisprudence
The 1973 Supreme Court case of Roe v. 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 v. 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 v. 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 v. Wade was impeded in the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. 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 v. 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 v. Casey.
2019 Developments in Abortion Restriction
Since the appointment of Brett Kavanaugh to the US Supreme Court in October 2018, many states have developed restrictive abortion bills as part of a “long-term strategy” to advance the cases to the US Supreme Court. According to Elizabeth Nash of the Guttmacher Institute, “2019 has become the year when anti-abortion politicians make clear that their ultimate agenda is banning abortion outright, at any stage in pregnancy and for any reason.”
Alabama
In May 2019, Alabama’s Republican Governor, Kay Ivey, signed the most restrictive abortion law in the nation, HB 314 Human Life Protection Act, which bans abortion in almost all cases, including rape and incest. This law would make performing an abortion at any stage in pregnancy a felony, punishable by up to 99 years of life in prison for an abortion provider. The only exception to this law is when a patient’s health is in imminent danger. Planned Parenthood and the American Civil Liberties Union (ACLU) have filed a lawsuit aimed at blocking this law before it takes full effect in November 2019.
Arkansas
In March 2019, Arkansas’ Republican Governor, Asa Hutchinson, signed into law a measure that bans abortion after 18 weeks gestation, which includes exceptions for rape, incest, and medical emergencies. This is a change from the existing law that bans abortions after 20 weeks gestation. Arkansas has also passed a “trigger” law, which would immediately trigger an abortion ban if Roe v. Wade is overturned. The ACLU plans to challenge this law in court.
Georgia
In May 2019, Georgia’s Republican Governor, Brian Kemp, signed a “heartbeat” bill, a law that bans abortion once a fetal heartbeat is detected. Fetal heartbeats can be detected within six weeks after conception, often before patients know they are pregnant. This law makes exceptions for rape and incest—if the patient files a police report first (which is often not filed on the part of the victim due to various psychosocial and societal factors)—and to save the life of the patient. The law also allows for abortion if the fetus is deemed non-viable due to serious medical anomalies. The ACLU plans to challenge this law in court.
Indiana
In April 2019, Indiana’s Republican Governor, Eric Holcomb, signed a bill that makes the commonly used second-trimester dilation & evacuation (D&E) procedure illegal. This law makes an exception for patients who would suffer “substantial and irreversible” physical damage from continuing the pregnancy. This law is set to take effect July 1, 2019. The ACLU plans to challenge this law in court.
Kentucky
In March 2019, Kentucky’s Republican Governor, Matt Bevin, signed a “heartbeat” bill, making abortion after detection of a heartbeat a felony. After the ACLU filed a lawsuit, a Kentucky judge blocked enforcement of the state’s fetal heartbeat law. In May 2019, a federal judge also struck down a 2018 abortion law that sought to make the commonly used second-trimester dilation & evacuation (D&E) procedure illegal. Governor Bevin has vowed to appeal the federal judge ruling. Kentucky has also passed a “trigger” law, which would immediately trigger an abortion ban if Roe v. Wade is overturned.
Louisiana
In May 2019, Louisiana’s Democratic Governor, John Bel Edwards, signed a “heartbeat” bill, a law that bans abortion once a fetal heartbeat is detected. Fetal heartbeats are generally detected within six weeks after conception, often before patients know they are pregnant. This bill does not make exceptions for rape or incest. The bill states that it will not take effect unless a similar law in Mississippi, which has already been challenged in court, is upheld. Governor Edwards is the first Democrat in 2019 to sign a “heartbeat” bill. The bill’s sponsor, Senator John Milkovich, is also a Democrat.
Mississippi
In March 2019, Mississippi’s Republican Governor, Phil Bryant, signed a “heartbeat” bill, a law that bans abortion once a fetal heartbeat is detected. The only exception to this ban is if the patient’s health is at extreme risk. This bill does not make exceptions for rape or incest. This law is set to take effect July 1, 2019, but it is currently being challenged in court by the state’s only abortion clinic and the Center for Reproductive Rights. Mississippi already mandates a 24-hour waiting period between an in-person consultation and the abortion itself, which requires patients to make at least two trips to clinic, often posing significant barriers for patients, particularly minority and low-income patients.
