How Safe is Choice?

by Christina Moore
November 8, 2010

Across the country, anti-choice laws are being passed by state legislatures that restrict reproductive rights. In the past twelve months, over three hundred seventy bills limiting abortions have been introduced to the state legislatures and twenty four of these bills became laws which significantly limit personal freedoms. These laws and the efforts serve to weaken theRoe v. Wade ruling in which abortions were legalized based on the right to privacy in the fourteenth amendment. Even though this right was established in 1973 and Roe v. Wade continues to be upheld, other Supreme Court cases have allowed abortion to become further regulated, thereby enabling legislators across the nation to introduce anti-choice legislation contesting reproductive freedom.  These laws, such as the mandatory ultrasound laws and the personhood initiative, are often not publicized and use nebulous language to mask restrictive effects and constitutional infringements. As a result, citizens often remain unaware of the legislative consequences of these bills until they become law.

Role of Supreme Court
The constitutional right to an abortion was established by the Supreme Court in Roe v. Wade (1973), but since then this right has gradually become more restricted through numerous court cases (Feldmann 1995). In 1989, Webster v. Reproductive Health Services upheld a statute which prohibited the use of state facilities for abortion, except for the exception of saving the mother’s life. Three years later, Planned Parenthood v. Casey(1992) endorsed the requirement of a waiting period before participating in an abortion procedure. Justice Sandra Day O’Connor loosened the criterion on abortion restrictions by allowing regulations if they do not place an “undue burden” on access to abortion services. Lowering the benchmark for abortion regulations opened the door for legislative branches to further impede on this reproductive right (Feldmann 1995).

State Legislatures
The state legislators play a significant role here, because they possess the authority to strengthen and uphold reproductive rights. Even if Roe v. Wade were to be overturned at the federal level, the states maintain the power to preserve abortion rights. However, history has shown that the majority of state bills focus on limiting rather than preserving the right to abortions. Most significantly, the number and success of these restrictions has been steadily increasing over time (Tumulty, Maag, and Thigpen 2006). In 1995, three hundred four bills were introduced, a third of which protected abortion rights. Bills upholding abortion rights are greatly needed, considering half of the introduced bills attempted to limit access to abortion services (Sollum 1995). In 2005, fifty two new laws restricting abortion were passed in state legislatures; this was double the number from 2004 (Tumulty, Maag, and Thigpen 2006).

Abortion Services Regulations
Abortion policies within the state legislatures do not attempt to ban abortion completely or explicitly control the reason allowing for the procedure. Rather, these laws reduce access to these services (Sollom 1995). Polls show that these regulations are indeed supported by the majority of Americans. The Pew Research Center found that while sixty-five percent of American polled did not support overturning Roe v. Wade, a similar number of Americans did encourage more legal restrictions (Tumulty, Maag, and Thigpen 2006). Pew conducted another poll in October 2005 showing that the majority of Americans only favor legalizing abortion for the conditions of rape, endangerment of health or life, or a serious birth defect (Tumulty, Maag, and Thigpen 2006). Additional restrictions have included required waiting periods before abortion services, notification of parents and spouses, illegalization of late-term abortions, and mandatory ultrasounds. However, questions arise as to whether limiting access works to decrease the number of abortions sought, or merely forces abortions to take place at a later date or through illegalized means.

This large public support for restrictions is surprising, considering their ineffectiveness in actually causing a change in one’s decision to have an abortion. Eighteen states have established mandatory ultrasounds laws, the purpose of which is to persuade women not to have the procedure. The argument reasons that if a woman is forced to view an ultrasound, then she will be less likely to follow through with an abortion. Studies have yet to prove that viewing an ultrasound causes a woman to change her decision about an abortion.

A significant consequence of these restrictions is their disproportionate effects on low income women. The Hyde Amendment, passed by Congress in 1977, limits the use of federal funds for abortions with exceptions for rape, incest, or life endangerment. Thirty-two states adhere to this federal policy by only using Medicaid funding in these situations (Sable and Galambos 2006). The irony of this legislation is that it effectively ended the right of low-income women to obtain abortions. Women whose incomes fell below the federal poverty level were found to be four times as likely to have unintended pregnancies and three times as likely to have an abortion compared to women with incomes at 200% of the poverty level (Sable and Galambos 2006). Without federal funding it is highly unlikely that low income women will be able to afford, and therefore access, a legal abortion service.

Policy Language
This movement of increasingly frequent state-level policy proposals to regulate abortion services is coupled by a trend of vague and misleading language consistently being used to rally support for these anti-choice legislative initiatives. Nebraska’s “Women’s Health Protection Act” allows the discussion of false medical information to be shared regarding abortion risks, and requires women to be screened for future mental and physical risks. Its title promotes the idea that women are being “protected” by this mandate. However, these “screenings” lack a scientific basis and intrude upon one’s right to privacy.

The use of misleading language is exemplified through the personhood initiative.  Personhood initiatives incorporate vague wording that surreptitiously assigns a fertilized egg the same rights as a fully functional human being.   Leading up to the 2010 election, petitions were circulated to gain signatures to put an amendment on the state ballot to be voted on. The personhood initiatives were unable to even be put on the state ballots the following states this year: California, Georgia, Nevada, Montana, Missouri, and North Dakota.  Similar initiatives on the state level that failed this year occurred in Virginia, Maryland, Kansas, Iowa, and Hawaii. However, personhood did succeed in being placed on Colorado’s 2010 state ballot, but was soundly defeated by a 3:1 margin as it had been in the 2008 election. This defeat greatly helps protect reproductive rights.  If personhood initiatives had passed, fetuses would have been viewed as having all the same rights as legal adults. This would have resulted in a de facto ban on abortions, the illegalization of birth control, emergency contraception, fertilization treatments, and stem cell research. Miscarriages could be investigated and treated as manslaughter. They also could have resulted in endless court cases, paid for by taxpayers, further overwhelming the already swamped state legal systems.

The question that has arisen is how these anti-choice laws are continuing to pass, when this right is still clearly protected by Roe v. Wade. This reproductive right is relentlessly being challenged through state laws, which could eventually lead to a change in the national policy (Sollom 1995). However, the public is seldom aware that these bills exist until they are passed and subsequently declared unconstitutional. Informing voters of the consequences of these policies is complicated by financial constraints and the struggle to remain on the political agenda. Choice and privacy are both constitutionally protected rights which continue to face opposition from extreme state legislation that utilizes vague wording which forces proponents of this freedom to constantly be on the defensive.


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