Her Body, Our Laws

by Michelle Oberman

  In the first twenty years following Roe, states with pro-life majorities explored other ways of using abortion regulations to tip the balance away from abortion. They passed laws requiring pregnant teens to obtain parental consent, and laws requiring patients to wait a day or two between requesting an abortion and actually getting one.11 Proponents saw the regulations as responsive to state goals of protecting health and life. Opponents decried the laws as obstacles to a woman’s ability to exercise her constitutional right. Legal battles ensued in almost every state as lawmakers tested the limits of their power to regulate abortion.

  Eventually, the Supreme Court had to resolve the disputes by letting states know how far they could go in their attempts to nudge women away from abortion. In 1992, the Supreme Court decided Planned Parenthood v. Casey, creating the “undue burden test”:12

  Unless it [imposes an undue burden] on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.13

  For pro-life lawmakers, Casey’s “undue burden” test was an invitation to pass laws intended to dissuade abortion-minded women. At first, pro-life states moved slowly, with most states focusing on issues like waiting periods. Starting in 2004, the pro-life group Americans United for Life launched a model legislation project. It drafted a broad set of antiabortion laws, including provisions banning abortion after twenty weeks on the grounds that the fetus could feel pain, and restricting the settings and the providers for abortions. The group encouraged pro-life states to enact whole slates of antiabortion laws, keeping track of its successes with a national pro-life “report card” system.

  Some of these model statutes are plainly unconstitutional, as they have the effect of completely curtailing abortion. One state, for instance, passed a law revoking the medical license of any doctor performing an abortion.14 But most of the laws work at the margins—nudging rather than shoving women away from abortion.

  How Much Do Abortion Laws Tip the Balance?

  There is surprisingly little consensus about whether and how much these abortion laws and regulations matter. We simply don’t know how often laws requiring things like waiting periods or ultrasounds tip the balance, leading a woman to choose to carry to term rather than abort her pregnancy.

  At the national level, there’s a bitter dispute about whether restrictive abortion laws lead to lower rates of abortion. Since 2008, abortion rates have been declining all over the country.15 The leading pro-life economist says this decline proves the laws are working to deter women from having abortions. The pro-choice economists respond that he’s wrong, because abortion is declining throughout the country, including in states without pro-life laws.16

  For our purposes, though, the question is not necessarily how often or how much the laws deter abortion. What we want to know is how the law might tip the balance away from abortion.

  Sociologist Sarah Roberts has undertaken a deep inquiry into how abortion restrictions affect women’s actual decisions. After Utah enacted a seventy-two-hour waiting period, one of the longest in the country, Roberts surveyed five hundred women who sought abortions in Utah. Her study found that the waiting period had an impact on women’s decisions, but in a surprisingly indirect manner:

  The 72 hour waiting period and two-visit requirement did not prevent women from having abortions, but it did burden women with financial costs, logistical hassles, and extended periods of dwelling on decisions they had already made. The wait also led some women to worry that they would not be able to obtain abortion drugs, and pushed at least one beyond the clinic’s gestational limits for abortion.17

  Roberts found no evidence suggesting that the three-day waiting period led women to change their minds about abortion. But it is clear that the law had an impact on the woman contemplating abortion: it increased the costs of having an abortion.

  Laws restricting abortion by banning insurance coverage or requiring waiting periods don’t target any particular set of pregnant women. The laws are neutral on their face. Yet poor women disproportionately feel the impact of these laws.

  Take, for example, a hypothetical low-income single mother in Wisconsin. In recent years, that state enacted a law requiring a twenty-four-hour waiting period, and another law banning the use of telemedicine by abortion providers. The state has only three abortion providers, all in Madison or Milwaukee. The abortion procedure itself costs, on average, $593. For a single mother in rural Wisconsin, though, the actual costs are much higher. To the cost of the procedure, she must add the costs triggered by the waiting period and the distance she must travel. Gas, lodging, child care, and missed work add up, so that in the end, an abortion actually costs her $1,380.18

  In the end, abortion laws aim to nudge women away from abortion by raising the costs of getting one. And the women most likely to be nudged away from abortion because of the costs are those who are poor. Ironically, and to my mind most cruelly, these are the same women who were nudged toward abortion because of the high costs of motherhood.

  Our policies on both ends of the scale leave poor mothers so constrained by their options that it is hard, in good faith, to see either motherhood or abortion as a “choice.”

  CONCLUSION

  From a distance, we can see that the abortion laws in the United States are not different in kind from those in El Salvador. El Salvador’s ban on abortion works by raising the costs and risks associated with terminating a pregnancy. Wealthier girls and women in El Salvador are better able to offset these costs; they have access to private doctors, and they can travel. They are more insulated than their poorer sisters from the hard shove of the abortion ban.