Missouri
In May 2019, Missouri’s Republican Governor, Mike Parson, signed a bill that bans abortion starting at eight weeks gestation. The only exception to this ban is when there is risk of death or permanent physical injury to “a major bodily function of the pregnant woman.” This bill does not make exceptions for rape or incest. This law is set to take effect on August 28, 2019. Physicians who violate this ban could face 5-15 years in prison. Patients who terminate their own pregnancies will not be criminalized.
Missouri also recently attempted to close the state’s only abortion clinic, Planned Parenthood in St. Louis, after state health officials reported the clinic was in peril because health officials were unable to interview seven Planned Parenthood physicians regarding “potential deficient practices.” Just prior to the clinic’s license expiration on May 31, 2019, St. Louis Circuit Court Judge Michael Stelzer issued a temporary restraining order that allowed Planned Parenthood to continue providing abortion care without license renewal. When hearings continued on June 4th, Judge Stelzer settled a “major piece of the license renewal standoff: the issue of whether Planned Parenthood doctors, including non-employee medical residents and fellows, would have to be interviewed by state investigators. The state called its interview request routine, while Planned Parenthood argued that questioning non-staff medical trainees was inappropriate and unreasonable.” Judge Stelzer sided with Planned Parenthood, thereby granting license renewal and continuation of safe abortion care.
North Dakota
In April 2019, North Dakota’s Republican Governor, Doug Burgum, signed a bill that makes the commonly used second-trimester dilation & evacuation (D&E) procedure illegal, stating that a physician who uses “clamps, grasping forceps, tongs, scissors, or similar instruments” during the abortion procedure would be charged with a felony, punishable by up to five years in prison and a $10,000 fine. The law states that patients who undergo this procedure will not be criminalized. This law makes exceptions for medical emergencies.
Ohio
In April 2019, Ohio’s Republican Governor, Mike DeWine, signed a “heartbeat” bill, a law that bans abortion once a fetal heartbeat is detected. The only exception to this ban is to save the life of the patient. This bill does not make exceptions for rape or incest. The law is set to take effect in July 2019. The ACLU plans to challenge this law in court.
South Carolina
In April 2019, the South Carolina House passed a “heartbeat” bill. This bill makes exceptions for rape, incest, and if the life of the patient is in danger. The bill is currently under consideration in the Senate.
Tennessee
In May 2019, Tennessee’s Republican Governor, Bill Lee, signed a “trigger” law, which would immediately trigger an abortion ban if Roe v. Wade is overturned.
Texas
In May 2019, the Texas Senate passed a bill eliminating exceptions for the state’s ban on abortion after 20 weeks gestation. Current exceptions allow for abortion if the fetus is non-viable or the fetus has “severe and irreversible” abnormalities. Senate Bill 1033 would eliminate these exceptions. The bill is currently under consideration in the House.
Utah
In March 2019, Utah’s Republican Governor, Gary Herbert, signed into law a measure that bans abortions after 18 weeks gestation, which includes exceptions for rape, incest, fatal fetal defects, fetal brain damage, and to protect the patient’s life or health. The law enacts criminal penalties for physicians who perform abortions after 18 weeks gestation. This law is currently being challenged in court by Planned Parenthood and the ACLU.
The following states are considering new restrictive abortion laws: Delaware, Florida, Idaho, Montana, Minnesota, New Mexico, Pennsylvania, and Wisconsin.
