The Modern Politics of Abortion: State Laws and the Debate on Women’s Reproductive Rights
Although Roe v. Wade (1973) is recognized as a landmark in the history of abortion law, partisan politics has since emerged as a driving force in the anti-abortion care: Texas House Bill 2 (HB2), passed in 2013, is an example of one such law. Purported to safeguard women’s health, HB2 was prohibitively expensive for clinics and patients alike – and deemed medically unnecessary by many leading health organizations.
Despite de absence of medical justification for the law, HB2 forces the shutdown of dozens of clinics across Texas. Wendy Zhang’ 17’s presentation will examine the legal precedent for HB2 and discuss the impact of the Trump Administration on national reproductive rights.
Faculty Advisor: Mike Barker, Director of Academy Information and Library Services.
VIDEO LINK COMING SOON
THE MODERN POLITICS OF ABORTION:
STATE LAWS AND THE DEBATE ON WOMEN’S REPRODUCTIVE RIGHTS
I. Autobiographical Statement
Growing up, I always viewed the law as the antithesis of innovation. The United States
Constitution—the highest law of the land—seemed the perfect testament to this view: drafted nearly two a half centuries ago, it still serves its original purpose with little modification. Meanwhile, a rigidly hierarchical judiciary decides cases based on legal precedent (typically choosing to err on the side of conservatism), and a gridlocked Congress struggles to keep pace with the changing needs of the American people. Yet, as my interest in politics grew, so did my appreciation for the law: beneath its static appearance lay a dynamic system of inner workings, fundamentally intertwined with science, ethics, politics, and human rights. For example, when geneticists perfected the technology of human DNA editing, legal scholars pondered the optimal form of regulation; when civil rights activists pushed for racial desegregation, the Supreme Court
struck down on “separate but equal” facilities; and when Native American tribes sought
reparations for past and current injustices, litigators advocated for fair settlements and restoration of land rights. Throughout our nation’s history, the law has been used as a tool for both oppression and freedom, for both preservation and progress.
In 2015, a high-profile political controversy sparked my interest in abortion law: Planned
Parenthood, a national provider of women’s health services, came under fire for a series of videos documenting its sale of aborted fetal tissue. Although the act of selling fetal tissue is legal in the United States, many Planned Parenthood critics saw this as morally reprehensible and called on Congress to defund the organization. Yet, beyond the political arena, many women depend on Planned Parenthood for services—such as breast cancer screening, contraception, and abortion—that they otherwise would not be able to afford. Unfortunately, the Planned Parenthood controversy marks an era in which attacks on women’s reproductive rights have become increasingly commonplace in public discourse, especially during election season.
As a strong believer in reproductive choice, I felt compelled to educate myself on the current policies surrounding these issues. In doing so, I found several alarming statistics: not only has the number of abortion providers in the U.S. fallen over 40% since 1982, but more abortion restrictions were enacted between 2011 and 2013 than in the previous decade combined (Johnsen 42-43). How could this happen 40 years after the Supreme Court recognized abortion as a constitutional right? Digging deeper, I came across House Bill 2, a widely controversial anti-abortion bill passed in Texas in 2013, which eventually became the subject of this research paper. I hope that my research will shine a light on the politicization of abortion in the US since Roe v. Wade and strengthen the dialogue surrounding reproductive choice.
I would like to thank the Brace Center for Gender Studies for giving me the opportunity
to explore this topic in depth and share my findings with the Andover community. I am deeply grateful for the help of Dr. Vidal, Dr. Hawthorne, and Ms. Tompkins, whose ideas and contributions guided me through the research process. Most importantly, I would like to thank my advisor, Mr. Barker, without whom none of this would have been possible. His constant enthusiasm, insightful comments, and unwavering support have been crucial to the success of this project.
