This month, the most restrictive abortion ban in American history, known as the Human Life Protection Act, was passed in Alabama, which has led to a tsunami of similar laws throughout the South and mid-west (see: https://www.nytimes.com/2019/05/15/us/abortion-laws-2019.html?module=inline. Missouri also passed a controversial bill this month that bans abortion beyond 8 weeks (see: https://www.nytimes.com/2019/05/24/us/missouri-abortion-law.html).
The Alabama law makes it a crime for doctors to perform abortions at any stage of a pregnancy unless a woman’s life is threatened or there is a lethal fetal anomaly (see: https://www.al.com/news/2019/05/alabama-abortion-ban-passes-read-the-bill.html). Doctors in Alabama who violate the new law may be imprisoned up to 99 years if convicted, but the woman seeking or having an abortion would not be held criminally liable. Thus, Alabama’s law severely punishes healthcare providers for terminating pregnancies for any reason unless the patient’s life is threatened, effectively forcing them into wrenching ethical dilemmas and moral distress, and upending common practices in fertility treatment care. The law – which is unethical, clearly violating the Principle of Respect for Autonomy — has effectively left reproductive healthcare in the “fetal position” as such a law will make abortion in Alabama in 2020 – in post-Roe America more restrictive than it was in 1920 – in pre-Roe America. The American Society for Reproductive Medicine has made clear that it opposes the Alabama fetal “personhood” law (see: https://www.asrm.org/about-us/media-and-public-affairs/public-affairs/asrm-position-statement-on-personhood-measures/ ).
Even in pre-Roe America, when abortion was illegal by the mid-19th century, it was always legal for physicians to perform a therapeutic abortion. The definition of “therapeutic abortion” was never clearly defined and was always left up to medical judgement to define. Typically, psychological and psychosocial harms from an unwanted pregnancy would be frequently considered. Between the 1920s and late 1930s, women could access safe abortions from a number of physicians in urban centers. Even later in pre-Roe America (1940s-1973) when abortions became more restrictive and cost-prohibitive, hospitals had therapeutic abortion committees that took psychological and psychosocial harms from an unwanted pregnancy into consideration.
In my own state of Kentucky, abortion was effectively banned in March through two bills: one bill prohibits abortion after six weeks (most women don’t discover they are pregnant prior to six weeks); the other bill prohibits abortion if it’s related to results of fetal diagnosis. The ACLU challenged both laws shortly after passage in federal court arguing it is unconstitutional (See: https://www.aclu.org/blog/reproductive-freedom/abortion/kentucky-just-banned-abortion?fbclid=IwAR17UypgeafdMW-_mYCgPxpt1RkalH1y-xGhJJkjgWQgAs7yu99VxnwtPGA). On March 27, 2019 a judge ordered the laws be suspended indefinitely until the court issues a final ruling on whether they are constitutional.
But the Alabama law is the new crystal ball for the future of abortion in the U.S. It’s clear that Roe v. Wade has become irrelevant in a post-Casey America. In the 1992 Casey decision, the court clarified that the states could place restrictions on abortion previability so long as it was not an “undue burden”, which led to Targeted Restrictions for Abortion Providers, or TRAP laws.
It is likely that by 2024, the country will be divided into a reproductive justice system of “free states” and “TRAP states” – where poor women are enslaved by their biology, as well as lack of access to hormonal contraception. We all know that abortion access is never a problem for the wealthy and well-connected who can travel out of state or to another country. Unwanted pregnancy is not just about the consequences of unprotected sex, but of classism and health disparities.
This year is the 50th anniversary of Norma McCorvey’s quest for an abortion in Texas when she was 21, when roughly 10,000 women per year in the U.S. were dying from unsafe abortions. She went to attorneys Linda Coffee and Sarah Weddington, who renamed her “Jane Roe”, and challenged the Dallas District Attorney, Henry Wade. The following year, in 1970, the District court ruled in favor of Roe, stating the Texas law was unconstitutional, but wouldn’t grant an injunction against the law; this eventually led to the Supreme Court decision of Roe v. Wade. By then, Norma had already given birth and put the baby up for adoption. 50 years later we’ve come full circle.