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On June 27, the Supreme Court invalidated the onerous anti-abortion laws known as Targeted Regulations of Abortion Providers (TRAP). The anti-abortion movement claims these laws — which have proliferated since 2010 — protect women’s health. But in Whole Woman’s Health v. Hellerstedt, the court rebutted this claim, declaring that Texas’s abortion restrictions place an undue burden on and substantial obstacle in the way of women seeking abortions.
By siding with the freestanding clinics that perform nearly every abortion in the United States — in 2011, 94 percent of all abortions occurred at these establishments, even though they represented only 47 percent of abortion-providing facilities — the Supreme Court stood with abortion patients and the providers who serve them.
This moment matters not only for Texas women, but also for the entire reproductive justice movement. Between 2011 and 2015, states enacted 288 abortion restrictions. Just since the start of 2016, another thirty-eight restrictions have been passed.
The anti-abortion movement has deftly painted abortion clinics as substandard, dirty, and morally bereft because they are uniquely isolated from the rest of our healthcare system. The average American does not come into contact with abortion providers the way that they do dentists, primary care physicians, or specialists. So abortion clinics — and the procedures that take place there — remain shrouded in mystery, allowing restrictions like those in Texas to seem eminently reasonable.
The Whole Woman’s Health decision exposed anti-abortion legislators’ deceptions. Moreover, the case highlighted new outlets for activists and advocates to fight back — and to fight for more.
A New Wave
Abortion advocates are rightly hailing the court’s decision as a turning point in the struggle for real abortion access. After the decision, multiple states’ restrictive laws fell: the Supreme Court denied Mississippi’s and Wisconsin’s appeals, permanently blocking admitting privilege restrictions; Alabama’s attorney general admitted that the enjoinment of a similar law would stand; Planned Parenthood announced its intention to challenge TRAP laws and other restrictions in Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, Virginia, and Texas. And many more states can expect challenges: as of June 1, 2016, twenty-eight states have some kind of TRAP law on the books.
Recent victories in cases covering abortion restrictions beyond TRAP laws have also bolstered the reproductive justice movement. A federal judge blocked the enforcement of Indiana’s 2016 “reason” ban, which prohibits abortions performed on the basis of the fetus’s race, sex, color, national origin, or potential or diagnosed genetic anomaly.
The same judge also blocked the state’s requirement that aborted fetal tissue be buried or cremated the same way as human remains. Other federal courts blocked bans on the use of public funds for abortion providers and their affiliates in Florida, Utah, and Kansas — including those that do not perform abortions.
Other restrictions — like highly burdensome waiting periods and counseling requirements — have become a key target for abortion advocates. These restrictions delay care, which is often compounded by the travel requirements and provider shortfalls that the Supreme Court cited as substantial obstacles in Whole Woman’s Health.
Advocates also plan to challenge laws banning certain kinds of abortions: medication abortion, dilation and extraction (D&E) procedures — the most common second-trimester abortion — and abortions performed twenty weeks post-fertilization.
The Center for Reproductive Rights’s suit on behalf of Louisiana’s two remaining abortion clinics offers a preview of these new battles. Their complaint challenges the eight 2016 anti-abortion laws enacted by Governor John Bel Edwards, which cover everything from restrictions on fetal tissue donation to a ban on state funding for abortion providers and businesses that work with them.
Notably, the providers refute Louisiana’s claim that D&E endangers patients — there is no safer way to perform an abortion after fifteen weeks — and asks the federal court to weigh the benefits and burdens as prescribed in Whole Woman’s Health.
Finally, the suit attacks Louisiana’s seventy-two-hour waiting period. Abortion remains the only procedure subject to a waiting period, which has been shown to do nothing more than force women to delay their abortions, often raising their costs and risks. According to the complaint, “No other Louisiana law prohibits a competent adult from granting informed consent to any other medical procedure for any period of time, let alone three days.” This and future challenges to waiting periods send a powerful message that women must make their own reproductive healthcare decisions.
As these lawsuits move forward, reproductive justice advocates know that they cannot rely on the courts alone. Legislative buy-in will be essential, and organizations are already shopping bills to legislators in states with TRAP laws.
Some simply seek to repeal existing TRAP laws; others serve as proactive measures that ensure a woman’s right to access abortion care. Regardless of the election’s outcome, we can expect a flurry of legislative activity in the post–Whole Woman’s Health landscape.
This is an exciting time for reproductive justice advocates, but we cannot afford to lose sight of the women impacted by TRAP laws and other restrictions. Access to abortion is more than an ideological battle waged on paper. It is a battle with very real implications for women who are poor, women who live in rural areas, and women of color — women whom our political system too often overlooks.
We must remember the Texas women whose rights were denied while the now-invalidated provisions were in effect. In three years, the number of clinics in Texas dropped from forty-one to nineteen, leaving millions of women without access to abortion and other essential health services.
But even after these restrictions disappear, many women will still lack access. Many Texas clinics will not be able to reopen. After struggling to pay fines and the costs of licensing requirements, they simply do not have the resources; if they do, the process of acquiring new buildings, equipment, insurance policies, and staff could take years.