Although the Roe v. Wade Supreme Court decision of 1973 is often recognized as a
landmark in the history of abortion law, the controversy surrounding abortion began long before Roe and endures to the present day. A myriad of factors have shaped this controversy, from gender stereotypes to medical ethics to religious beliefs. However, in the years since Roe, partisan politics has emerged as a driving force in the anti-abortion movement, paving the way for new laws designed to limit access to abortion care: Texas House Bill 2 (HB2), an omnibus anti-abortion bill passed in 2013, represented one such law. In addition to banning most abortions after 20 weeks of pregnancy, this bill required abortion doctors to obtain admitting privileges at a local hospital, women seeking medical abortions to schedule two additional appointments, and clinics to meet the rigorous standards of ambulatory surgical centers. Though these regulations were purported to safeguard women’s health, they were expensive and prohibitive for clinics and patients alike and deemed medically unnecessary by many leading medical organizations, including the American Medical Association and the American College
of Obstetricians and Gynecologists. For instance, while the mortality rate of abortion is 32 times lower than that of liposuction, no law requires the latter procedure to be performed in an ambulatory surgical center (Parker 14). In the absence of sufficient medical justification, HB2 forced many clinics unable to comply with the new regulations to shut down, creating significant barriers for women seeking abortions across Texas.
Despite the prevalence of laws like HB2, the issue of legal justification has remained
largely subjective due to the undue burden standard established by Planned Parenthood v. Casey in 1992. Casey was a Supreme Court decision that upheld Pennsylvania abortion laws requiring parental notification for minors and 24-hour waiting periods post-consultation and pre-abortion, among others, but most importantly it presented an opportunity for the Court to revise the existing legal framework of Roe v. Wade. In Casey, the Supreme Court granted states the right to impose regulations as long as they did not constitute an undue burden that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” This language was vague and easily manipulable, allowing states hostile to abortion rights to pass onerous laws that severely limited access to abortion care. In 2014, the Center for Reproductive
Rights filed a lawsuit challenging HB2; after a series of decisions and appeals, Whole Woman’s Health v. Hellerstedt was ultimately heard by the Supreme Court, which ruled to invalidate the Texas law in June of 2016. This recent decision established a new legal precedent, compelling lower courts to weigh state legislatures’ findings about what is necessary for women’s health against the evidence submitted by abortion providers and advocates, making medical justification an essential component of legal justification. In doing so, Whole Woman’s Health restores reproductive rights to women across the country. Beyond the legal argument, however, it is essential for state legislators to recognize and honor the complex social, economic, and moral factors that inform an individual abortion decision. This paper will examine how, under a vague interpretation of the undue burden standard, Texas House Bill 2 encroached upon women’s
reproductive rights and undermined their basic autonomy. Furthermore, it will argue that Whole Woman’s Health v. Hellerstedt is a crucial step in the movement towards gender equality.
III. Roe v. Wade (1973) and Political Polarization
In 1970, a woman under the pseudonym of Jane Roe challenged a Texas law that
prohibited abortions at any point of gestation, unless performed to save the life of the mother. Three years later, the Supreme Court ruled 7-2 in favor of the petitioners, marking a huge victory for reproductive rights. Although many Americans view Roe v. Wade as a singular, defining event, the movement to decriminalize abortion had already begun to gain momentum in the decade preceding Roe. This can be attributed to a variety of factors.
First, as medical knowledge evolved in the early to mid 1900s, abortions performed by competent physicians in the first trimester of pregnancy became safer than childbirth, thus decreasing the medical stigma surrounding abortion (Mohr 254). According to a 1967 survey conducted by Modern Medicine magazine, 87% of American physicians supported the liberalization of abortion laws—a radical
reversal of the medical establishment’s strong anti-abortion stance in the mid-1800s (Mohr 256).
Second, despite the Food and Drug Administration’s approval of the birth control pill in 1960, a projection of the nation’s birthrates into the next century continued to raise concerns about overpopulation. With the establishment of government-funded contraceptive programs in 1967, abortion reform seemed like a logical next step. Soon, prominent feminist voices joined the movement, promoting reproductive freedom as a cornerstone of self-governance for women. In 1969, Betty Friedan, the founding president of the National Organization for Women, became one of the first leaders in the women’s movement to explicitly embrace abortion reform as a feminist cause. She called upon women to mobilize in support of reproductive choice, maintaining that “there is no freedom, no equality, no full human dignity and personhood possible for women until we assert and demand the control over our own bodies, our own reproductive process…” (Greenhouse, “Before (and After) Roe v. Wade” 2043).
