By Chenchen Zhang
Forty-five years after the landmark decision in Roe v. Wade, women are still fighting for the full realization of the right at the heart of that case.
By a 7-2 vote, the Supreme Court established in Roe v. Wade that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s decision to terminate her pregnancy. As part of its holding, the court acknowledged that the individual’s right must be balanced against the state’s interests in regulating abortions: protecting women’s health and protecting the potentiality of human life. Since then, many pieces of legislation have been enacted at the state level to regulate abortion. Granted, quite a few of them impose reasonable and necessary requirements, such as those that require abortion be performed by a licensed physician. Some other laws, however — including those that demand a compulsory waiting period — effectively restrict women’s access to abortion.
Texas exemplifies a case in which lawmakers have used legislation to impose medically unnecessary burdens to prevent women from getting abortions. In 2013, the Texas legislature passed House Bill 2 (HB 2), which included two provisions pertaining to abortion that were ultimately struck down by the Supreme Court as unconstitutional in a 2016 case Whole Woman’s Health v. Hellerstedt. One of those contested provisions required the physician performing the abortion to have active admitting privileges at a hospital located not further than 30 miles from the abortion facility. The other required every abortion facility to meet the minimum standards for ambulatory surgical centers under Texas law. After the law went into effect, 22 out of 40 abortion clinics in Texas had to shut down. From local news reports, by 2016 June, there were 100 Texas counties that didn’t have an abortion facility within 100 miles. For one county in Southwest Texas, in which 44% of women were living below poverty line, the nearest abortion facility would be 350 miles away if the centers targeted under the law closed. In this circumstance, poor women in rural areas who already struggled to secure funds for the abortion would have to miss more days of work or childcare to travel to an abortion facility, additional expenses they likely could not afford.
After time-consuming litigation, the case ended up at the Supreme Court, which decided that neither provision conferred medical benefits sufficient to justify the burdens they imposed. Proponents of the bill had argued that the requirements’ purpose was to help ensure women had easy access to a hospital should complications arise during an abortion procedure, but there was scant evidence of such complications before HB 2’s passage. As such, there were no significant health-related problems for the new law to cure and the Supreme Court deemed the requirements in the provisions an “undue burden” for women seeking abortion. Some Texas officials have criticized the Supreme Court’s decision in the Hellerstedt case as judicial overreach, which is an eternally convenient critique against judicial review of any legislation.
In the Spring of 2017, the Texas Legislature yet again enacted new limits on abortion , widely regarded as hitting back at the Supreme Court decision. The new limits banned the most common — and oftentimes considered the safest — form of second-trimester abortion procedure, called dilation-and-evacuation (D&E). Under the new legislation, any doctor to perform the outlawed procedure would face criminal charges. This ban would make abortion more burdensome: the only alternative for abortion in the second-trimester is called induction abortion, which based on court testimony, is “extremely expensive, entail[s] more pain, discomfort, and recovery time for the patient than a standard D&E procedure; and are medically contraindicated for some patients.” In addition, doctors testified that this ban would bring about unnecessary health risks for women without any associated benefits. A ban on D&E abortion allows the ideology of the lawmakers to usurp the judgment of medical professionals and the preferences of the patients
In November 2017, only months after it went into effect, the United States District Court for the Western District of Texas deemed the new limits unconstitutional. The court issued a permanent injunction blocking the state from enforcing the dilation-and-evacuation ban. Within one hour of the decision, the Texas attorney general’s office declared its intention to appeal and “go all the way to the Supreme Court if necessary”.
The recent dramatic legal battles in Texas stand in stark contrast to international practices, which serve to introduce a wholly different perspective. In my native country of China, abortion is legal and there are almost no obstacles except in the case of sex-selective abortion (which some women still manage to use illegally as the basis for their termination decisions). In fact, the sweeping one-child policy, which was in place from 1979 to 2015, made abortion one of the most common ways that China maintains its population level.
Roughly speaking, countries in the Global North and central and eastern Asia generally have the most liberal abortion laws, and countries in the Global South generally have restrictive abortion laws, according to the Center for Reproductive Rights. But on a global scale, countries worldwide are liberalizing their abortion laws.
Of course, different countries’ abortion laws have a lot to do with their own legal, political, cultural, and religious landscapes. Regardless, for many people worldwide, abortion is essentially a moral issue that concerns individual perceptions of when a life commences and the extent to which a woman has rights over her own body. As a woman who has witnessed and inevitably experienced systematic coercion and discrimination, I hold the truth to be self-evident that all women should have full control over their own bodies. Part of that control means that a woman has the right to decide what she can and cannot do with her own body, and since the fetus exists inside her body, a pregnant woman has the right to abort the fetus. Granted, another person may believe that the fetus is a life and have a completely different opinion about abortion. But, by deciding for millions of people through law, state legislators are depriving people the liberty of the most personal decision.
The more relevant question is when the Supreme Court already decided on women’s right to abortion, is the state legislators’ override valid just because they do not agree with abortion? While the judicial review that has thus far overturned Texas’ attempted measures is indeed a potent weapon in addressing unreasonable laws, such a process can be time-consuming and costly. A simpler, more responsible process would be, as the the leader of the Texas House Democratic Caucus Christ Turner suggested, to “stop passing unconstitutional laws for a change”.
The now taken-for-granted view that equates Republicans in the US with anti-abortion and Democrats pro-choice is actually mistaken: there once was a time when more Republicans than Democrats supported the decriminalization of abortion. Some Republicans campaigning for Nixon in 1972 decided to take new positions on abortion to “draw Catholics and social conservatives away from the Democratic Party”. Abortion is, in fact, a personal issue that has been used as a political tool by American parties.
Some argue that the current situation, where abortion is at the central stage of political debate, at least partly comes from the specific power structure of the American national institutions, characterized by weak party elites, a strong Supreme Court, and a decentralized political system. In contrast, in other developed nations, especially the UK and Canada where religion also plays a significant role in society, abortion is at the margin of politics. Additionally, sub-national governments have much less power in these nations and their party leaders are able to “maneuver to avoid abortion fights.” Their US counterparts are more susceptible to the pressure from interest groups that fund their campaigns. To make such an important debate more political than it should be seems both counterproductive and a distraction from the real point. But as long as these institutional situations remain the same, the highly political abortion controversies in the United States will very likely continue.
Chenchen Zhang is a Master of Public Policy candidate at the Goldman School of Public Policy. She is interested in technology policy, the intersection of law and public policy, and anti-discrimination.
Editor’s Note: An unclear expression in the previous version of this article may lead to a mistaken belief that sex-selective abortion is permitted in some cases in China, when in fact the practice is forbidden by law but some people still manage to do that.