After Roe: The New Wave of Abortion Restrictions

Ann Richards, the late Democratic governor of Texas, once stated, “We’re not going to have the America that we want until we elect leaders who are going to tell the truth – not most days, but every day.”

For Ms. Richards’ daughter, Planned Parenthood President Cecile Richards, September 29th was not a good day for truth in American politics. In a Congressional hearing on Planned Parenthood’s medical services and fetal tissue donations, Republican lawmakers barraged Cecile Richards with a series of hostile questions in a session that many Democrats argued was intended more for political grandstanding than factual inquiry (it didn’t help that the hearing’s actual title was “Examining the Horrific Abortion Practices at the Nation’s Largest Abortion Provider”). The most memorable moment of the hearing, however, came when Representative Jason Chaffetz of Utah presented a chart comparing Planned Parenthood’s cancer screening and prevention services with its abortion services. Lacking a y-axis and visually contorting its data, Chaffetz’s chart – made by the pro-life group Americans United for Life – contended that Planned Parenthood’s 327,000 abortion-related services provided in 2013 were somehow numerically greater than their 935,573 cancer screenings in the same year. Following the hearing, the chart was roundly criticized by media outlets as intentionally misleading and rated by Politifact as a “Pants on Fire” claim. Public reaction seemed to paraphrase a classic Mark Twain quote: “There are lies, damned lies, and statistics.”

Ann Richards, former Governor of Texas (source: Wikimedia Commons).
Ann Richards, former Governor of Texas (source: Wikimedia Commons).

While many may be focused on the national debate over Planned Parenthood’s federal funding, when it comes to abortion services, the battle for abortion rights is being fought less on Capitol Hill and more in clinics across the country. In the decades since Roe v. Wade, access to abortion services in certain states has grown increasingly restrictive. By passing strategic abortion regulations, state legislatures across the country have succeeded in limiting or closing abortion clinics and the services they provide. Since the 1970s, political battles over access to abortion have mainly been waged within states between lawmakers who seek to regulate access to abortion services and activists who charge that these regulations infringe on the Constitutional right established in Roe v. Wade. As abortion politics have localized to become mainly state issues, pro-life extremism has surged and become a mainstay in state politics, resulting in an ever-changing and shrinking map of state abortion clinics. As Molly Redden of Mother Jones recently put it, “The war on women is over- and women lost.”

The reversal of women’s access to abortion services has its origins in the early 1990s, when a combination of Supreme Court rulings and national political movements laid the groundwork for states to take more control in setting abortion policy. In the 1992 case of Planned Parenthood v. Casey, the Supreme Court ruled that while the Constitution guaranteed a right to abortion, states may regulate abortion policy so long as regulations do not impose an “undue burden” for women seeking a termination of pregnancy. While pro-choice activists celebrated the ruling for striking down challenged elements of Pennsylvania’s state abortion restrictions, Planned Parenthood v. Casey devolved power to states and raised the threshold of proof for what constitutes an unduly restrictive law. In effect, the ruling opened the door for a flurry of state restrictions that, while creating roadblocks for women seeking an abortion, cannot be categorized as imposing an “undue burden”. At around the same time, UC San Diego Professor of Political Science Thad Kousser argues, Republican victories in the 1994 midterm elections and the Newt Gingrich-led “Republican Revolution” began a “devolution revolution” in American politics, wherein states gained greater policy-making power at the expense of the power of the national government. By limiting the federal government’s prominence and influence, the “devolution revolution” gave state legislatures more power than ever before to craft abortion policy and regulate clinics.

Pro-choice activists protest outside a pro-life event organized by Focus on the Family in St. Paul, MN (source: Wikimedia Commons).
Pro-choice activists protest outside a pro-life event organized by Focus on the Family in St. Paul, MN (source: Wikimedia Commons).

As the legal framework on abortion politics changed, so too did the nature and behavior of pro-life social movements. Since the 1990s, several pro-life groups have grown increasingly hostile and violent . From the 1996 bombing of Atlanta’s Centennial Olympic Park by an anti-abortion radical to the 2009 assassination of pro-choice advocate George Tiller, anti-abortion violence has remained a serious threat to abortion clinics and their patients since the 1990s. Although violent extremists are a minority of pro-life activists, tactics employed by mainstream pro-life activists have also grown more hostile. At clinics across the country, pro-life activists verbally accost and shame patients at abortion clinics. Ilyse Hogue of MSNBC observes that “groups of screaming protesters terrorize women outside of clinics” while clinic employees are often stalked by political opponents and receive daily threats, thus cultivating a climate of fear and hostility around many state clinics. More recently, the Supreme Court case McCullen v. Coakley upheld activists’ right to protest near abortion clinics.