Due to a convergence of several factors, the stage had already been set for abortion reform by the time the Supreme Court handed down its decision on Roe in 1973. Nevertheless, its impact was profoundly transformative, both legally and politically.
From a legal standpoint, Roe recognized abortion as a limited constitutional right based
on three intersecting arguments. First, the Court held that every citizen had a constitutional right to privacy, which extended to intimate matters affecting a person’s life and future; in essence, this meant that women had the freedom to choose whether to terminate a pregnancy (Mohr 248). Second, the Court held that states had a legitimate interest in protecting maternal health. Third, it held that states had the right to protect potential human life after fetal viability, or the point at which a fetus can survive outside of the womb. This generally occurs between 24 and 28 weeks of pregnancy (Masci). Consequently, the Court settled on a three-tiered framework to define the legal limits of abortion at each stage of pregnancy. In the first trimester (0 to 12 weeks), states
could only impose basic health safeguards without limiting access because the risks associated with abortion were lower than those associated with childbirth (Masci). From the end of the first trimester to the point of fetal viability, states could regulate abortion in the interest of protecting maternal health. After fetal viability, states had the freedom to restrict or ban abortions in the interest of protecting fetal life, except in cases where the mother’s life was at risk. Following Roe, all but four states rewrote their abortion laws to comply with the newly established three- tiered framework, effectively diminishing previous disparities between states (Williams 524).
From a political standpoint, Roe marked the introduction of abortion into the GOP
platform. Historically, the GOP had been the party of women’s rights: in the early 1900s,
Republican lawmakers fought for the ratification of a major constitutional amendment enforcing equal protection for women under the law, called the Equal Rights Amendment (Rosenberg 249). In the years before Roe, Republicans had led the movement to decriminalize abortion: in 1967, Republican Governor Ronald Reagan signed a major abortion reform bill in California, and three years later, Republican Governor Nelson Rockefeller signed a similar bill in New York (Rosenberg 249). According to a Gallup poll conducted the summer before Roe, 68% of
Republicans agreed with the statement that “the decision to have an abortion should be made solely by a woman and her physician,” compared to only 59% of Democrats (Greenhouse, “Before (and After) Roe v. Wade” 2054). Furthermore, Roe’s seven-Justice majority included five Republicans. However, when the Roe decision triggered major backlash among Catholics and social conservatives, Republican party leaders saw an opportunity to divide Democrats and attract new votes. In the 1960s, roughly two-thirds of Catholic voters were Democrats, forming a major voting bloc (Williams 516). Since the timing of Roe coincided with the 1972 Presidential elections (the oral arguments for Roe were heard twice, in 1971 and 1972), Republican party strategists encouraged Nixon to adopt a strong anti-abortion stance to appeal to Catholic voters. In an essay for the New York Times published in August 1972, Republican strategist Kevin Phillips encouraged Republicans to make an aggressive effort to court the Catholic vote by portraying abortion as an issue that undermined traditional societal values (Phillips 35).
However, after Nixon’s Watergate scandal unraveled in 1974, Republicans temporarily eased back on their anti-abortion position. It was not until 1979 that Republicans began to vote against abortion in Congress at a higher rate than Democrats (Greenhouse, “Before (and After) Roe v. Wade” 2069). In a 1980 revision of the GOP platform, Republicans officially declared their anti-abortion stance: “We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life” (“Republican Party Platform of 1980”). Over the next few decades, this change resulted in significant party realignment: an analysis of U.S. General Social Survey data revealed that attitudes toward abortion became increasingly polarized between 1972 and 1992, with religious liberals favoring
more conservative positions (DiMaggio 715, 730). More recently, according to a 2013 Pew
Research Center survey, only 35% of Republicans supported abortion, compared to 69% of Democrats (Greenhouse, “Before (and After) Roe v. Wade”). This realignment gave anti-abortion advocates the political clout needed to exert influence on public policy. In 2013 and 2014, among 24 states that enacted abortion restrictions, 19 of them had Republican-controlled state legislatures and governorships (Rosenberg 252). Among the five remaining states with split legislatures and governorships, Democratic governors had their vetoes overridden in Arkansas, Michigan, and Missouri (Rosenberg 252).
