September 2013 Bar Bulletin
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September 2013 Bar Bulletin

Whittling away at Abortion: Is the Right Still Meaningful?

By Laurel Jones


Gender equality encompasses a vast spectrum of issues, including (but in no way limited to) pay equity, freedom from gender-motivated violence, educational opportunity and access to healthcare services. Nestled within this spectrum is also the right to seek safe and legal abortion care.

For reproductive rights advocates around the country, this summer has been exceptionally tumultuous as many state governments have hurried to finish their legislative sessions. In fact, some states — most notably Texas — have called for extended special legislative sessions solely for the purpose of passing controversial laws that severely impede a woman's right to seek safe and legal abortion care.

Texas House Bill 2 was passed by the state legislature on July 12, despite an almost 11-hour filibuster by Sen. Wendy Davis, and massive public backlash. The Texas bill is only one of several significant laws that have been enacted in the 11th hour of states' legislative sessions over the past few months. In a rush of legislative and executive activity, multiple states, including Texas, Ohio, North Carolina, North Dakota and Wisconsin, among others, spent the early days of summer pushing through restrictive laws that hinder the access of women in those states to abortions.

These laws are the latest, and frighteningly successful, efforts of anti-choice officials to chip away at the rights of women who seek abortion and other reproductive healthcare. These unnecessary regulations create a myriad of new barriers, including a ban on all abortion procedures past 20 weeks, requiring that all clinics be certified as ambulatory surgical centers, barring public hospitals from entering into emergency care agreements with abortion clinics, and requiring abortion providers to have admitting privileges at local hospitals.

Gestational-age Bans

In 1973, Roe v. Wade established that a woman has a fundamental right to seek safe, legal medical care in order to terminate her pregnancy. The court explicitly clarified that the right is not unlimited, but that restrictions could only be for specific, compelling government interests in protecting maternal health and in protecting potential life after a pregnancy has progressed past a certain point. The Supreme Court generally reaffirmed its decision in Roe in the 1992 case of Planned Parenthood v. Casey.

Under Casey, abortions could be restricted to protect potential life after the point of fetal viability (at or around 24 weeks, according to the American Congress of Obstetricians and Gynecologists). The Supreme Court has yet to hear a challenge on any of the many recent laws, such as Texas HB 2, that restrict abortions well before the point of fetal viability.

Despite the fact that these early-gestational bans impose significant restrictions on the right to an abortion well before the point of fetal viability, these laws will remain in place until they are successfully challenged and struck down by the courts. Similar gestational-age bans have already been overturned by an Idaho district court and, in Arizona, by the Ninth Circuit Court of Appeals.

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