In isolated political spheres, these two factors – policy devolution and increased pro-life activism – should not constitute a restrictive trend in abortion policy by themselves, yet the growing interaction between state legislatures and right-wing political movements has dramatically changed how state abortion policy is written. Since 2010, far-right political movements like the Tea Party have surged to prominence and social conservatives have gained far more influence in the Republican Party than ever before. For the GOP, anti-abortion rhetoric and policy is no longer limited to fringe wings of the party – rather, it has become part of the mainstream party platform. As a result, state legislatures – the majority of which are Republican-controlled – have increasingly restricted access to abortion clinics. These strategic laws have taken the form of mandatory waiting periods before getting an abortion, mandatory in-person counseling, 20-week abortion bans, required parental consent for minors seeking an abortion, requirements that clinics meet surgical center and hospital admitting privileges criteria, and mandatory ultrasounds for first-trimester abortions. Supporters of laws like the admitting privileges regulation argue such regulations are necessary to protect maternal health and ensure safe and high-quality care, but opponents contend they are unnecessary in the first place. The ultrasound requirement, for example, has been criticized by medical professionals like the American College of Physicians and the Pennsylvania Medical Society as being medically unnecessary. Similarly, the American Medical Association (AMA) and American Congress of Obstetricians and Gynecolegists (ACOG) have noted that admitting privileges laws have “simply no medical basis” and “are not necessary to the provision of safe abortion care.” Abortion rights activists therein have argued that recent state abortion regulations are clandestine attempts to dissuade abortions and close clinics that cannot adjust to unnecessary requirements. Nonetheless, states with Tea Party-aligned Governors, like Wisconsin’s Scott Walker and Florida’s Rick Scott, have implemented many of these regulations in recent years.

A pro-life activist protests outside a Planned Parenthood clinic (source: Wikimedia Commons).
A pro-life activist protests outside a Planned Parenthood clinic (source: Wikimedia Commons).

The effect of this new wave of restrictions has been devastating for the pro-choice movement. The Guttmacher Institute reports that more state abortion restrictions – nearly 200 in total – have been passed from 2011 to 2013 than in the entire previous decade while the number of states “hostile” to abortion rights – meaning they have four or more abortion restrictions in effect – surged to 37. As a result of tightened restrictions, many clinics have had to limit services or shut down. Bloomberg News notes that across the country, at least 58 abortion clinics – or 1 in 10 – have shut down or limited services since 2011 due to new regulations. In Texas, a 2013 law requiring abortion facilities to meet the standards for ambulatory surgical centers and mandate clinicians have hospital admitting privileges resulted in the forced closing of half of the state’s 40 clinics. In Virginia, a similar admitting-privileges law resulted in two of the state’s busiest facilities closing in 2013. The effect of a recent Arizona law banning nurse practitioners from providing abortions has resulted in the number of that state’s clinics dropping from 19 to seven. Perhaps the most dramatic example of this new wave of restrictions is found in Mississippi, where an admitting-privileges law has closed all but one clinic in the state.

New abortion regulations have also transformed the national map of clinics. Not only must many women now jump through several hoops, such as a waiting period or an ultrasound, before getting medical treatment, but many are now left without a nearby clinic at all. This imposes serious transaction and transportation costs for patients who, in areas like Tupelo, MS, must travel across state lines to arrive at the nearest abortion provider. In parts of Arizona, notes Cynde Cerf of Planned Parenthood, access to clinics within the state that are outside the areas of Phoenix and Tucson is nonexistent. Against the pro-life movement’s multifaceted strategy of public protest, shaming of clinic patients, violence, and now state lawmaking, pro-choice advocates are losing the battle for women’s reproductive rights as more states seek to pass restrictive regulations.

While women’s health activists have opposed these recent restrictive abortion laws, a lack of Supreme Court review on the issue has deferred authority to the Casey precedent and state legislatures. Partisan gerrymandering and redistricting in states like Wisconsin have given a further edge to Republican-controlled legislatures that seek to preserve the state-level electoral patterns behind this new wave of abortion restrictions, making it difficult for pro-choice activists to reverse this political and legislative tide.

Still, hope remains for abortion rights activists seeking to realize Roe v. Wade’s legacy. Despite the unprecedented increase in restrictive abortion laws, pro-choice groups in Texas, Oklahoma, Louisiana, Wisconsin, and other states have filed state and federal judicial challenges to state regulations that infringe upon access to abortion services. The result, at times, has been the successful overturning of state restrictions on abortion or temporary stays on closing clinics while cases make their way through the appeals process. This strategy of legal challenges has increased the chance that higher courts, or perhaps even the Supreme Court, will review the recent trend in state laws regulating abortion.

Pro-choice activists protest Virginia's transvaginal ultrasound bill at the state capitol (source: Wikimedia Commons).
Pro-choice activists protest Virginia’s transvaginal ultrasound bill at the state capitol (source: Wikimedia Commons).

Furthermore, pro-choice groups like Planned Parenthood retain a vibrant grassroots base of support and can still successfully mobilize pro-choice activists in moments of crisis. In response to the recent Republican-led effort to shut down the government over Planned Parenthood’s federal funding, donations for the pro-choice organization surged and support for Planned Parenthood remained steady. Pro-choice groups won September’s shutdown battle by drawing national attention to the issue of women’s reproductive rights. To reverse the tide of restrictive laws and clinic closings, abortion rights activists must mount similarly effective state-level campaigns across the country.

The status quo may seem dim for abortion rights activists, but the ability of Planned Parenthood to weather recent national controversy can keep hope alive for the pro-choice movement.

As Ann Richards once put it, “The here and now is all we have, and if we play it right, it’s all we’ll need”.