IV. Planned Parenthood v. Casey (1992) and Undue Burden
In 1992, the Supreme Court heard Planned Parenthood v. Casey, a case brought forth by
the Planned Parenthood of Southeastern Pennsylvania. Planned Parenthood claimed that the 1988 and 1989 amendments to the Pennsylvania Abortion Control Act of 1982—requiring physician information disclosure (informed consent), parental notification for minors, husband notification for married women, and 24-hour waiting periods prior to undergoing an abortion—were unconstitutional. The first major abortion case since Roe, Casey had the potential to either uphold or overturn the central tenets of Roe. 19 years after Roe and 12 years after the official revision of the GOP platform, the composition of the Court had changed drastically. Six new Justices had been appointed since Roe, all Republicans: John Paul Stevens, Sandra Day O’Connor, William H. Rehnquist, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. In a 5-4 ruling, the Supreme Court reaffirmed the right to an abortion as established by Roe, citing the Due Process Clause of the Fourteenth Amendment, which protect certain rights that are not explicitly mentioned in the Constitution (Chapman). However, as the existing three-tiered framework of Roe no longer commanded a majority on the Court, the Justices who penned the majority opinion in Casey replaced it with the undue burden standard, which had been advocated by Justice O’Connor in previous opinions, but was never adopted as the official precedent for abortion cases (Kassop). In the majority opinion for Casey, Justices O’Connor, Kennedy, and Souter defined an undue burden as a requirement that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (O’Connor). This new standard was a regression in terms of both rigor and clarity. The Casey decision was problematic for several reasons. First, the terms “undue burden” and “substantial obstacle” were inherently subjective, allowing states hostile to abortion rights to justify onerous laws designed to further limit abortion access. While Roe forbade all efforts to protect potential life before the point of fetal viability, Casey stated that: “the State has legitimate
interests from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child” (O’Connor). Thus, Casey encouraged states to intervene in the abortion process as long as they did not overtly ban the procedure. Following Casey, anti-abortion politicians were able to exploit the undue burden standard to pass restrictive abortion laws in the name of protecting women’s health and fetal life. Not only did this create substantial barriers for women seeking abortion care, but it also reinforced the view that women needed help to make positive decisions for themselves and the societal structure as a whole. By emphasizing the state’s interest in protecting maternal health and potential life, and thus labeling abortion laws as protective rather than restrictive, the Court suggested that neither a woman nor her
physician was capable of weighing the moral and medical choices involved in an abortion decision (Cheu 116, 126). Furthermore, this rhetorical strategy portrays state authorities as public defenders who seek to protect women from their own actions and decisions.
V. Texas House Bill 2 (2013)
Texas House Bill 2 (HB2), a major anti-abortion bill authored by Texas state representative Jodie Laubenberg, was signed into law by Governor Rick Perry on July 18, 2013. Just three weeks prior to the passage of HB2, an 11-hour filibuster had thwarted the passage of a nearly identical bill in the Texas Senate. However, this act of resistance ultimately proved futile. With 41 Republican sponsors and 0 Democratic sponsors, HB2 was swiftly approved with strong partisan support. In addition to banning most abortions after 20 weeks post-pregnancy, HB2 required abortion doctors to obtain admitting privileges at a hospital within 30 miles of their practicing clinic, women seeking medical abortions to schedule two additional appointments, and clinics to meet the rigorous standards of ambulatory surgical centers (ASCs).
