by Savanna Fox

In late 1969 a young woman in Texas was pregnant, and didn’t want to be. She wanted to get an abortion, but at this time, abortion was illegal in Texas. She talked to some attorneys, and they filed a case challenging the laws that made abortion illegal. This woman was known in the court records as Jane Roe, and her case made it all the way to the Supreme Court.

In 1973 the United States Supreme Court made a decision on Jane Roe’s case that has affected the lives of many people in the U.S. They decided that pregnant people have the right to legally seek abortion. The case was celebrated by many women who thought it would mean a future of safe, legal abortion for themselves and future generations. However, the decision has also allowed some states to implement restrictive abortion laws which prevent the same women from successfully getting a legal abortion today. These restrictions, which ultimately delay and dissuade people seeking a timely and safe abortion, are reminiscent of the years before Roe v. Wade was decided.

In the years just before Roe v. Wade, around 200,000 to 1.2 million women had illegal abortions each year. Illegal abortions could be highly dangerous since they were not regulated and people providing abortions didn’t have to prove their medical qualifications. In addition many illegal abortions were self-induced. During this same time, roughly 200 women died per year due to illegal abortions. It is hard to get accurate numbers, because things that are illegal are often underreported. To give these numbers some context, in 2012, the CDC reported only 4 deaths associated with legal abortion for the entire year.

Court decisions are complicated, so let’s break Roe v. Wade down. The Supreme Court determined that abortion access was protected by four amendments in the U.S. constitution. The Court decided that states are not able to ban or restrict abortions in the first trimester, and that doing so violates the first, fourth, ninth and fourteenth amendments in the U.S. constitution. The 1973 decision thus held that the right to choose to keep, or terminate, a pregnancy during the first trimester was as fundamental a right as an individuals’ freedom of religion and freedom of speech, and as such it was protected from government restrictions under “strict scrutiny” requirements.

During the decision, the Supreme Court limited a state’s ability to impose abortion restrictions during the first trimester. The court also acknowledged individual states’ ability to protect the potential life of fetuses, but required states to justify abortion restrictions by proving it has a “compelling interest”.

Despite Roe v Wade, officials in many states have successfully prevented abortion by passing restrictive legislation in the years since. Why is it that individual states are able to make access to safe and legal abortion so difficult to come by?

As part of their decision, the Supreme Court said that if states had a “compelling interest” in preventing abortions in the second trimester, they could pass laws restricting them. States have taken this and run with it to make abortion more difficult to obtain, and the Supreme Court has reaffirmed and expanded states’ rights to do so.

How have States circumvented abortion protections?*

  • 38 states, including Texas, require that an abortion must be performed by a licensed physician.
  • 19 states require that some abortions must be performed in a hospital.
  • 19 states require a second physician to participate in some abortions.
  • 43 states, including Texas, prohibit abortion except in cases of life or health endangerment after a certain number of weeks (in Texas, it’s 20 weeks).
  • 19 states ban “partial-birth” abortion.
  • 33 states, including Texas, ban public funding of abortion except in cases of life endangerment, rape or incest.
  • 11 states have limited private insurance coverage of abortions.
  • 45 states, including Texas, allow physicians to refuse to participate in abortions.
  • 16 states, including Texas, mandate counseling information on specific topics.
  • 27 states, including Texas require a waiting period after counseling.
  • 37 states, including Texas, require parental involvement for minors.

*Data from the Guttmacher Institute

In 1979, the Supreme Court held that states were able to restrict a minor’s ability to access safe and legal abortion by requiring minors to get parental consent or to notify a parent. Currently, 37 states, including Texas, require minors to obtain parental consent or notify a parent before getting an abortion. In 1977, Congress further gutted the protections offered by Roe v. Wade by passing the Hyde Amendment, a bill which prohibits federal Medicaid dollars from covering abortions, and in 1980, the Supreme Court declared the legislation in the Hyde Amendment constitutional. Individual states are still allowed to cover abortions with their own state dollars, but many states, including Texas, choose not to. And in 1992, during the legal battle between Planned Parenthood of Pennsylvania v. Casey, the Supreme Court decided that the right to abortion was no longer protected under “strict scrutiny” and instead was protected under the lesser legal requirement of “undue burden”. During this same time, the Supreme Court dismantled other key abortion protections, including protections of women seeking abortion during the first trimester. This allowed states to implement required ultrasound provisions, state-mandated counseling and other restrictive elements.

In 1973 abortion access during the first trimester was a fundamental right and protected as such under the strict scrutiny requirement, meaning that states would have had to show significant and good reason for placing abortion restriction barriers on women. Now, under “undue burden”, states can, and have, imposed more restrictive regulations and laws to prevent abortion. These measures are constitutional, so long as they do not pose a significant burden on women seeking abortion. Whether or not requirements like waiting periods and counseling that contradicts medical evidence are undue burdens is still up to debate – no case challenging these requirements has reached the Supreme Court yet.

How do courts decide what is significant? This is exactly the problem with undue burden: it is largely subjective and ill-defined.

Despite all of these state restrictions, abortion is still legal, though it may be hard to come by, particularly for minors, people of color, people who live in rural areas, and low-income people.

Our current presidential administration has said that they want to overturn Roe v. Wade. It is difficult to know exactly what would happen if Roe v. Wade were completely overturned. Individual states would have the discretion to implement abortion restrictions as they see fit. Some states would continue to support legal abortion, while others would not. Given Texas’ track record it is safe to assume the state would implement stricter abortion laws, or make abortion illegal altogether. If Roe v. Wade were overturned, and states did indeed impose stricter medical regulations, making it harder for women to access safe and legal abortion, then we might return to pre- Roe v. Wade abortion related deaths and self-induced abortions.

The good news? Advocacy groups and abortion providers are constantly fighting against restrictive abortion laws. These people help ensure that we do not go back to pre-Roe v. Wade abortion related deaths. Just last summer, the Supreme Court reaffirmed the right to an abortion when it struck down key aspects of Texas House Bill 2 (HB2). The law would have required all abortions to be performed in ambulatory surgical centers (ASCs). Such standards for abortion clinics are unnecessary, as abortion is an out-patient, low-risk procedure. Under HB2, a patient seeking a medication abortion would have had to go to a hospital-like facility with stretchers and defibrillators just to take a pill. The Supreme Court also determined that the requirements mandating physicians to have hospital admitting privileges posed an undue burden on people seeking an abortion. This was a major win, which better defined “undue burden” and put the pressure on states to have clear evidence of their compelling interest before passing abortion restrictions. Just last week, Planned Parenthood, the Center for Reproductive Rights, and Whole Women’s Health filed a lawsuit against Texas regarding Senate Bill 8 (SB8), which would make dilation and evacuation, the most common second trimester abortion procedure, illegal, except in the case of an already deceased fetus. Based on the Whole Woman’s Health Supreme Court decision last summer, we are optimistic about the current lawsuit challenging SB8.

It often feels like legislation regarding abortion and contraceptive coverage happen in an arena that the average citizen cannot participate in, and sometimes that is true, especially if you aren’t yet of age to vote. However, it’s important to remember that laws have to be voted on by your representatives. Even if you can’t yet vote, you can still demonstrate your support for reproductive rights by calling or writing to your representative, attending a lobby day at the Capitol during the legislative session, and talking to your friends about why supporting abortion access is important to you.