How are state legislatures responding to abortion and satellite issues?

In p. 80↵recent years many state legislatures have defined abortion and efforts to limit the procedure as their number one social issue. In fact, the state legislature, rather than Congress or the courts, has become the chief venue for pro-life activism and action in the United States. Hundreds of abortion-limitation bills have been introduced in legislatures around the country, and a number have become law. Legislation has focused on eliminating all state funding for abortions or clinics that provide abortion counseling and services; limiting abortion coverage by private insurers; enforcing special qualifications for performing abortions and onerous and irrelevant requirements regarding sites where the procedure may be performed. Many state legislatures have created more expansive rules governing the right to refuse to perform and participate in abortions. New laws mandate special pre-abortion counseling, including counseling by nonmedical personnel, ultrasound imaging, waiting periods, and parental involvement in the case of minors seeking abortion. Other laws forbid ­telemedicine p. 81↵abortions, which allow a physician from a “remote” location to guide a women through a nonsurgical and medical (taking an oral prescription drug) abortion.¹

What is pre-abortion counseling?

This term refers to a state requirement that clinic staff, including medical staff, provide an abortion-seeking woman with literature or other materials that state legislators have decided she must have. Generally, state-mandated “pre-abortion counseling” does not meet traditional definitions of counseling in which a credentialed counselor takes part in a therapeutic give-and-take with a person seeking assistance. Under this law, the woman must receive such counseling whether she wants exposure to this material or not, in order to decide whether to go forward with the procedure.

As I pointed out earlier, more than thirty states require that women receive counseling before undergoing an abortion procedure, and more than twenty prescribe the kind of information that the client must receive, including material about fetal development, adoption alternatives, and state laws that require fathers to contribute to child support. Some states allow the curriculum to include a presentation about the possible relationship between abortion and breast cancer, for which scientific proof does not exist. Some states use the pre-abortion counseling experience as an opportunity to dissuade women from going ahead with the abortion, focusing only on negative psychological outcomes.

Critics of pre-abortion counseling curricula raise questions about whether states have the right to interrupt the privileged relationship between the patient and the doctor. Critics are concerned about the ways that the curricula compromise a woman’s right to make a decision on her own; about how the curricula interfere with the doctor’s right to manage his medical practice; and about how the curricula distort the “informed consent” process.

Abortion-rights p. 82↵advocates have argued in court that most pre-abortion counseling curricula constitute an “undue ­burden” on a woman seeking an abortion, but courts have not agreed, ruling against constitutional challenges and allowing the counseling to continue. By 2006, anti-abortion counseling centers had more than $60 million in federal funds, and twenty states had designated funding for such centers, a dozen states raising funds with “Choose Life” license plates.

What are “waiting periods”?

Mandatory delay laws or “waiting periods” require women to wait for a prescribed period of time (usually twenty-four hours, but at least one state, Utah, has passed a law requiring a seventy-two-hour period) between receiving state-mandated information about the procedure at an abortion clinic and having the abortion. State legislation mandates these waiting periods under the theory that a woman who spends the interval thinking about what she has learned during pre-abortion counseling sessions will be less likely to go ahead with the procedure. Critics of waiting periods note that such delays often mean that women must make two trips from home to the clinic. The extra trip, particularly in parts of the country where women may have to travel significant distances from home to clinic, can require women to lose work time twice and to incur twice the travel and child-care expenses, or require funds to stay at a hotel near the clinic. Policies that require two trips thus significantly raise the cost of obtaining an abortion and may cause some women to delay the procedure and encounter the elevated risks that accompany later abortion.

What are TRAP laws?

Some states have passed laws mandating that medical practices of physicians who perform abortions must meet standards that are much stricter than those applied to other p. 83↵medical practices. These laws are called Targeted Regulation of Abortion Providers, or TRAP laws; this term is typically used within the reproductive rights movement. The laws often require that facilities undergo expensive renovations or incorporate architectural changes that are impossible or unnecessary. They may also include standards for staffing and procedures that are not applied to any other kind of practice. An abortion provider may be required to become licensed as an “ambulatory surgical center (ASC),” that is, a facility that provides many kinds of out-patient surgeries, even though only first-trimester abortions are performed in the setting. This is, again, an expensive proposition and one not recommended by standard-setting national health organizations.

These and other state mandates included in TRAP laws can make performing abortions too expensive and burdensome for physicians, causing some to close their practices. The Center for Reproductive Rights has found TRAP laws very difficult to oppose in court, although recently attorneys associated with the Center reached an agreement with the state of Missouri exempting a physician who had been providing abortions for thirty years from meeting new ASC regulations.

What is the Freedom of Access to Clinic Entrances (FACE) Act?

In the sixteen years between 1977 and 1993, anti-abortion protesters conducted 609 blockades around the country, preventing women from gaining access to abortion clinics. At the end of this period, Dr. David Gunn of Florida became the first provider to be shot and killed; a number of arson attacks were also carried out against clinics that year. In response, with solid bi-partisan support, Congress passed the FACE Act which was signed into law by President Clinton in 1994.

The act forbids assaults on an abortion-providing facility, its clients, or personnel, including by the use of “force, threat of force or physical obstruction to intentionally injure, intimidate, interfere with” anyone who is performing or p. 84↵obtaining reproductive health services. Anyone who violates the Freedom of Access to Clinic Entrances Act faces both civil and criminal penalties. For the sixteen years following enactment of the federal FACE Act, the total number of blockades fell by about 75 percent, compared to the earlier period.

