Biting Off More Than We Could Chew: The Struggle Over Reproductive Rights

This month, the fight to maintain and expand women’s reproductive rights has taken some serious blows. Across the country, several states, including Colorado, North Dakota and Tennessee had so-called personhood and other anti-abortion legislation amendments on their ballots. In Texas, the federal court system is vacillating over the constitutionality of legislation that limits abortion access, at one point making it so that one in six women had to travel 150 miles or more to obtain a legal abortion. While the outcomes of some of these battles still remain to be seen, it is clear that abortion legislation is in flux, and that this ambiguity dates back to the famous Supreme Court case, Roe v. Wade.

In Colorado and North Dakota, personhood amendments found their way onto the ballots of voters again. Amendment 67 in Colorado, the Colorado Definition of Person and Child Initiative, would have included unborn human beings under the definition of “person” and “child” in Colorado’s criminal code. Such a measure would have made any abortion a crime and would have made pregnant women and health care providers criminally and civilly liable for any pregnancy that does not result in a live birth. It also had the potential to outlaw birth control options. Similarly, Measure 1 in North Dakota, the Life Begins at Conception amendment, would have amended the state constitution to provide for the inalienable right to life at every stage of human development. Such an amendment would have provided grounds to include fetal development as a stage of life. In Tennessee, Amendment 1, the Tennessee Legislative Powers Regarding Abortion, would give state lawmakers more power to restrict and regulate abortions in the future. On November 4th, both Colorado and North Dakota voters rejected their respective personhood amendments on their ballot, while Tennessee passed the abortion measure on its ballot by a solid margin of 52 percent, giving the legislature the power to pass restrictions on how and where women will be able to legally obtain an abortion. The outcomes of these ballot issues, if nothing else, are indicative of how divergent national interpretations of a woman’s reproductive rights are.

Even more emblematic of the ambiguity in what our laws prescribe regarding reproductive rights are abortion laws in Texas. Texas has restricted access to abortion more extensively than most other states — it allows women to seek abortions only in the first twenty weeks of their pregnancies. A bill which passed in July of 2013 and took effect recently, House Bill 2, placed heavy regulations on the use of a pill to carry out an abortion, required abortion doctors to obtain admitting privileges at a nearby hospital and mandated that clinics meet the standards of hospital-style surgical centers. In its totality, this bill requires all but eight abortion clinics in the state to close, making it so that one in six women, amounting to 900,000 Texan women, live more than 150 miles from any of the remaining clinics. The bill was unsurprisingly hotly contested from the moment it passed, and opponents to the bill scored an early victory when the district court struck down the law. But this victory proved to be short lived when the state took the case to the 5th Circuit Court of Appeals and a panel voted to allow the law to go into effect.

In mid-October, the Supreme Court intervened and issued an emergency order that drastically reduced the number of abortion clinics that would be required to shut down under this new Texas law.  However, this stay on the decision is not a judgment on the Texas law, but whether the law’s restrictions should be delayed while the legal battle over its constitutionality takes place. The Supreme Court will issue an official ruling on the matter in the future, and that day might come sooner than expected: A federal appeals court scheduled oral arguments for this case to be held in January, indicating that the Supreme Court may make a decision on the matter soon. For now though, 13 of those clinics that would have had to close their doors as a result of House Bill 2 can remain open because of the Supreme Court’s actions.

The constitutional issue at heart of the controversy over Texas House Bill 2 is whether or not the law in question creates an undue burden on women seeking abortions. This question arose in 1992 when the Supreme Court made a landmark decision in Planned Parenthood v. Casey, where the Court ruled that, while a state has the right to regulate abortion, it may not create an undue burden on women seeking abortions. The Court, however, was unclear about exactly what constitutes an undue burden, which has lead to the current back-and-forth over what is permissible.

However, the controversy has deeper roots than just the ambiguous ruling in Casey. This kind of uncertainty stems from the supremely famous Roe v. Wade case, which established a constitutional right to abortion in 1973. At the time of the decision, abortion was only legal in four states. Some constitutional analysts and scholars have argued that the decision in Roe v. Wade did too much, too quickly. Supreme Court Justice Ruth Bader Ginsburg said that, had the court delayed hearing the case while each state dealt with the issue piece by piece, “Things might have turned out differently.” The reasoning is that the decision in Roe v. Wade was so sweeping and even shocking to the general public that it gave abortion opponents a clear and new target to act against. Secondly, the Court’s decision hinged on the right to privacy as opposed to a woman’s rights as an individual. Perhaps this would not have been the case had the Court given time for momentum to build in support of abortion state-by-state.

For some today, the fact that abortion and reproductive rights are up for debate — despite our court system’s set of precedents that seemingly indicate the unconstitutionality of restrictions to those rights — is extremely surprising. But the anti-abortion measures we are see, most recently in Colorado, North Dakota, Tennessee and Texas, take their strengths from the ambiguity and weaknesses of those precedents. Maybe the Supreme Court will find the strength to set a stronger, more unalienable precedent when it is deciding on Texas House Bill 2.