First, the admitting privileges requirement posed a significant barrier for abortion
providers because many hospitals condition the awarding of admitting privileges on the number of patient admissions, and these quotas are impossible for most abortion providers to meet because of the low rate of hospitalization for abortion patients (Greenhouse, “Casey and the Clinic Closings”). For example, two clinics in McAllen and El Paso that collectively performed upwards of 31,000 abortions required the transfer of only two patients between 2006 and 2016 (Lebowitz 33). Hospitals are also allowed to deny admitting privileges for other reasons, including an ideological opposition to abortion. Although the admitting privileges requirement supposedly ensured continuity of care in the case of a medical emergency, this could otherwise have been achieved through a simple patient transfer agreement between the clinic and a local hospital, which was the accepted practice before the passage of HB2. On the day that the
admitting privileges requirement took effect, 11 clinics shut down, a significant fraction of the 40 clinics that existed before HB2 (Whole Woman’s Health, Et Al., Petitioners 12).
Second, HB2 required women seeking medical abortions (otherwise known as chemical
abortions) to schedule two additional appointments. Medical abortions are typically administered in two doses: before HB2, physicians commonly administered the first dose at the abortion facility while the patient administered the second dose at home, but the new law requires the second dose to be administered at the abortion facility. Additionally, it requires the patient to schedule a follow-up appointment after the abortion (Schmucker 121). For many women, especially women living outside of the metropolitan areas where the remaining clinics were concentrated, making multiple trips to the clinic requires significant time, energy, and planning. Moreover, this posed significant barriers for low-income women who could not afford additional
travel and lodging expenses.
Third, upgrades to meet ASC requirements could cost clinics between 1.7 and 2.6 million
dollars, even though they have been deemed medically unnecessary due to the low risk of complications (Richey, “In Texas, a Side of Abortion Few Ever See”). In many cases, these upgrades are arbitrary and frivolous. Three such examples from the Texas Health and Human Services Commission’s 105-page document detailing ASC requirements are: “the minimum width of doors requiring access for beds and gurneys shall be three feet eight inches” (Title 25 Texas Administrative Code 67), “the minimum ceiling height shall be eight feet six inches” (Title 25 Texas Administrative Code 69), and “all ice-making machines used for human consumption shall be of the self-dispensing type” (Title 25 Texas Administrative Code 84). Some of these structural specifications entailed the complete renovation of an existing abortion facility. In the two-week period that the ASC requirements were in effect, over a dozen abortion facilities closed; these facilities later reopened when the ASC requirements were temporarily blocked during judicial review (Whole Woman’s Health, Et Al., Petitioners 14). In April 2014, the Center for Reproductive Rights filed a lawsuit against the health commissioner of Texas on behalf of 5 Texas clinics and 3 physicians, challenging the admitting privileges and ASC provisions of HB2. In August 2014, the District Court for the Western District of Texas ruled to block the admitting privileges and ASC provisions, but one month later, the United States Court of Appeals for the Fifth Circuit lifted the district court’s injunction, allowing Texas to enforce the challenged provisions (Cahn-Speyer 211). Based on different interpretations of the undue burden standard established by Casey, the District Court and Court
of Appeals had arrived upon different decisions, once again demonstrating the problematic subjectivity of this standard. While the Center for Reproductive Rights prepared a petition for review by the Supreme Court, the Supreme Court temporarily blocked the enforcement of the challenged provisions. This case later became known as Whole Woman’s Health v. Hellerstedt.
