The Dangers of the Anti-Abortion Epidemic in the US
When The President of the United States Donald Trump himself stated that “There has to be some form of punishment” for pregnant women who terminate their pregnancies it was clear where the legislative agenda was heading. With the confirmation of Justice Kavanaugh, who is a known pro-life anti-abortionist the picture gained further clarity. And it almost became a dog whistle for all the anti-abortion activists and legislators in the country. This ugly controversy which shouldn’t really be a controversy at all has returned, creating shockwaves not just for women, but for medical personnel as well. This piece examines the history, current situation and implications of the anti-abortion laws flooding the United States.
Blast from the Past: Where it all Began
Let’s start at the very beginning of this burning issue – Roe v. Wade. What did this landmark internationally acclaimed decision really say? The case began when a Texas Statute prohibiting abortion except where necessary to save the mother’s life, was challenged by the then plaintiff Norma McCorvey (‘Jane Roe’ in court documents for her privacy at the time). When the Supreme Court of the US finally decided that the Texas law fell foul of the Constitution, the right to privacy as enshrined under the 14th Amendment to the US Constitution.
The Court recognised the privacy interest of a woman in abortions because what was in question was whether a woman had decisional autonomy. A question that has physical consequences and is a issue of body integrity. However, the right of abortion was by no means absolute, because since this was an issue of a fundamental right, the Court stated that State action relating to abortions would have to pass the Strict Scrutiny Test. This test is the highest standard of review which courts in the US use to assess Constitutionality of any Governmental Discretion.
The Court viewed the three trimesters of pregnancy as a guide stating that in the first trimester the termination was solely at the discretion of the woman. And that after the first trimester the States could “regulate procedure” but not outlaw abortions. However, after the third trimester the States could regulate or even outlaw abortions in the interest of the foetus’ life except when necessary to protect the health and life of the mother.
A Tightrope on women’s sentiments
The United States Supreme Court clearly walked a tightrope between the life of the unborn child, religious sentiments, and the constitutional rights of the mother and of the child. It created a framework within which States could operate lawfully. This judgment changed the course of women’s history!
Back to Reality circa. 2019: The States
This controversy has reared its ugly head once again. When over the past few months several states have passed or are considering passing what is known as “heartbeat laws” which allow abortions to be banned as soon as the fetal heartbeat is detected. The detection of a fetal heartbeat can be as early as 6 weeks. Which is long before most women realise they are pregnant.
In this year alone, five states – Alabama, Georgia, Kentucky, Ohio and Mississippi – in the US have passed strict anti-abortion laws that redefine the parameters of a woman’s access to abortions. An additional eleven states – Florida, Illinois, Louisiana, Maryland, Minnesota, New York, South Carolina, Tennessee, Texas and West Virginia – are proposing bills to ban abortion once a fetal heartbeat has been detected.
Utah and Arkansas have laws that prohibit abortion after 18 weeks. Missouri has its “pro-life omnibus” law which bans abortions based on race, sex and Down syndrome diagnosis. This law, which was passed in May 2019, has declared Missouri to be a “sanctuary of life”, having tax credits for donations to pregnancy centres run by abortion opponents and requirements that when a minor seeks an abortion consent will be required from both parents and not one, as is the current norm. Missouri’s law prohibits abortions after 8 weeks, allowing abortion when the mother’s life is at risk but not allowing abortions from pregnancies caused by rape or incest.
Alabama is by far the most restrictive law, because it does not have any exceptions (e.g. rape/incest) whatsoever and goes so far as to set criminal penalties for the doctors who perform abortions. Finally, the Alabama law allows for abortion only when the mother’s life is in danger. This bill was passed on May 15, 2019 and will come into force in November 2019.
Georgia’s law is also one of deep concern because it will led to penalties for women who seek abortions or miscarry even. It will go into effect on Jan 1, 2020. The legislature in Texas is discussing using the death penalty for people who get abortions.
It is heartening to note is that the laws in Alabama and Ohio have been challenged in Court. And that the Kentucky law and the Mississippi Law have been struck down by a federal judge recently. The American Union for Civil Liberties and Planned Parenthood have challenged the constitutionality of the law on May 24, 2019. Arguing that the ban is contradictory to the position of law set out in Roe v. Wade, which established the right to an abortion.
Laws in India are much more progressive.
Draconian Anti-Abortion Laws as a tool to get the US Supreme Court’s attention?
It is interesting to note that many of the people involved in drafting these anti-abortion bills have said that their main goal is to get the Supreme Court to revisit Roe v. Wade and overturn it. In Alabama for example, the Governor, Kaye Ivey backed this explicitly. She said: “Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe that it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.”
Similarly the chief architect of the Alabama Law, Eric Johnston, the President of the Alabama Pro-life Coalition saw the signs were in his favour with the confirmation of Justice Brett M. Kavanaugh. Stating that “All the stars were lining up. I thought, This may be the best time to do it.”. Mr. Johnston’s language suggestions for the then Bill, were central to the final law.
Can’t “control” the women? Go after the doctors.
One of the issues that needs to be highlighted and considered as one of the focuses of the right to abortion is that of medical safety. In the past the mere criminalisation of abortion did not result in zero abortions. What it did result in, prior to Roe v. Wade was hospitals having wards filled with patients having sepsis due to self-administered abortions. For e.g. Cook County Hospital in Chicago had 5000 patients that died annually in their abortion ward due to excessive bleeding, and infections.
