One in 3 women in the U.S. will have at least 1 abortion before the age of 45.
That statistic, from the Center for Reproductive Rights, can be attributed to the 1973 Supreme Court ruling on Roe v. Wade, which legalized abortion for all women in the U.S.
Yet since that landmark ruling, anti-abortion groups have been working diligently. In the absence of an outright reversal on Roe, they’ve been chipping away bit by bit at the ability of women to access abortion, at both the federal and the state levels. And the chips are adding up, particularly over the last few years.
As a result of these efforts, abortion is inaccessible to millions of American women, primarily low-income women. And with the results of the recent midterm elections, it looks as though abortion might become even more inaccessible.
On that note, some experts say they see signs indicating we might be entering a new era in the struggle for abortion rights.
For the first time since 1995, 3 consecutive Gallup Polls on abortion have found that more Americans, 47 percent, identify as anti-abortion, while only 45 percent support abortion rights. The May 14, 2010 Gallup Poll concluded that although the margin is small, a real shift is taking place in public opinion on this issue.
However, it’s not just a shift in public opinion. States are placing increasingly restrictive limitations on access to abortion, including here in Ariz., that has some abortion rights advocates worried.
“I do think there is a concern. The right wing is becoming more right wing, and it’s harder to find a good middle ground,” Lisa Pearlstein, Health and Reproductive Rights Fellow at the National Women’s Law Center said.
At least 5 of our newly elected state representatives believe life begins at conception. They want to see abortion criminalized, and would make no exceptions, even in cases of rape and incest. Protecting the life of the mother doesn’t seem to be a dependable compromise on this issue anymore, either.
State representative-elects Frank Guinta (R-N.H.), Francisco Canseco (R-Tex.), Steve Chabot (R-Ohio), Mike Fitzpatrick (R-Pa.), and Todd Young (R-Ind.) wouldn’t make exceptions for abortion even if the life of the mother were in danger.
This is not just rhetoric. More restrictive beliefs on abortion are being woven into legislation that limit access to abortion at both the federal and state levels.
Part of President Barack Obama’s health care plan, the Patient Protection and Affordable Care Act, which passed earlier this year, will require each state to set up an insurance exchange by 2014. The uninsured will be required to purchase insurance from them.
Each individual state will be responsible for setting up the exchanges, and will determine what gets covered and how it will be funded.
“One of the biggest debates right now is whether abortion will be covered under these exchanges,” Pearlstein said.
Under the Nelson Amendment, Pearlstein says that, “each state can pass a law that prohibits abortion coverage in the entire exchange. These laws can’t be challenged. The Affordable Care Act specifically says that states can do this.”
Arizona was the first state to pass such a law. In April, Ariz. Gov. Jan Brewer signed SB 1305, which prohibits the use of public funds to cover abortions, except if the mother’s life is in danger, but not in cases of rape or incest. It will also opt Ariz. out of providing coverage for abortions in the state’s exchange as part of the Patient Protection and Affordable Care Act.
Mississippi, Missouri, Tennessee and Louisiana also passed similar laws. Both the Tenn. and La. laws make no exceptions for rape or incest, or for the health of the mother. Pearlstein said she expects to see many more states passing similar laws in 2011.
Yet, anti-abortion advocates here in Ariz. were pleased with SB 1305. “It’s a good start in prohibiting our tax dollars from being used to fund abortions,” said Jinny Perron, former president of Arizona Right to Life. Calling abortion “America’s Holocaust,” Perron added that although she was pleased with the legislation, the best scenario would be “legislation that would eliminate the legality of abortion altogether.”
This raises an interesting question concerning the likelihood of criminalizing abortion across the board. If Roe were overturned, jurisdiction on abortion would return to the state. However, there’s currently no consensus on when Roe could be overturned, and if it were, what might happen on a state-by-state basis.
“Some people think that if Roe were overturned, there would be slow reinstatement of abortion rights, state by state. I think the current political climate makes that unlikely. Rather, there would again be some states that protected the right and others that did not. So women would again have to travel to get these services,” said Toni Massaro, riepe chair in constitutional law at the James E. Rogers College of Law at the University of Arizona.
Yet Massaro also pointed out that Roe has been narrowed in recent years, and most experts now look to Gonzales v. Carhart to reflect the current state of the law on abortion. In 2007, the Supreme Court ruled 5-4 to outlaw what some call the “partial-birth abortion” procedure. The ruling made an exception to protect the life of the mother, but not the health of the mother.
According to a May, 2007 article in the New England Journal of Medicine, this was the first time the Supreme Court permitted congressional judgment to replace medical judgment. Prior to that, the Court upheld the importance of non-interference in physicians’ medical judgments in protecting a patient’s health. The significance of this ruling is being felt at the state level.
Massaro says this is because, “as the court retreats, it gives the states more legislative leeway to impose restrictions on reproductive rights.”
This has emboldened those pushing for tougher anti-abortion legislation. In the coming years Massaro says, “we can expect to see legislation designed to test, indeed to exceed, the existing limits on state legislative power to regulate abortion.”
“There is no doubt that the political pressure to write increasingly strict laws regarding the woman’s right to choose is a major development,” Massaro said.