What is a Crisis Pregnancy Center?

Approximately 4,000 sites in the United States, known as ­crisis pregnancy centers (CPCs), reach out to women who are accidentally pregnant, pregnant without resources, or fear that they are pregnant. Center staff generally offer counseling about the importance of keeping the pregnancy and talk to clients about alternatives to both abortion and motherhood and related subjects. Generally, crisis pregnancy centers have a religiously imbued, anti-abortion mission. Some centers employ part-time medical staff and offer ultrasound imaging.

Critics charge that CPCs—many of which receive state and federal support—advertise their services, locate and outfit their offices, and target unsuspecting clients in ways that suggest the facilities offer comprehensive services of all kinds, including contraceptive services and abortion, while obfuscating or misrepresenting their core purpose: to discourage abortion. Austin, Texas; Baltimore, Maryland; and New York City have each enacted legislation that requires crisis pregnancy centers to post notices informing prospective clients whether they have medical personnel on staff and that the center does not provide abortion services or referrals to clinics that provide these services.

Can women use health insurance plans to cover abortion?

Although complete information is difficult to obtain, the best information available—from Guttmacher Institute and Kaiser Family Foundations studies—suggests that most Americans p. 85↵who have employer-based health insurance have coverage of abortion.

A recent Guttmacher Institute study found that only about 30 percent of abortion patients had private insurance, one of a number of indications that a disproportionately high percentage of women seeking abortion today are low income. About one-third of the women who had private coverage used their insurance to pay for the abortion and just under two-thirds paid out of pocket. Private insurance paid for only about 12 percent of abortions, perhaps because many women did not know that their insurance plans covered abortion, or because a number of the women were covered by plans that excluded abortion. Possibly a number of the women in the study paid directly for the abortion because they had not yet met their plans’ annual deductible amount. Some women, feeling stigmatized by their decision, may have paid out of pocket to avoid reporting their abortion to anyone, including the insurance company.

The future of insurance coverage for abortion is unclear due to the determination of anti-abortion activists to achieve Henry Hyde’s goal of excluding coverage for women of all income levels. Congress and state legislatures have focused on creating restrictions that would affect millions of women who purchase insurance on state insurance exchanges, thereby making access to both private and public abortion insurance difficult or impossible to obtain.

What is the future of legal abortion?

With Roe v. Wade, state anti-abortion statutes were nullified and abortion became legal nationally. For abortion to be recriminalized in the twenty-first century, the United States Supreme Court would have to overturn Roe v. Wade. Under the legal principle stare decisis (a Latin term meaning, “to stand by that which is decided”), the legal status of abortion has been settled by Roe v. Wade, establishing a precedent that has force p. 86↵and duration—of forty years. Yet precedent does not always prevail. Courts may overturn long-standing laws, as social, political, cultural, and legal attitudes change over time.

For many years, the Supreme Court justices’ attitudes toward abortion have been watched closely. It would take five justices to overturn Roe v. Wade. If this were to happen, the legal status of abortion would be defined by each of the fifty state legislatures, many of which have long been involved in crafting legislation to restrict abortion access. Also, some states, such as Rhode Island and Alabama, have never expunged from their books nineteenth-century laws criminalizing abortion. In states where courts have enjoined these laws, government lawyers could simply move to lift the bans on them, and the old laws would go back into effect. Experts have predicted that if Roe v. Wade is overturned, approximately thirty states, where about 50 percent of women in America live, would recriminalize abortion within a year. In the meantime, state legislatures are enacting a variety of laws that aim to sharply curtail access to abortion and constrain the ability of doctors to perform the procedure.

What does the abortion rights movement look like today?

As mentioned, recent polls show that more Americans believe that abortion should be legal in most or all cases than those who believe that abortion should be illegal in most or all cases. Nevertheless, after the 2010 elections, when Republicans took or maintained control of twenty-six state legislatures, states focused unprecedented attention on passing legislation concerning reproductive issues. The majority of these laws aim to restrict women’s access to abortion, requiring extensive pre-abortion waiting periods, education, and imaging; regulating clinics as if they were hospitals; and forbidding ­private health insurance companies from covering abortion in almost all cases. Other laws deal with infant abandonment, stillbirth certificates, sex education, and other issues; few have p. 87↵dealt with expanding women’s access to reproductive health services.

The legal arm of the reproductive rights movement has focused on bringing suits challenging many of these laws. In particular, they have fought against laws that reduce women’s overall access to reproductive health care; laws requiring women to receive pre-abortion counseling that may promote unsubstantiated connections between abortion and various subsequent diseases; and laws that make the most common type of abortion—first trimester procedures—harder to obtain because of very long waiting periods and insurance restrictions, among other new obstacles.

In addition to opposing anti-abortion legislation, mainstream reproductive rights organizations have focused in recent years on developing robust campus-based activist groups. Women-of-color organizations are leading educational efforts to expand the reproductive rights agenda beyond the abortion issue and to define reproductive rights as a human right, encompassing both the right of all women to be mothers if they so choose, and the right of women to manage their fertility. These groups, calling for “reproductive justice,” focus on issues of reproductive health; comprehensive sex education; access to living wage jobs, decent housing, and affordable, high-quality day care; and other resources necessary for safe and dignified childbearing. Some groups in the contemporary reproductive health, rights, and justice movements are focusing on building coalitions with other rights-and-justice oriented organizations, such as civil, environmental, health care, and disability rights groups.