In an interview with ThinkProgress, Amy Hagstrom Miller, the director of Whole Woman’s Health, estimated that each clinic would need about $200,000 to reopen, a figure that does not include the cost of new facilities. Moreover, the few providers able to meet this financial burden will still have to obtain a state license to provide abortion, which will likely further delay the process.
While Whole Woman’s Health successfully struck down TRAP laws and allowed the clinics that are currently open to stay that way, severe damage has been done — and Texas is not alone. Rebuilding the reproductive health infrastructure remains an uphill battle, especially in states like Mississippi, Alabama, and Ohio.
While the relentless attacks from anti-abortion activists have thrown up obstacles to abortion access, we should also blame the conservative political discourse surrounding abortion in the United States.
Since the 1990s, the pro-choice movement and Democratic politicians — perhaps most notably 2016 Democratic presidential nominee Hillary Clinton — have couched their support for abortion in the mantra that the procedure should be “safe, legal, and rare.” But abortion isn’t rare — by age forty-five, three in ten American women will have had one.
The word “rare” not only underestimates abortion’s prevalence, it also acts to stigmatize it. “Rare” suggests that abortion is only permissible under certain conditions, and opens public debate about those circumstances, creating a dichotomy of “good” and “bad” abortion patients.
“Good” abortion narratives typically involve women who need to be “saved” — usually involving cases of rape, incest, and sometimes teen pregnancy or fetal anomaly. When abortion does not fall neatly into these categories, moral failure — specifically a lack of “personal responsibility” — is blamed.
No one should have to present herself as a victim to receive critical healthcare. Abortion is not an isolated event, but part of the much larger web of women’s lives and the structures that shape them. The ability not only to choose but also to access the full spectrum of reproductive healthcare, including abortion, is fundamental to women’s autonomy.
This framework too often erases the fact that choice also depends on economic status. Under capitalism, choice exists only within the context of the market economy, where it is commodified. Reproductive decision-making is not exempt; abortion, childbirth, and raising children all have a monetary cost. It is impossible to decouple reproduction from economics.
Three-quarters of abortion patients in 2014 had incomes less than 200 percent of the federal poverty level. Many of these women struggled to pay for their abortion care. The Turnaway Study — a 2010–15 longitudinal study of women seeking abortion care around the United States — found that for more than half of women who had an abortion, their out-of-pocket costs were equivalent to more than one-third of their monthly personal income.
When health care becomes commodified, it is regarded as a privilege, not a right. Poor women are routinely scrutinized for choosing both to parent and to abort. This language is often racialized and targets poor black women, who are deemed “unfit” mothers — invoking the myth of the welfare queen — while simultaneously denied abortion access and condemned for their moral disorder, sometimes even being accused of black genocide.
Public funding restrictions — most notably the Hyde Amendment — further stymie low-income women’s access to abortion. Since 1977, this federal budget rider has banned federal dollars from paying for Medicaid-insured women’s abortion except in the most limited circumstances. This means that although 35 percent of women who had abortions in 2014 reported having Medicaid, only those living in the thirteen states that cover the procedure with their own Medicaid funds could use it. Abortion is the only healthcare provision singled out for funding restrictions.
Private abortion funds like the National Abortion Federation (NAF) and smaller local funds like the DC Abortion Fund try to meet the funding gap by helping women navigate personal fundraising and providing direct grants to patients. However, they often operate on small budgets and rely on volunteer staff, making it difficult to meet their patients’ full needs.
Abortion funds, as nonprofit organizations, are also forced to vie with other interests — including similar funds — over limited resources. In order to do so, they sell an image of the “deserving” patient.
Only in a flawed system that endorses private philanthropy as a replacement for public programs would funds like this exist; individual giving is neither a sustainable nor a viable alternative to a real social safety net. Further, the funds’ need to prove that abortion patients are “deserving” inadvertently perpetuates the notion that abortion is a privilege. We must start treating abortion care as a necessity — not a luxury. The way forward lies in pushing back public funding restrictions at every level, from cuts to federally funded family planning providers to repealing the Hyde Amendment.
Legal and legislative action is gaining ground, and the political conversation is shifting. Both Hillary Clinton and Bernie Sanders pledged to repeal the Hyde Amendment, and the Democratic Party incorporated its repeal into its 2016 platform. The EACH Woman Act, which negates the Hyde Amendment and prohibits legislative interference with private insurance abortion coverage, continues to collect sponsors in Congress. But the conversation is still not loud enough.
And while we’ve had important victories this year, and abortion rights are finally being taken seriously, the fight is just beginning. We must organize against a system that stigmatizes and delegitimizes abortion access. To combat the stigma that allows the anti-abortion movement to assert falsehoods as facts, we need to make it abundantly clear that abortion — safe, legal, and accessible abortion — is fundamental to women’s lives.
Listen to those who have had abortions — the mothers, the students, and the workers. Learn what the procedure actually entails and talk to your friends about it. Donate to your local abortion fund, host women coming to your city for their abortions, make a scene at your state legislature. Organize against unfair economic policies and cuts to social welfare. Demand evidence that abortion laws support health. Be unafraid to shout abortion, and all the reasons people have them. The Supreme Court victory showed that activists can fight and win in the battle for reproductive rights. We can make abortion access a reality, not just a theoretical right, for all women in need.