Editorial: Whether or not Amy Coney Barrett gets on the Supreme Court, abortion rights should stand
Judge Amy Coney Barrett, President Trump's nominee for the US Supreme Court, will be shown on Capitol Hill in Washington, DC on October 1. (Erin Scott / Pool via Associated Press)
For nearly half a century, women in the United States have had a constitutional right to safe and legal abortion. And most of the time, anti-abortionists have tried to take it away. While millions of women have exercised this right, nothing short of a war has been waged over their access to abortion. Results include a Congressional ban (known as the Hyde Amendment) on federal abortion funding and a patchwork of unnecessary state laws that have forced numerous abortion providers to shut down and leave some states with a single clinic.
US District Judge Lee Yeakel aptly summed up the situation in 2013 when he issued an injunction against a Texas law that would have placed new demands on abortion providers. Abortion, Yeakel wrote, "is the most controversial problem this country has faced since slavery."
Opponents, however, have yet to undo the foundation of abortion rights: The Supreme Court's finding in Roe vs. Wade (1973) that the 14th Amendment guarantees a right to privacy, which includes the right to abortion.
Before Roe, women were at the mercy of a deeply patriarchal, sexist society that believed the conception of a fetus was a sacrosanct event and that women were simply the vessels that carry it. Only four states had legalized abortion for any reason. In other states it was only banned or allowed completely when the woman's life or mental health was in danger.
For many women, this has meant a harrowing and often unsuccessful search for someone - preferably a doctor - to illegally perform an abortion, often for an absurd fee. A researcher from the Guttmacher Institute
It is estimated that 130,000 women received illegal or self-inflicted trials in 1972 alone, 39 of whom died. From 1972 to 1974, the death rate from illegal abortion among non-white women was twelve times that of white women.
In the years since then, Roe's principle has been upheld time and again by the court. Almost two decades later, the Supreme Court revisited the issue, stating in Planned Parenthood of Southeastern Pennsylvania v Casey (1992) that women have a right to an abortion until the fetus is viable, even though the government does done beyond this point has an interest in protecting both the fetus and the health of the woman. This decision set an important standard: a law cannot simply be enacted to pose a significant obstacle or burden to abortion.
Yeakel applied that standard when he blocked Texas law requiring doctors who performed abortions to have licensing rights in nearby hospitals and abortion clinics in order to be equipped like outpatient surgical centers. The Supreme Court agreed in Whole Woman's Health v Hellerstedt (2016), dismissing the law as a fraud designed only to create barriers to abortion. When Louisiana legislature passed a replica of Texas law, the judges threw it out by a margin of 5 to 4 for the same reason.
Then judge Ruth Bader Ginsburg died.
Among other things, Ginsburg was a staunch advocate of access to abortion and contraception. Amy Coney Barrett, the 7th Court of Appeal judge President Trump nominated to replace her, is likely anything but that.
Barrett's supporters and critics alike believe her addition to court will result in a case being taken that could overthrow Roe or - almost as badly - disregard Casey and comply with state laws that would undermine abortion rights. Had she heard the Louisiana case instead of Ginsburg, many observers believe that Court 5-4 would have split the other way and upheld the Louisiana Statute. That would leave Louisiana with just one abortion provider.
How did we get here? Roe vs. Wade can be considered a set law because of its longevity and its impact on women's lives. But unlike other landmark Supreme Court rulings like Brown vs. Board of Education (1954), which desegregated public schools, has never ceased to be controversial. Instead of dumping anti-abortionists, Roe just galvanized them. Gone are the days when people would line up in front of newly separated schools to yell at the black children trying to enter. But opponents of abortion routinely demonstrate outside clinics, sometimes yelling at the women who go in.
In fact, state lawmakers' efforts to restrict abortion have only intensified over the years since the Roe decision. From January 2011 to May 2019, according to the Guttmacher Institute, 479 abortion restrictions were enacted in 33 states, which corresponds to about 60 per year. That is a considerably faster pace than states have attempted to curb abortion in the last four decades after Roe.