VI. Whole Woman’s Health v. Hellerstedt (2016) and Gender Equality
In 2016, the Supreme Court heard the oral argument for Whole Woman’s Health v. Hellerstedt. At issue in this case were the admitting privileges and ASC provisions of HB2,
which the petitioners claimed violated the undue burden standard. The Justices sought to
determine whether HB2, in the language of Casey, placed a “substantial obstacle” in the way of women seeking abortion care. The Court ultimately ruled 5-3 in favor of the petitioners, finding HB2 in violation of the undue burden standard and therefore unconstitutional. By doing so, it established a more comprehensive and objective framework for evaluating state abortion laws, placing women’s experiences at the center of the narrative. The majority opinion in Whole Woman’s Health indicated that state legislatures’ findings about what is necessary for women’s health will now be considered alongside, and weighed against, the evidence that abortion providers and advocates
offer in filings, testimony, and other submissions to the court (Hollis-Brusky, “Two Ways
Breyer’s Opinion Could Transform Abortion Politics”). In essence, this means that courts can and should question claims on a given law’s health, safety, and medical benefits to determine whether the law is reasonable and medically justified. Although Whole Woman’s Health preserves the undue burden test established by Casey, it declares that if the law does not serve any real health purpose, it could fail the undue burden test.
The Whole Woman’s Health decision has serious and wide-ranging political implications.
Considered a major setback for the pro-life movement, the Whole Woman’s Health decision will increase the burden of proof for state legislators who seek to impose burdens on women seeking abortion care. However, as evidenced by Roe, Casey, and other cases in which state and federal courts have aimed to curb abortion restrictions, anti-abortion advocates will continue to seek new ways to undermine abortion access regardless of the legal outcomes of such cases. Phil King, one of the original sponsors of Texas HB2, issued an official statement following the Whole Woman’s Health decision: “Today the US Supreme Court again decided to be a legislature. Four judges decided that abortions do not need to be at medically safe clinics. And that abortion doctors don’t need to be qualified to practice at local hospitals. I am not sure where we go next,
but I assure you that I will continue to fight for unborn babies and for the health and safety of women” ( Supreme Court on HB2).
Like Roe and Casey before it, the Whole Woman’s Health decision reaffirms the
constitutional right to an abortion and the importance of reproductive choice. However, the issue of reproductive choice has implications for women’s rights at large. Since the late 1970s, abortion has gained prominence an issue of social morality, a symbolic marker between those who wish to maintain “traditional family values” and those who seek to challenge them. Through a feminist lens, the regulation of abortion is problematic insofar as it grants states the power to hinder, and in some cases, override, women’s abortion decisions, limiting their ability to determine their own futures. States may fail to recognize that complex factors inform an abortion decision, as caring for a child may interfere with other economic, social, personal considerations. Although adoption is commonly presented as an alternative to abortion, the two are not
interchangeable, as adoption implies full-term pregnancy and delivery. According to a 2004 survey published in Perspectives on Sexual and Reproductive Health, women cited several reasons for seeking an abortion. 74% of women said that having a child would interfere with their education, work or ability to care for dependents; 73% said that they could not afford a baby at the moment; and 48% said that and that they did not want to be a single mother or were having relationship problems (Finer 110). Although an enduring stigma surrounds the act of prioritizing economic considerations over moral ones (i.e. – terminating a potential life) or social ones (e.g. – unsupportive friends and family members), all three are valid and respectable reasons to terminate a pregnancy, and thus prevent or delay motherhood.
In addition to adequate sexual education, fair and reasonable abortion laws are needed to empower women and strengthen the conversation surrounding reproductive health. Every year in the United States, 6.4 million women become pregnant, an estimated half of which are unintended; one-quarter of U.S. women will undergo an abortion by age 30, and one-third by age 45 (Todd Peters 129). Abortions are among the most commonly performed medical procedures in the country, yet they are often swept under the rug and viewed as social taboos. Furthermore, it is crucial for women to speak up for reproductive choice, even when their politicians continually undermine this right. Women have been historically excluded from the policy-making process; they did not win the right to vote until 1920, and even today, they are largely underrepresented in politics: in 2014, women held only 24% of seats in state legislatures, 16% in Congress, and 12% of governorships (Todd Peters 129). In order to effect meaningful change, we must continue to fight for equal representation for women and insist on fair and reasonable abortion laws. The social and political landscape surrounding abortion is constantly evolving, and it is essential that our abortion laws reflect the progress that is being made. Whole Woman’s Health v. Hellerstedt is just one piece of this intricate puzzle; the rest will be determined by the individuals who drive the reproductive rights movement forward for generations to come.
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