  Likewise, US policies and regulations governing motherhood and abortion are simply ways of pushing a woman one way or the other as she contemplates her response to an unplanned pregnancy. There’s the dramatic push of making abortion legal (or criminal). And there are the gentle pushes offered by the Birth Choice women. No life-size cardboard Jesus to shame them. Instead, perhaps, a life rope. Health insurance, housing, help finding work, the prospect of being reunited with children lost to foster care.

  The behavioral economists speak of nudges and shoves, distinguishing laws that work indirectly and gradually (the nudges) from those that directly penalize a given activity (the shoves). But when it comes to abortion, this dichotomy between nudges and shoves does not fully capture the impact of the law on pregnant women. Not all nudges are alike. Or rather, what feels to one woman like a gentle nudge is a hard shove to another.

  Let’s be honest about our abortion policies. Rather than nudging a poor pregnant woman by giving her incentives to choose motherhood, contemporary US abortion laws work by constricting her options. Whether for reasons of fiscal constraint or a belief that abortion is morally abhorrent, our antiabortion laws are cheap. They show no love for the abortion-minded woman. Instead, they work to tip the scales toward childbirth by simply raising the costs of abortion.

  The real challenge for abortion laws is yet to come. Pro-life lawmakers cannot be content with laws that merely nudge women toward childbirth or away from abortion. They’ve been elected on a platform that affirms that life begins at conception and regards abortion as murder.

  There is a pent-up demand for the harder shove of making abortion illegal.

  The final chapter of this book examines the changes that will be set in motion in the event that Roe is reversed and states are once again free to make abortion a crime.

  FIVE

  AMERICA AFTER ROE

  Of the many things dividing the United States, none seems more salient than the divide between pro-life and pro-choice forces. At the heart of the dispute is an assumption that, if Roe is reversed and abortion becomes illegal, things will change.

  We talk about banning abortion as if we all understand how things will change if abort
ion becomes a crime. On both sides, we invoke naive generalities and obsolete references when imagining post-Roe America. The coat hangers, staple features of pro-choice protesters, suggest that women will die if abortion becomes illegal. And the pro-life slogan, “Stop abortion now,” seems to assert that making abortion illegal will stop women from having them.

  These vague suggestions do not serve us well. Rather, they impede clear thinking about what will happen if states are permitted to make abortion illegal. A variety of legal issues will be set in motion by permitting states to criminalize abortion, many of which arise from the fact that, even without Roe, abortion will remain legal in many states around the country.

  After considering how Roe’s demise would alter, but not halt, women’s access to legal abortion in the United States, I turn to the issue of abortion law enforcement. Making abortion a crime is actually more a question than an answer. If abortion is a crime, who are the criminals?

  As we reflect upon the way in which laws against abortion matter, the experiences of other countries have much to teach us. You already know a good deal of these lessons, having taken this journey with me. You’ll remember Beatriz, whose illness and doomed fetus illuminated the ways in which symbolic laws get tested by hard facts. You’ve met Christina and the other Salvadoran women serving long prison sentences for crimes they did not commit.

  Questions of abortion law enforcement are clear: who will we target for punishment, and who will we actually catch? The choices we face, as we look to abortion crimes, are surprisingly obvious, and the consequences are as disturbing as they are predictable.

  ABORTION LAWS IN THE ABSENCE OF A CONSTITUTIONAL RIGHT

  Judging from how we fight over Roe, you might think that if Roe were overturned, it would be impossible to get a safe, legal abortion in the United States. The truth is otherwise: those with enough time and money will find it easy to obtain a legal abortion, regardless of the laws in their home state. This is because abortion will remain legal in many US states, regardless of the Supreme Court’s position on the matter.

  Let me explain. Back in 1972, every state had its own laws about abortion. Most states made it a crime, but included some exceptions, such as in cases where the mother’s life or health was at risk. A few states—New York, Washington, California, and Hawaii—had recently legalized abortion, permitting it for any reason, before viability. Rather than “legalizing” abortion, the Supreme Court’s 1973 decision in Roe effectively told the other forty-six states they needed to do so, too.

  Talk about the law making a hard shove! By finding that a woman has a constitutional right to privacy under the Fourteenth Amendment, the court overturned the criminal laws of forty-six states.1 Any decision that reverses Roe must begin with a reconsideration of the scope of the constitutional right to privacy.

  Roe v. Wade used the concept of fetal viability as the outer limit on a woman’s right to privacy. A woman has a broad right to abortion, as a matter of her private choice, before the point at which the fetus is viable. If the fetus is not yet capable of living outside the woman’s body, abortion is permissible. If the fetus could survive independently, however, she can no longer abort it.

  There was no axiomatic reason for picking viability as the dividing line, though. The court might just as easily have drawn the line earlier or later in pregnancy. And in the absence of Roe, a state might well choose some other cutoff point along the gestational path. Indeed, several states have passed laws banning abortion any time after one can hear a fetal heartbeat. Although these laws cannot currently take effect because Roe still protects a woman’s constitutional right to abortion, they hint at how some states might want to restrict abortion if Roe falls.