Some of these measures were so blatant against Roe that they were blocked by federal courts, such as the ban on abortion six to eight weeks after pregnancy. The courts have also dropped some abortion bans for reasons the state doesn't like - for example, because the fetus was diagnosed with a serious illness or disability, or because the sex was chosen.
Laws that set absurd and unnecessary standards for clinics and providers were less outrageous, but more obstructive. In many cases, these measures forced the clinics to close before the courts could intervene. Today there are five states with only one abortion clinic. Other measures have mandated waiting times for abortions and prompting women seeking one to look at an ultrasound image of the fetus. Some states have insisted on multiple unnecessary visits to a provider to obtain the drug-induced abortion pills. These laws are particularly harmful to low-income women who cannot afford to take several days off to make multiple trips to a clinic far from their homes.
Overturning Roe, or lowering the bar Casey set on abortion restrictions, would open the floodgates for this kind of action, although polls show that most Americans want abortion legal in all or most cases and Roe doesn't should be knocked over. But these sentiments are shared along the party lines, with Democrats supporting abortion rights more strongly than Republicans.
Barrett is clearly against abortion personally. While serving as a law professor at Notre Dame University, she was a member of an anti-abortion faculty group and one of hundreds of professionals who signed an open letter to a meeting of Catholic bishops in 2015 expressing their belief in "the value of human life from conception to natural death. "In 2006, she was among a long list of signatories who declared in an anti-abortion ad in a South Bend, Indiana newspaper that they" oppose on-demand abortion and the right to life defend from fertilization to natural death ". On the more provocative second page of the ad, next to the signatures, it partly said: "It's time to put an end to Roe v. Wade's barbaric legacy."
Although Barrett never directly ruled an abortion case, she has been peripherally involved in a couple. In both cases, she signed Dissent, urging the 7th Circle to reconsider decisions that would prevent the state of Indiana from further restricting abortions - one being minors who had been approved by a judge for an abortion and the other abortion based on gender, race, or fetal diagnosis.
These differences of opinion are worrying enough. A more worrying sign is their article on the 2013 Texas Law Review, which discusses when the court should deviate from precedent and overturn one of its own decisions. "I tend to agree with those who say that there is a judicial duty to the Constitution and therefore it is more legitimate for them to enforce their best understanding of the Constitution than a precedent that they believe is clearly contrary to it stands ", she wrote.
Barrett acknowledged that some decisions are widely viewed as "precedents" that have become sacrosanct due to their public acceptance. But Roe vs. Wade, she suggested, is the kind of controversial decision that "court observers welcome the possibility of overdrive."
Roe should set a precedent because it guarantees women in America a fundamental right that they have relied on for decades. If the court has overturned a longstanding precedent in the past, it has often done so to grant rights, not to take them away. Witnesses to the Brown judgment. A woman's right to choose what to do with pregnancy before the fetus is viable would mean profound injustice and upheaval in the lives of millions of women of childbearing age. Nothing has changed medically since Roe, suggesting a woman taking control of her own body while a fetus is not viable.
The Supreme Court is currently considering whether to contest a challenge to Mississippi's abortion ban after 15 weeks of pregnancy. There are also four state bans on abortion that are requested for specific reasons (fetal diagnosis, gender) and that find their way through appeals courts. All were prevented, at least temporarily, from taking effect. All could travel as far as the Supreme Court.
What is worrying is that the landscape is bleak for the availability of abortions even at Roe. Women who live in any state with only one abortion clinic face the daunting task of getting to them. And it is always poor or low-income women who face the toughest obstacles to getting an abortion.
If Roe goes away, there will be states where abortion is legal and states where it is banned. And in those states where it is banned, there are likely to be more so-called self-administered abortions - either through illegally obtained drug abortion pills or some other self-induced method.
At this time, abortion is and should remain part of women's health care in the United States. Apparently every major medical organization supports access to safe and legal abortion. So should the Supreme Court.
This story originally appeared in the Los Angeles Times.
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