By Michele Bastacky
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 of Griswold
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.
No comments:
Post a Comment