During the debates over the recent Supreme Court nominees, both opponents and supporters of reproductive freedom directed their concern toward a single issue: Was the nominee likely to uphold or strike down Roe v. Wade?
This is a short-sighted view on both sides. While it’s true that without Roe most abortions would become illegal in most states, the opponents of choice have chosen an alternate— and so far moderately successful—path to raising barriers to abortion rights: chipping away at Roe.
The case that is currently occupying the high court is a perfect example. In Ayotte v. Planned Parenthood of Northern New England, the court is being asked to uphold a New Hampshire law mandating that doctors notify parents of teens having an abortion. Contrary to U.S. Supreme Court precedent, the law contains no exception in cases where the pregnancy threatens the minors’ health. Lower courts struck down the law because of this omission.
In this case, Kelly A. Ayotte, the New Hampshire attorney general, and the Bush administration are arguing to limit current legal standards that allow courts to block the enforcement of potentially dangerous and unconstitutional abortion laws before they go into effect.
Even with Roe, the state legislatures, the courts, and the Supreme Court itself, have displayed a proclivity for upholding laws raising insurmountable barriers to pregnancy termination—barriers that particularly erode access to safe, legal abortion for the poor, the young, and those living in rural areas.
This approach leaves the right to legal, but inaccessible abortion. And if something is legal but inaccessible, its legality becomes irrelevant.
For the first three years after Roe was decided in 1973, the Supreme Court held firm against state challenges. But then the tide began to turn. The first line of action was to follow the money. In Maher v. Rose, the Supreme Court upheld Connecticut’s limitation of state Medicaid funding for “elective” abortions. In Poelker v. Doe, it upheld a Missouri law allowing publicly financed hospitals to refuse to do “elective” abortions. And in 1980, it upheld a federal ban on the use of Medicaid funds for abortions except those necessary to save a woman’s life. These erosions, of course, fall hardest on the poor.
Young people became the next target. In Belolotti v. Baird (1979), the high court struck down a Massachusetts law requiring, among other limitations, the need for minors to obtain parental consent. Shortly after, the Supreme Court for the first time upheld a law requiring parental notification. Now thirty-five states have passed legislation mandating some kind of parental notification, but at the least they include exceptions when the minor’s health is threatened.
By 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the court not only upheld a Pennsylvania law conditioning a minor’s abortion on the consent of a parent, guardian or judicial waiver, but also instituted a twenty-four hour waiting period, state-authored materials on fetal development to be offered to women seeking abortions, and the provision of annual statistical reporting on abortions to the state, including the names of referring physicians.
All these barriers are meant to be nothing more than untenable burdens that prevent women from getting an abortion, especially in rural areas where women have to travel miles to an abortion provider.
So it is short-sighted to think that whether Roe is “wrongly decided” or “settled” is the issue, or that a nominee’s stand on Roe is all that pro-choice supporters need to consider. The Supreme Court already has proved it should be the battleground of last resort. Those who want to keep abortion safe and available must open a second front to organize nationally in order to fight locally, state by state, against legislators passing laws leaving abortion legal while making it more and more inaccessible.
By Reina Schiffrin and Joann D. Smith
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