The idea of legalising abortion in certain cases and upto a certain point in the pregnancy was not merely to walk that tightrope between women’s rights/safety and pro-life religious sentiments. But it is to ensure that when abortions were opted for, they were done safely in clean and hygienic environments by professionals who could do it without harming the mother or resulting in her death. Doctors and basic medical science therefore become central to the conversation on abortion .
What happens in 6 weeks?
Take for example laws that are banning abortions as soon as heartbeats are detected (typically at 6-weeks). Ultrasounds usually show “electric activity” during the embryo’s heart formation at about 6 weeks. OBGYNs who are members of the American College of Obstetricians and Gynecologists like Jen Villavicencio have said that this electric activity is not the same as a heartbeat that pumps blood, but that “heartbeat” is the terminology that most patients are familiar with. She went on to state in an interview that this heartbeat detection is an inaccurate description. Adding further that “I think that when you are legislating biology in this way, you need to be really, really precise.”
The laws that have come out in the past have tried to make it difficult for hospitals, doctors and clinics to provide abortions and abortion-related information. For example, in the case of Whole Woman’s Health v. Hellerstedt (2019) the Supreme Court invoked an earlier decision (Planned Parenthood Southeastern Pennsylvania v. Casey – 1992) to strike down two provisions of the Abortion Law in Texas which had requirements of abortion clinics needing to meet the standards of an Ambulatory Surgical Centre to be a valid abortion clinic and the provision that abortion doctors need to have admitting privileges at a nearby hospital.
It almost seems as if the law-makers have decided that if we cannot control women, we will make it difficult for them to get the medical advice and care that they really need, by targeting places that should be open and free for such services.
Want an example?
The best example of this notion currently is the infamous Alabama law, which puts an all out ban of doctors from performing abortions during any stage of pregnancy. The law makes conducting an abortion punishable by up to 99 years in prison. Similarly the law in Missouri penalises doctors who perform abortion after 8 weeks of the pregnancy, with 5-15 years in prison.
What these legislators do not realise is that these laws have larger implications on people’s medical choices themselves. What happens then to living wills or Do-Not-Resuscitate? What happens to choosing against going for treatment? Those are “life” issues as well in the literal sense – where a person is has the right to choose how they die, when they die and whether or not they should be kept alive. The signal these Anti-Abortion Laws are sending to the medical fraternity is that as time goes by more and more of their work will be regulated.
#MyBodyMyRights: Not if you are a woman
We cannot have a discussion on anti-abortion laws in isolation. The cumulative effect of making abortions illegal, penalising doctors/mothers for conducting abortions, regulating sex-education in schools, regulating access to contraceptive options, inadequate maternal leave and support and not having a legal system that supports women’s right to make choices is society telling women (not just men) that their lives need to be under strict scrutiny and that they require permission for their very existence.
Take for example the ban in Missouri which doesn’t allow Down syndrome related abortions. If every State were to outlaw abortion in cases of genetic or rare diseases, the implications for the woman (and the family) would be huge. The cost of diagnosis, treatment in the form of drugs and other therapies and rehabilitation are enormous for people living with genetic conditions. If you take the war on Medicaid and other State-Sponsored health insurance programmes to reduce their coverage and cut them entirely in some cases into consideration these costs reach unbearable levels.
As of 2017, the percentage of single mothers in the US is 83% (https://singlemotherguide.com/single-mother-statistics/). Imagine single mothers on single income affording the costs associated with the treatment and care of rare diseases, whether it is gene therapies, drugs, or procedures like transplants. As the NORD website reports it “In 2017, the median price of the top 10 rare disease therapies used by the greatest number of patients was less than $10,000 per year.” Given the large percentage of single mothers, anti-abortion laws will disproportionately affect women more than men in the care and raising of a child with a rare disease.
Women cannot live in this oppressive state. Right to make decisions on their biology is key to the freedom of women – because women know how their bodies work best. If there is a right to privacy, what good is that privacy when a woman doesn’t have the autonomy to exercise her rights free of interference and regulation from outside parties? Taking away their discretion or regulating even to the point of ad absurdum will result in total gender inequality.
About the Author: Shambhavi Ravishankar
She is a human rights lawyer and an ardent lover of writing and reading, who believes in the pen being mightier than the sword!
The Medical Termination of Pregnancy (Amendment) Bill, 2020
The new Medical Termination of Pregnancy bill 202 was passed in the Lok Sabha in March 2020 and Rajya Sabha in March 2021.
Highlights of the bill:
- Currently, abortion requires the opinion of one doctor if it is done within 12 weeks of conception and two doctors if it is done between 12 and 20 weeks. The Bill allows abortion to be done on the advice of one doctor up to 20 weeks, and two doctors in the case of certain categories of women between 20 and 24 weeks.
- The Bill sets up state level Medical Boards to decide if a pregnancy may be terminated after 24 weeks in cases of substantial foetal abnormalities. All state and union territory governments will constitute a Medical Board. The Board will decide if a pregnancy may be terminated after 24 weeks due to substantial foetal abnormalities. Each Board will have a gynaecologist, paediatrician, radiologist/sonologist, and other members notified by the state government.
- The Act specifies the grounds for terminating a pregnancy and specifies the time limit for terminating a pregnancy.
- Under the Act a pregnancy may be terminated up to 20 weeks by a married woman in the case of failure of contraceptive method or device. The Bill allows unmarried women to also terminate a pregnancy for this reason.
- A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorised by law. Violation is punishable with imprisonment up to a year, a fine, or both.