This does indeed seem to be a major development. Anti-abortion advocates within the political sphere have traditionally only been able to restrict the use of federal funds for abortions. The Hyde Amendment, passed in 1976, accomplished this.
Former U.S. Rep. Henry Hyde (R-IL) sponsored the budget amendment, which prohibited Medicaid from covering abortions. Before the Hyde Amendment, Medicaid paid for almost one-third, approximately 300,000, of abortions annually.
This result of the Hyde Amendment is that the most vulnerable, low-income women, often can’t access abortion because they can’t afford to pay out of pocket for abortion services. The Guttmacher Institute estimates that 18 – 35 percent of women who would have had an abortion carried their pregnancies to term after the Hyde Amendment cut off federal funding for abortions.
Additionally, the Hyde Amendment now also prohibits coverage of abortion in the military’s TRICARE program, the Federal Employees Health Benefits Program, federal prisons, Indian Health Service, the Peace Corps, and the Children’s Health Insurance Program. This leaves millions more American women to fend for themselves if they want or need an abortion.
The original text of the Hyde Amendment made no exceptions for abortion. However abortion rights advocates challenged the amendment, and were able to include exceptions for cases of rape, incest or to protect the life of the mother. This has generally been the acceptable compromise, but that is changing now, too.
Pearlstein says she sees a shift taking place with states now going after private insurance companies, and not just public funds anymore, to prevent them from covering abortion. Moreover, the traditional exceptions are often not being incorporated into state-level legislation. “That’s what’s new and what’s really scary right now,” Pearlstein said.
Additionally, the numbers of restrictive laws states are passing are on the rise. “Every year, quite a few states propose quite a few bills, some 500 – 600 bills per year, that would impact women’s reproductive rights. However, in the past few years, particularly in 2010, we saw quite a few of these bills pass… particularly in Oklahoma, which passed 7 anti choice bills, and also in Nebraska,” Jordan Goldberg, state advocacy council with the Center for Reproductive rights said.
“It’s important to understand that states have enormous power to impact women’s access to reproductive health care,” Goldberg added.
Idaho, Oklahoma, Kentucky, Missouri, and North Dakota have all passed laws banning all insurance coverage of abortion. And Arizona has passed some very restrictive laws in recent years, in addition to SB 1305.
In 2009, Ariz. passed SB 2564. The bill requires a woman to wait at least 24 hours before obtaining an abortion after her first trip to the abortion provider. As a result, women must make multiple trips to the doctor.
The bill also allows a pharmacies, hospitals and health professionals to abstain from providing abortion services and prescribing abortion medication or emergency contraception, if they object to these practices on moral or religious grounds.
The bill also carried other requirements that have since been enjoined, such as having minors present notarized permission slips from their parents in order to obtain an abortion.
It also stated that physicians tell their patients in person that assistance benefits may be available for prenatal care, childbirth and neonatal care, that the father of the child is liable to assist in the support of the child, and that public and private agencies are available to assist a woman during her pregnancy and after childbirth, if she chooses not to have an abortion. This part of the bill has also been enjoined.
Opponents of the bill, such as Planned Parenthood say it further restricts a woman’s ability to access reproductive health care, and that the impact will be most severe among low-income women.
“Eighty-seven percent of counties do not have an abortion provider in Ariz. So, you’ll have to make an appointment, go to the provider, and then come back 24 hours later. You’ll have to stay somewhere, pay for travel expenses, food, etc. By setting up these barriers, the residual effect is that it impacts low-income women more. These kinds of barriers always impact the poor disproportionately, always,” said Michelle Steinberg, director of public policy with Planned Parenthood Arizona.
Yet groups like Arizona Right to Life and the Center for Arizona Policy strongly support such legislation, saying it empowers women to make better choices about reproductive health. These groups also play a significant role in shaping and helping to pass anti-abortion legislation in Ariz.
And according to Perron, these groups feel more empowered now that they have a governor who will sign anti-abortion legislation into law.
So is there any room left for negotiation or compromise on this issue? Would a conflict resolution approach help to navigate this highly polarized and divisive issue? Don’t count on it.
“Opinions on abortion are non-negotiable. They speak the core identity of each person, and to change or compromise one’s position is to change or compromise one’s identity, one’s very personality,” said Brien Hallet, associate professor in Peace and Conflict Resolution at the University of Hawaii.
“Conversion, as Paul on the road to Damascus, is possible and happens, but a sit down negotiation to resolve a difference on this issue is not possible,” Hallett said.
It seems Hallett might be correct. Abortion rights groups, such as the National Women’s Law Center, have vowed to continue the struggle to protect a woman’s right to access abortion. “We are working to ensure that Roe v. Wade is never overturned, and working on a daily basis to ensure that women have access to reproductive healthcare,” Pearlstein said.
As for the other side, there doesn’t seem to be any room to budge there either.
“An anti-abortion agenda should always override choice, because what we are talking about is an act of violence that kills a child and harms a woman. There is no room for compromise. No one has the right to determine who should live and who should die in the name of choice. Abortion is never a solution.” Perron said.