Forty-six years after the Supreme Court decision in Roe v. Wade affirmed the constitutional right to obtain an abortion, the protections of Roe are growing increasingly fictive.
In 1992, the Supreme Court ruling in Planned Parenthood v. Casey, while affirming that abortion was still a constitutional right, gave states the ability to regulate abortions. It was, as one scholar has written, “a compromise that will protect women only from the most overwhelming and total coercion.” What almost all predicted—that Republican-led state legislatures would seize the opportunity to pass new laws restricting abortion access (laws that would no longer be ruled unconstitutional as they had in the past)—has come to pass. States have passed more than 1,000 laws restricting abortion access since Roe was decided. In the wake of Casey there’s been a constant chipping away of abortion rights, from laws requiring onerous waiting periods to (often arbitrary) 20-week cutoffs to laws regulating the width of hallways in abortion clinics. In response to these onerous restrictions, abortion clinics have been forced to close; seven states—West Virginia, Kentucky, Mississippi, North Dakota, South Dakota, Wyoming and Arkansas—have only one abortion clinic left.
These laws, passed by Republican-dominated legislatures, perform a very neat and horrific trick. They transform the real woman—her life, her needs, her autonomy—from a person to a vessel. But then, that is the ideal state of women for this kind of legislative regime. Women are legally erased, their rights as citizens curtailed transforming our bodies into little more than a passive tabula rasa on which the state inscribes its morality.
Take, for example, how access to abortion has dwindled even in states with more than one clinic, making what the Supreme Court once ruled a constitutional right, nearly impossible to access. Here’s what happens in Texas, the state where I grew up: If a person wants to get an abortion, you first need to have a mandatory consultation at which you are given this booklet; one of the first pages stresses that “babies develop the ability to feel pain while in the womb.” Then you are compelled to wait 24 hours before the actual procedure. You must also undergo an ultrasound, during which the health care provider must show you the image of the fetus. Insurance doesn’t pay for abortions unless your health or life is in severe danger, or in the case of Medicaid, if your pregnancy is the result of rape or incest as well. If you’re a minor, your parent or guardian needs to give their consent.
This is all assuming that one can even get to a clinic in the first place, which has become increasingly difficult in Texas and in many states throughout the country. In 2014, according to the Guttmacher Institute, more than 55,000 abortions were performed in the state, which represents a 28 percent decline in the abortion rate from 2011 to 2014. In that same period, the number of places where people could obtain abortions also went down by 29 percent (from 62 to 44). Since 2013, half of the state’s abortion clinics have closed. Today, almost half of the state’s residents live in a county without an abortion clinic. Even for those who have the financial means and ability to visit a clinic several times and to pay for the procedure themselves can find the process a burden. For those who live far away from a clinic or who live paycheck to paycheck, the cost of travel plus paying out of pocket for the procedure and the days one must take off due to the mandatory waiting period makes it so logistically complicated that, for many women, it’s practically impossible.
As in Texas, the abortions performed in the U.S. has declined in recent years, a statistic lauded by anti-abortion advocates as proof that fewer people support or want abortions, yet the reality is that the reasons for the decline point to both the success of increased access to reproductive care—more people are on some method of birth control—as well as the roadblocks legislatively erected.
As Diana Greene Foster, a professor at the University of California-San Francisco and the director of the Turnaway Study, wrote last October for Rewire News, “Research in the United States and abroad shows that when women are denied legal abortions, many carry their unwanted pregnancies to term and give birth.” The Turnaway Study examined how unintended pregnancies affected women’s lives, and its researchers spoke with women who received abortions and women who were turned away from clinics because they were past the cut-off date. What Foster and other researchers found is that “more than two-thirds of women who were denied abortions because they were too late in pregnancy carried their unwanted pregnancies to term.”
“Usually the only difference between making it and not is just realizing you are pregnant,” Foster told the New York Times in 2016. “If you’re late, abortion gets much harder to find. All the logistic concerns snowball—money, travel, support.” Foster estimated that “even before the imposition of most of the current state gestational limits, 4,000 women gave birth each year because they were turned away from clinics due to advanced gestation.”
The Turnaway Study found there were “serious consequences” when women were denied an abortion, from a greater chance of experiencing serious health issues towards the end of pregnancy, to a higher chance of staying with an abusive partner, to a higher likelihood of suffering anxiety and a loss of self-esteem in the months following the denial, coupled with a (temporary) decrease in goals for one’s life. For those who already had children, the study also found that a parent’s inability to obtain an abortion had “serious implications” for their existing children as well.
And the financial implications when denied an abortion can be dire—according to the Turnaway Study, women who are denied abortions are three times more likely to fall below the poverty line after giving birth, even when all other variables are taken into account.
Abortion restrictions are only one outcome of the idea that the fetus has inherent rights; as abortion access is steadily chipped away, we have seen a concurrent rise in the criminalization of pregnancy, an enshrining of the rights of the unborn fetus in our criminal and legal codes pushed for decades by anti-abortion zealots. Dozens of states now have fetal homicide laws on their books. Pregnant women can—and have been—charged with crimes for doing drugs while pregnant, their miscarriages deemed murder under the law. “These laws,” the New York Times editorial board warned last December, “are creating a system of social control that polices pregnancy.”
As the fetus increasingly gains legal personhood—an abstraction turned real—the rights of the person carrying it concurrently fade away, a loss of personhood that is increasingly being written into states’ criminal and legal codes. Today, on the 46th anniversary of Roe, it’s worth remembering how tenuous momentous legal victories; how limited the rights that they ensure are, especially for women of color; how quickly women can be erased.