  Even if the Supreme Court reverses itself and decides that the Constitution no longer protects a woman’s right to abortion, though, it still will need to set limits on how states frame their abortion laws. For example, it is clear that no state could ban abortion completely. No state could force a woman to continue a pregnancy that poses a threat to her life because the Constitution guarantees a woman’s right to life. Unlike in El Salvador, where the country’s constitution declares a right to life from the moment of conception, nothing in our Constitution recognizes an absolute “right to life” for the fetus. And there’s little chance of this changing any time soon: Constitutional amendments are exceptionally hard to pass, requiring approval not just by both houses of Congress, but also ratification by a majority vote in three-quarters of the states in the country.2

  If the Supreme Court reverses Roe, then, the open question is how far the court will allow states to go. Will it narrow a woman’s privacy right to some earlier point in pregnancy, or will it jettison the privacy right altogether, permitting states to dictate the circumstances under which abortion will be allowed?

  It’s worth playing out the tape on the most extreme case, just to see how much it would matter. Let’s imagine that the Supreme Court goes so far as to permit states to ban abortion except when a woman’s life is at risk. How many states would subsequently enact such bans?

  When I asked a pro-life Oklahoman state senator what would happen if Roe v. Wade were reversed, he sighed and said, “It will be a bloodbath on the right.” Pro-life communities will be forced to reckon with the disparate views of their constituents, the vast majority of whom want to keep abortion legal in cases of rape, incest, and fetal anomaly. If Roe falls, there will be a furious battle over how to frame the crime of abortion.

  But not all states will be fighting. Perhaps the most important thing to remember when thinking about America after Roe is that not all states will choose to criminalize abortion. Even without Roe, abortion will remain legal in as many as half the states. This fact often gets lost in the contentious debates over the Supreme Court’s rulings on abortion. In a number of states around the country, the Supreme Court position doesn’t make a difference. Many states are safely pro-choice, with judicial decisions interpreting state constitutions as protecting a woman’s right to privacy, and large majorities favoring legalized abortion.3

  If Roe v. Wade is reversed, it is clear that the battle over abortion laws will not end. Instead, while pro-life states struggle to determine the scope of laws restricting abortion, elsewhere, abortion will be legal. As a result, it is fair to say that the most significant barrier to abortion, in a world without Roe v. Wade, will be wealth: how much will an arbortion cost and how far must one travel in order to get one?

  ACCESS TO LEGAL ABORTION IN A POST-ROE AMERICA

  We already know what happens when abortion becomes a crime. Women with money get abortions by traveling to places where it is legal. Remember what I told you about Chile, where I met Marina, who told me, “The rich women fly to Miami. Women like me stay here.”4

  “Abortion tourism,” as it is known, happens here, too. In 1972, the year before Roe, when abortion was legal in only four states, a review of medical records shows that 40 percent of abortions were performed on women who came from out of state.5 Even today, when abortion is legal in all fifty states, women travel in order to avoid local abortion restrictions. For example, in 2014, New Mexico’s Department of Health data revealed that around 20 percent of the forty-five hundred women who got abortions there came from out of state.6 And with a number of states now banning abortion after the twentieth week of pregnancy, many women face legal barriers to abortion when second trimester tests reveal a severe fetal anomaly. In such cases, women often travel to states like California or Colorado, where the law permits abortions, on limited grounds, through the twenty-eighth or even thirtieth week of pregnancy.7

  If abortion remains legal in even one state, it will be available to any woman who can get to that state. This guarantee is built into the structure of our federal system, through the Constitution’s Privileges and Immunities Clause, which forbids a state from treating citizens of other states in a discriminatory manner.

  Nor can states readily stop their own residents from leaving home in or
der to get an abortion. The Constitution guarantees the right to travel freely between the states; a state cannot stop a woman from leaving home, even if it knows she’s intending to evade its laws.8

  In effect, if abortion becomes a crime, there will be two laws: one for those who can afford to travel and one for those who cannot. No one believes that women will stop having abortions, simply because they are illegal.

  A BLACK-MARKET ABORTION’S PREDICTABLE CONSEQUENCES

  Abortion rights sympathizers use the symbol of the coat hanger to call to mind the thousands of women who died from illegal abortions in the years before Roe v. Wade. In the decades leading up to the legalization of abortion, an estimated five thousand American women died that way, every year. Make abortion a crime, and the assumption is that we will once again see hospitals filled with women dying from illegal abortions.

  A different story emerges when one takes a close look at the mortality rates in countries worldwide today in which abortion is either banned or permitted only to save the mother’s life. Consider Latin America, where the vast majority of countries have restrictive laws against abortion. There are approximately 4.6 million illegal abortions in Latin America every year. In 1990, researchers estimated an abortion mortality rate of 30 deaths per 100,000 live births. By 2008, the rate had dropped to 10.