In 1973 the United States Supreme Court found that a woman’s decision to have an abortion is protected under the Constitution. In doing so, it struck down a Texas state law that criminalized abortion in all cases except when such a procedure was necessary to save the life of the mother. Roe v. Wade is unquestionably one of the most well-known cases in the history of American judicial law, and it is taught in schools as a landmark decision pertaining to women’s rights, the right of privacy, and the limits of government intervention in one’s most personal decisions.
Over four decades later, an issue that should be settled – the extent to which government can limit abortion access – remains one of the most salient political issues of our time. Women who fought for their right to choose back in the 60s and 70s are still witnessing conservative politicians and members of the clergy attempting to turn back the clock on women’s access to reproductive care, from abortions to contraception.
Since 1973, states have enacted a confusing patchwork of regulations and restrictions regarding abortion access, usually to prohibit abortions after a certain period at which the fetus becomes viable- a definition the Court admitted could only be determined on a case-by-case basis. Nevertheless, politicians have regularly tried to take that decision out of the hands of patients and doctors by placing a firm time limit on legal abortions.
The restrictions do not end there. According to the Guttmacher Institute, nearly 20% of states limit coverage of abortion under private insurance plans. Over half of states require women to wait a particular period for state-mandated counselling, which sometimes includes unscientific and politically motivated content, and images of the procedure itself.
These and other restrictions make it a challenge, if not nearly impossible, for women in many parts of the US to obtain a medical procedure the Supreme Court confirmed is their right so many years ago. Some states in particular, all with Republican-controlled state legislatures, have attempted to write laws that can only be described as draconian. The Guttmacher’s August 2014 report found that a whopping 23 states have some kind of requirement pertaining to the actual provision of ultrasound services to women seeking an abortion. Of these, three – Louisiana, Texas, and Wisconsin – mandate that an abortion provider perform an ultrasound on women seeking an abortion and describe the image to her. Similar laws in North Carolina and Oklahoma are currently on hold, pending litigation.
Another type of restriction that has seen a recent uptick are TRAP (Targeted Regulation of Abortion Providers) laws. Since 2010, they have experienced a resurgence in popularity, and they have become increasingly arbitrary and politically motivated. Over half of states have laws on the books that specify things such as hallway width and the amount of available surgical equipment, many of which go well beyond what is required to perform a safe abortion. 15 states require providers to jump through unnecessary hoops in order to practice.
In 2012, to name just one of the recent spate of restrictions, Mississippi’s legislature enacted a bill requiring all abortion providers to have hospital-admitting privileges, an rule that was a thinly veiled attempt to close the state’s only remaining abortion clinic. Given that many hospitals are religiously affiliated, the doctors at the clinic in Jackson were unable to obtain the necessary privileges. This law was ruled unconstitutional in July of this year, but Attorney General Jim Hood, a Democrat in a Republican administration, has vowed to pursue an appeal.
As these laws continue to be challenged by pro-choice groups and abortion providers, an interesting question arises: Will abortion make its way to the Supreme Court yet again? The question is more than one of simple procedure. Indeed, it is quite possible that at least one of the cases, whether it is from North Carolina, Mississippi, or another state, will reach the nation’s highest court. Should the Supreme Court decide to take such a case, it will mean that Roe v. Wade was not quite the landmark case the Burger Court meant it to be. Those on both sides of the debate have cause for worry. The Court’s recent record on women’s rights has been nothing short of abysmal, from Ledbetter v. Goodyear Tire to Burwell v. Hobby Lobby. On the other hand, the most recent abortion restrictions have been explicitly partisan and, in many cases, nonsensical. It would not be all that surprising for at least one of the conservative justices to side with the female justices, citing encroachment upon individual rights by medically unnecessary laws.
Only time will tell whether the Supreme Court will wade back into the abortion debate. If it does, the message will be clear: little, if anything, is ever settled in American political and legal discourse. Whatever the outcome, the results will undoubtedly be far-reaching.