Undeniably, when the Roe v. Wade (1973) decision was announced, it made headlines and broke down the barriers for women to receive access to legal and safe abortions, although not without dissent and anger from conservative factions. Although the Supreme Court permitted states to have the ability to regulate abortions through its decision, which resulted in varied restrictions per state, the procedure was still relatively accessible to women throughout the United States.
Until recently, states have been reluctant to create laws effectively banning legal abortions. States with a history of conservative politics have now enacted legislation that severely restricts women's access to abortions; they have limited operating facilities to only eight total. Texas, for example, passed the law House Bill 2 in 2013 under Governor Rick Perry. The law requires that doctors who are performing the procedure possess a "professional privilege" which allows the physician to admit a patient to a hospital within thirty miles of the clinic or facility.
The law also prohibits abortions beyond twenty weeks and places more stringent restrictions on drugs inducing abortions. As a consequence of House Bill 2, women residing in rural areas will be virtually unable to access an easy or affordable abortion. [1] [2] The Texas state legislature claims that these new restrictions are necessary to protect patients’ safety, while opponents of the law find it more restrictive than medically necessary. [3] Because the restrictions established in House Bill 2 are so stringent and opponents of the law would argue it oversteps its constitutional allowances, there is a chance that certain provisions of Roe v. Wade could be more easily challenged in the future as more of these restrictive laws are enacted.
Beginning in mid October, the Supreme Court chose to temporarily prohibit the House Bill 2 from being enforced in Texas. The Court blocked the law with an unsigned order presumably from Chief Justice Roberts, and Justices Kennedy, Bader Ginsberg, Breyer, Sotomayor, and Kagan. [4] As a result of this order, the debate over women’s reproductive rights has been reignited. The obvious question that persists is: how did a seemingly progressive decision turn back the clock, where abortion and women's reproductive rights became so institutionally restricted?
By examining the initial Roe v. Wade decision, which legalized abortion, many would acknowledge that it was creating an opportunity for true women’s rights advocacy debates to occur, especially on a national level. Women were successful in obtaining the legal right to accessible and safe abortions, ultimately increasing reproductive rights. However, if the Court’s ruling was indeed a progression towards more rights, why was Texas’ House Bill 2 law, and many others similar to it enacted in so many regions of the United States? Furthermore, why have these laws yet to be challenged and brought before the Supreme Court?
Roe v. Wade included numerous victories for women's reproductive rights. The Court ruled that criminalizing abortion violates a women's right to privacy (established through the notion of penumbras [inherit rights], in the case ofGriswold v. Connecticut (1965), the Due Process Clause of the 14th Amendment, and the 9th Amendment. [5]
The ruling declared that during the first trimester, a doctor's medical judgment permits abortions, and the state may not intervene. The Court also held that the state might not put an "undue burden" on the women in creating their restrictions. However, the Court determined that a state does have an interest in this manner and may intervene during certain critical points in the pregnancy. The Court holds that, "the state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life." This statement indicates that although a woman has a right to privacy, and therefore the right to terminate a pregnancy if she chooses to do so, her right is not absolute, and consequently is not entirely protected from interference from the state. Therefore, the state is permitted to regulate or limit access to abortions at a certain stage in the pregnancy. This occurs when the state has a "compelling interest", which requires strict scrutiny, as privacy is a fundamental right, when the court feels state interests are so compelling that they override the needs or wishes of the mother. [6]
The drawback that arises from this decision is its ambiguity and the lack of strict guidelines on the states, i.e. the decision does not define specifically what the state is permitted to do, leaving large amounts of flexibility for state legislatures to restrict the accessibility of abortions.
As a result of this decision, it has become commonplace for conservative states to increasingly place restrictions on reproductive rights after the first trimester without repercussions or court challenges. For a considerable period of time, it appeared that Texas' substantial restrictions that mandated abortions take place in facilities that meet the criteria of an "ambulatory surgical centers," and placed clinics to standards comparable to hospitals meant that all but eight facilities faced immediate closure. [7] As a consequence, women had severely limited access to safe abortions, which created fear that some women would resort to dangerous and illegal procedures for abortions, similar to what occurred prior to the original Roe v. Wade decision. [8]
It is also important to note that the Supreme Court’s order did not determine whether the recent Texas law was unconstitutional. Instead, the Court simply prohibited the enforcement of law while the legal battle continues, giving adequate time for further appeals to be made. [9]
Ultimately, proponents of the law, including conservatives and many Texas lawmakers, continue to maintain that this law ensures a safer procedure due to their concern with the mother's health. Conversely, opponents of the law, such as liberals and women's health advocates, argue that this law is medically unnecessary to protect women (as procedures done today in clinics are safe), makes legal abortion very expensive, and therefore intentionally reduces women's reproductive rights. [10]
With conservatives and liberals on the opposite end of the spectrum it is unclear what the outcome will be. The Court, which originally decided Roe v. Wade in a 7-2 decision, knows that laws concerning abortion is highly contentious and requires careful consideration before reaching their decision. Although House Bill 2 has yet to be challenged and brought forward as a case, with the possibility of making it up to the Supreme Court, it could potentially pose civil liberties violations and eventually impact provisions of Roe v. Wade.
References
1. Denniston, Lyle. “Texas Abortion Law left in Effect.” SCOTUSblog.
SCOTUSblog.com, 19 November 2013. Web. 28 October 2014.
2. Mears, Bill. “Supreme Court Allows Texas Abortion Clinics to Reopen for Now.”
CNN. N.p, 14 October 2014. Web. 23 October 2014.
3. Barnes, Robert. "Supreme Court Blocks Texas Abortion Law." The Washington
Post. N.p., 15 Oct. 2014. Web. 29 Oct. 2014. Ibid.
5. Roe V. Wade. United States Supreme Court. 22 Jan. 1973. No. 2-209. Web.
< http://www.law.cornell.edu/supremecourt/text/410/113 Ibid.
7. Mears, Bill. “Supreme Court Allows Texas Abortion Clinics to Reopen for Now.”
CNN. N.p, 14 October 2014. Web. 23 October 2014.
8. Barnes, Robert. "Supreme Court Blocks Texas Abortion Law." The Washington
Post. N.p., 15 Oct. 2014. Web. 29 Oct. 2014. Ibid.
10. Liptack, Adam. "Supreme Court Allows Texas Abortion Clinics to Stay
Open." New York Times. N.p., 14 Oct. 2014. Web. 29 Oct. 2014.