As we approach the 48thAnniversary of Roe v. Wade, I am worried that women across our country are at greater risk than ever for losing the protections afforded by the 1973 landmark decision. Roe granted women a fundamental right to choose whether or not to have abortions without excessive government restrictions based on a right of privacy. But here we are in 2021. In the last several years, women have faced hundreds of restrictions on their fundamental right. And now we have a Supreme Court that is poised to overturn Roe, permitting the states to decide.
Some states want to criminalize abortion or ban abortions after only six weeks – when most women do not even know they are pregnant. Other states have legislation to restrict women from getting an abortion after 15 or 20 weeks – which would prevent a pregnant women from getting an amniocentesis test, denying her health information about her fetus and denying her the option to choose to terminate the pregnancy.
There are requirements that doctors provide false and misleading information, or require ultrasounds to be viewed unnecessarily. There is legislation banning the most common and safe procedure for second trimester abortions and even laws requiring fetal tissue to be buried or cremated.
Some states are waiting for the opportunity to implement their restrictions, other states have had challenges to these harmful laws at the appellate phase – some headed to the Supreme Court. With the untimely passing of Justice Ruth Bader Ginsberg and the appointment of Justice Amy Coney Barrett, we have a conservative Court waiting for the perfect case. This is very concerning and I think we need to brace ourselves for what is coming.
The last two abortion cases decided by the Supreme Court (Whole Women’s Health in 2016, involving Texas laws requiring unreasonable building standards and requiring abortion providers to have hospital admitting privileges; and June Medical Services in 2020, involving Louisiana’s law that mirrored the Texas law requiring hospital-admission requirements) were decided in favor of protecting women from undue burdens when seeking legal abortions, specifically because there were no “medical benefits” to these laws.
Before the Texas laws were struck down, they had been implemented and we witnessed devastating consequences. About half of the facilities providing abortion care were closed requiring women to travel hundreds of miles, cross state lines, and wait two to three weeks to get an abortion, if they could at all.
In the Louisiana case, Justice Roberts conceded that the Louisiana law mirrored the Texas law so he was compelled to follow precedent and strike it down. But while doing so he whittled down the holding of the Texas case by disavowing the “medical benefit” standard, making it easier on the Court to uphold restrictions that have no medical benefit to the woman in the future.
Restrictions on abortion result in significant barriers for women, disproportionately impacting low-income and minority communities who already face systemic barriers to quality health care. If Roe is further dismantled or overturned, legal abortion is predicted to become illegal in 22 states, much of the American South and Midwest. Clinics may open on state borders and some people may order abortion pills by mail (however, on January 12, 2021, SCOTUS reversed a decision that allowed women, during the COVID pandemic, to get medication abortion pills through the mail) but, most concerning are women who will seek illegal, unsafe abortions.
What about California? Here we have a State Constitutional protection in addition to California’s Freedom of Choice Act of 2002 which says, “The Legislature finds and declares that… Every woman has the fundamental right to choose to bear a child or to choose to obtain an abortion…the state shall not deny or interfere with a woman’s fundamental right…” California has also increased access to abortion by allowing nurse practitioners, physician assistants and nurse-midwives to provide this critical and safe service.
My hope is that health care providers in California and other states like ours can help women living in these restrictive states get access to abortion. This is a complex endeavor because women will need transportation, accommodations, perhaps day-care and days off from work to travel. But we can do this. We also need to elect Governors who won’t sign dreadful laws restricting abortions. And get progressive federal court judges appointed to stop these harmful laws. Of course we need a more balanced Supreme Court but in the meantime, we need to figure out how every woman can get access to an abortion regardless of where she lives.