Reproductive Rights – 40 Years after Roe

January 24, 2013

by E. Sebastian Arduengo

Forty years after the U.S. Supreme Court invalidated on constitutional grounds a state law banning abortion, large swaths of the public may be more supportive of a woman’s right to make decisions regarding health, but state and federal lawmakers remain obsessed with limiting reproductive rights. The ongoing challenges to protect liberty of women were the focus of a recent ACS panel discussion at Georgetown University Law Center.

The Jan. 23 panel discussion kicked off with opening remarks by ACS President Caroline Fredrickson, who talked about how Roe v. Wade sadly marked the high-water point of reproductive rights, because ever since then federal and state lawmakers have been chipping away at it. One of the first efforts to erode liberty started with passage of the 1976 Hyde Amendment, which prevents the federal government from funding abortions through Medicaid – the primary source of health insurance for millions of low income women, and continue to fall with the myriad restrictions on abortion that serve no purpose but to harass women. (See video of panel discussion here.)

Former Acting U.S. Solicitor General Walter Dellinger followed Fredrickson, and maintained that Roe was not about choice -- it was about the right to an abortion. He also criticized the Supreme Court’s decision in Gonzales v. Carhart, noting that if the government really wanted to curb late-term abortions, it should stop obstructing abortion early in pregnancy. Dellinger was followed by Marcia Greenberger, co-president of the National Women’s Law Center, who discussed the mounting legislative attacks on abortion. In the last two years, she said, there have been 162 new abortion restrictions passed by the states. Things have gotten so onerous that in some states, like Mississippi, there’s only a single abortion provider left in the entire state. That clinic is under continuing threat, as the state is requiring doctors at the clinic to have admitting privileges at local hospitals – a burden that makes running a clinic financially impossible.

It wasn’t all bad news though. Greenberger noted the National Women’s Law Center’s “This is Personal” campaign, to inform the public about why reproductive health decisions are personal medical decisions. She also pointed out a small victory for reproductive rights – the Shaheen Amendment, which allows members of the military who are victims of rape or incest to have abortion services covered by their government-provided health insurance.

Helene Krasnoff, assistant director of Planned Parenthood’s Public Policy Litigation & Law, followed up on Walter’s comments, and discussed how the undue burden standard affected women, because though it sounds like a form of heightened scrutiny in practice it has been effectively a lesser standard than rational basis review. For example, if a state banned medicated abortions that didn’t require surgery, but left open the option to receive a surgical abortion – that would not amount to a constitutional violation because the regulation doesn’t need to bear any rational relationship to medical science. The only thing that matters under Casey is if a regulation presents an undue burden to reproductive health.

Krasnoff also touched upon the role of the courts, an issue that’s been repeatedly trumpeted on the blog. Reproductive rights are just one example of why getting fair-minded progressive judges onto the federal bench is so important. Case in point, in South Dakota, Planned Parenthood challenged the state’s “informed consent” law that required a doctor to tell a woman who is seeking an abortion that she faces an “increased risk of suicide ideation and suicide.” Planned Parenthood won the case, and also won an appeal before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit that included two Republican appointees. But, on two separate occasions the Eighth Circuit agreed to hear the case en banc and reversed the panel decision. To get an idea of how extraordinary this is – of the 20,000 cases on the Eighth Circuit’s docket, less than one-tenth of one percent are heard en banc; Planned Parenthood’s case was heard en banc twice, and reversed twice. Of the 11 judges that are on the Eighth Circuit, nine were appointed by Republican Presidents, and six were appointed by President George W. Bush.

Finally, Jessica Gonzales Rojas, from the National Latina Institute for Reproductive Health, spoke to the fact that within the Latino community, support for reproductive rights is growing. Now, more than 70 percent of the community supports reproductive rights, and the National Latina institute is launching a new campaign called “Yo Te Apoyo” or “I support you,” highlighting support for women who choose to get abortions. Unfortunately, that support came too late for Rosie Jiminez, who, in 1976 was the first victim of the Hyde amendment when she died of septic shock after seeking an illegal underground abortion because she could not afford to go to a clinic.

As Greenberger said, it’s now up to our generation to take the lead in making sure that the vision of Roe is realized. While courts have been fairly hostile to reproductive rights, they are not totally immune from public opinion, especially in states where the state judiciary is elected. And, as a NBC poll from Tuesday made clear, public support is moving in the direction of reproductive rights.