2019 Developments in Abortion Expansion
Illinois
In June 2019, Illinois’ Democratic Governor, J.B. Pritzker, signed into law the Reproductive Health Act, which is a comprehensive law aimed to expand abortion access in the state. Guttmacher Institute states this law “declares reproductive health care—including abortion, contraception, sterilization, and pregnancy and maternity care—a fundamental right in Illinois. The bill prohibits the state as well as local jurisdictions from interfering with individuals’ reproductive health decisions, including those of individuals in state custody. It is a clear statement of respect for the reproductive freedom and bodily autonomy of all Illinois residents.” This law does the following:
- requires public and private insurance plans in the state to cover abortion care, and
- expands the number of providers who can perform abortions, to include physician assistants and nurse practitioners, and
- protects access to abortion through 24 weeks gestation, as well as access after 24 weeks if deemed “medically necessary” by a physician, and
- ensures that abortion will remain legal in Illinois even if Roe v. Wade is overturned.
Maine
In June 2019, Maine’s Democratic Governor, Janet Mills, signed two bills that will provide for increased access to abortion in the state. These laws:
- require public and private insurance plans in the state to cover abortion care, and
- expand the number of providers who can perform abortions, to include physician assistants, nurse practitioners, and certified nurse midwives.
Nevada
In May 2019, Nevada’s Democratic Governor, Steve Sisolak, signed into law the Trust Nevada Women Act, which is a comprehensive law aimed to expand abortion access in the state. This law does the following:
- removes the requirement of providers to tell patients about the “emotional implications” of an abortion, and
- eliminates criminal penalties for patients who self-manage their own abortions, and
- removes the requirement that providers “certify a pregnant woman’s marital status and age” before performing an abortion.
New York
In January 2019, New York’s Democratic Governor, Andrew Cuomo, signed into law the Reproductive Health Act, which is a comprehensive law aimed to expand abortion access in the state. This law does the following:
- removes criminal penalties for abortion, including self-managed abortion, and
- expands the number of providers who can perform abortions, to include physician assistants and nurse practitioners, and
- allows abortion after 24 weeks gestation if the fetus is non-viable or there is risk to the patient’s health.
Vermont
In June 2019, Vermont’s Republican Governor, Phil Scott, signed the expansive abortion rights Bill H.57, which “recognize[s] as a fundamental right the freedom of reproductive choice” and “prohibit[s] public entities from interfering with or restricting the right of an individual to terminate the individual’s pregnancy.” This law also protects “rights to choose or refuse contraception or sterilization or to choose to carry a pregnancy to term, to give birth to a child, or to obtain an abortion.” This law protects abortion access throughout pregnancy, including after viability.
Massachusetts and Rhode Island are also considering new abortion expansion laws.
Massachusetts’ ROE Act (Act to Remove Obstacles and Expand Abortion Access) addresses the following:
- removes requirement for parental consent or judicial bypass for minors to access abortion care, and
- allows abortion after 24 weeks gestation in the case of fatal fetal anomalies, and
- establishes safety net coverage for abortion for people excluded from Massachusetts Medicaid, and
- reforms outdated state laws by removing medically inaccurate language, eliminating medically unnecessary abortion restrictions like an unenforced 24-hour waiting period, and codifying the principles of reproductive freedom into state law.
Public Health Framework
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.
More recently, the American College of Obstetricians & Gynecologists (ACOG) published a statement that directly addresses the 2019 abortion bans:
ACOG strongly opposes political efforts to limit a woman’s ability to get the care she needs, including bans on abortion care. ACOG recognizes that abortion is an essential component of health care for millions of women and opposes political interference in health care […] Across the country, legislation is advancing restrictions that would impose professional, civil, and even criminal penalties on physicians for providing safe, high-quality abortion care to their patients. These restrictions range from total bans to bans at arbitrary gestational ages, bans on the safest method of abortion after 12 weeks, bans based on a woman’s reason for seeking care, bans on medically-induced abortion via telemedicine, bans on physicians’ ability to exercise their best medical judgment according to their medical training, limits on which clinicians can provide abortion care, and more. Any of these restrictions would make safe and timely abortion care increasingly unavailable, which increases women’s health risks.
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.
Apart from policy, how do we bridge the gap between women’s rights activists and safe abortion care opponents? Stay tuned for a future post that explores the religious and ethical reasoning, as well as the historical context, that strongly influences the abortion debate.
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