UNDER THE COVER: On restricting abortion away and completing the Roe v. Wade trilogy


To understand how the pro-life movement got its groove back, we need to revisit a more poofy-haired time.

The year was 1992. Los Angeles was fragmented by race riots. Bill Clinton was about to become president. And Tim Burton’s Batman Returns scared the bejesus out of little kids with its depiction of a sewer-dwelling, baby-stealing Penguin.

But it was another sequel that proved more significant to the future, a.k.a. the here and now.

Twenty-three years ago, the U.S. Supreme Court revisited its historic 1973 ruling on Roe v. Wade, which essentially legalized abortion.

The new case was Planned Parenthood v. Casey, which had its genesis a decade earlier in Pennsylvania.

In 1982, the state passed the Abortion Control Act, which imposed a parental notification policy for minors and a 24-hour waiting period for all women seeking abortions, among other restrictions.

The law was conceived as a direct challenge to Roe v. Wade, says Leslie Gielow Jacobs, a constitutional law professor at the University of Pacific’s McGeorge School of Law and an expert on the topic. Jacobs says a number of conservative states were itching to re-litigate a woman’s right to choose ever since the Supreme Court made it sacrosanct with its 7-1 ruling in ‘73.

Following a decade of lower court maneuvering, the Supreme Court granted that wish by taking up the Pennsylvania case.

Planned Parenthood v. Casey set up a hotly anticipated rematch between the sides of choice and life. “The drums were beating,” Jacobs explains.

This time around, there was a more conservative court in place. As a result, the expectation, Jacobs says, was that the justices would narrowly overturn Roe v. Wade.

What happened instead was more nuanced, but just as far-reaching.

While the court left most of Roe v. Wade intact, it did grant states broad authority to restrict women’s access to abortion, as long as such restrictions didn’t create an “undue burden,” a term the court has never really defined. The Pennsylvania law hadn’t created such a burden, a majority of the court ruled. But beyond that, states were mostly free to interpret the term as they saw fit.

What the high court’s decision did, in effect, was switch the burden of proof from states that want to restrict abortion to the individuals who want to access and provide it. Then it fell silent.

“Since the 1992 decision, the court has said almost nothing about what an undue [burden] is,” says Jacobs, director of the Capital Center for Public Law & Policy and a former law clerk to Supreme Court Justice Lewis F. Powell Jr. “That’s in the eye of the beholder.”

In the 23 years since that ruling, a number of states have applied a broad reading.

Parental involvement requirements in 38 states. Mandated waiting periods in 28. Forced counseling in 17, including a dozen states where counselors make untrue claims about the link between abortion and breast cancer of mental health problems. Twenty-week gestational limits in 12.

The adoption of these policies has only accelerated, with states enacting 287 new restrictions between January 2011 and August of this year, a policy review by the Guttmacher Institute found.

“I think we’ve seen a real uptick in attacks on reproductive health care over the past few years,” observed Phyllida Burlingame, the reproductive justice policy director at the American Civil Liberties Union of Northern California.

The sum total is that, nearly a quarter-century after Planned Parenthood v. Casey, the right to choose has been successfully diluted, particularly in the South and Midwest.

Pro-life interests have accomplished this through a guerilla-style legislative campaign, crafting indirect challenges state-by-state. Jacobs says this small-ball strategy has largely replaced attempts for a home run legal ruling. The right to life movement, she says, “is going for restricting [abortion] away.”

And it’s working, say experts in the field, especially for certain demographics.

“For women who are poor and younger, access is becoming harder,” says Rana E. Barar, project director of the Advancing New Standards in Reproductive Health program at UC San Francisco’s Bixby Center for Reproductive Health.

Her team recently completed a seven-year survey of abortion-seekers. Among other things, the survey found that 80 percent of women who obtain first-term abortions faced delays. That figure shoots to 94 percent of women who obtain later-term abortions.

The best example of this post-'92 strategy are called TRAP laws. An on-the-nose acronym for “targeted regulation of abortion providers,” these laws slap onerous restrictions on clinics and the physicians working inside them, demanding, respectively, that they meet the same requirements as surgical centers and secure admitting privileges at local hospitals. They’ve effectively starved out all but a few providers in the state of Texas, even as some of the policies are being challenged in court.

“When the Texas clinic shutdown law went into effect, more than half the abortion clinics in the state were shut down overnight. Another 10 would have closed their doors in June had the Supreme Court not stepped in,” NARAL Pro-Choice America President Ilyse G. Hogue wrote in an email message to the organization’s supporters.

The consequences of the 2013 law are no longer just hypotehtical. As Mother Jones reported today:

At least 100,000 Texas women—and as many as 240,000—between the ages of 18 and 49 have attempted to self-induce abortions, according to a report released today by the Texas Policy Evaluation Project (TxPEP). The study also found that it is possible that the rate of women attempting to self-induce abortions is rising in Texas as a result of the state’s additional restrictions on abortion care.

All this is finally coming to a head.

On November 13, the Supreme Court announced it would hear arguments on the stayed Texas law that wants to force abortion providers to secure admitting privileges at proximal hospitals. The law, which also banned abortions after 20 weeks, would shutter all but a handful of clinics across the vast state.

The law’s stated intent is to ensure that abortions—which have a 0.5-percent complication rate, lower than giving birth—are done safely. Critics argue the real intent is to make sure abortions aren’t performed at all.

“If we lose, the state of Texas could be left with just 10 clinics in a state of almost 27 million people,” Hogue wrote.

With this case, Jacobs says the Supreme Court could finally define what it meant by “undue burden” nearly a quarter-century prior. The answer to that question has enormous implications.

“If they say what Texas has done is not an ‘undue burden,’ that would open things even more up,” she says. “It would either draw a line in the sand, saying, No, this is too much, or open up even further restrictions [by the states].”

Or, as Hogue put it in her message: “If we lose, abortion could effectively be outlawed simply by states shutting down all the abortion clinics.”

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