WWS Reacts: Restricting Abortions Across America

May 24 2019
By B. Rose Kelly
Source Woodrow Wilson School

Reproductive rights are now front and center in the 2020 campaign, as a number of states recently have tried to restrict or regulate abortions in some way.

We discussed the wave of abortion bills being passed with Elizabeth M. Armstrong, associate professor of sociology and public affairs at Princeton University’s Woodrow Wilson School of Public and International Affairs.

Armstrong studies reproduction, public health, the history and sociology of medicine, risk in obstetrics, and medical ethics.

Q. Eight states have passed bills this year that narrow the window for abortion. What's your reaction to this? Why now?

Armstrong: These state bills are generating a lot of attention right now, as they should. Since January, 10 states have signed into law 17 bills that regulate abortion in some way. It seems as if the movement to restrict abortion access has suddenly picked up a lot of momentum. But the force behind that momentum has been building for some time. This assault on legal abortion is not sudden; state legislative activity around abortion has been ramping up steadily over the last decade. In the years between 2001 and 2010, for example, a total of 189 state laws restricting abortion were enacted. Then, between 2011 and 2013, 205 abortion restrictions were enacted at the state level. This escalation has continued. In 2016, 50 state restrictions were enacted; in 2017, another 63 bills were passed. More bills have been introduced, more of these have passed, and more than ever have been signed into law. In the last eight years alone, 424 laws restricting abortion access have been enacted at the state level. Those 424 bills represent more than a third of all the laws enacted since the Roe v. Wade case in 1973. Since the beginning of this year alone, more than 350 bills aiming to affect some aspect of reproductive health have been introduced in state legislatures. The 17 laws that have passed so far all aim to prohibit abortion along some dimension: either after a certain gestational age, or altogether, as in Alabama, or for certain reasons, such as sex selection or in the case of a genetic anomaly, or prohibiting certain medical procedures or techniques to be used for abortion. 

Two things make this most recent wave of state legislation feel different. First, these laws are a full-bore assault on the very premise of Roe. They blatantly disregard the parameters of abortion jurisprudence, as determined by a long series of Supreme Court decisions beginning with Roe v. Wade in 1973. In short, since Roe, abortion has been legal until viability, which is currently around 24 to 28 weeks gestation; states are permitted to enact restrictions on abortion before this point so long as those restrictions do not constitute “an undue burden” on women, a standard that was established in the 1992 Planned Parenthood v. Casey decision and clarified in the 2016 Whole Woman’s Health v. Hellerstedt decision. Whether we consider Alabama’s total ban on abortion, Utah’s ban on abortions after 18 weeks, or the so-called “heartbeat bills,” not a single one of these is enforceable under the standards that have been established by the Supreme Court.

Second, not only do these most recent state laws violate these principals, they are unusually harsh, threatening women and doctors with criminal prosecution, long jail sentences, even the death penalty. Some of the laws contain language suggesting that women could be prosecuted even for spontaneous miscarriages! In part because of their severity, they are commanding national media attention in a way that abortion regulation has not done for a long time. But these bills are not occurring out of the blue. The first heartbeat bill, for example, was introduced in Ohio in 2011, so these laws are not new. What is new is the success that anti-abortion activists are having in state legislatures. That success — and the willingness to push hard against existing abortion jurisprudence with increasingly extreme and burdensome regulations — is the result of decades of anti-abortion activism and organized efforts on multiple fronts, crucially, the appointment of conservative anti-choice judges in state and appellate courts, up to and including the Supreme Court. The architects of these laws clearly hope to trigger judicial review; the laws are designed to draw lawsuits challenging their constitutionality and provide the Supreme Court an opportunity to scale back — or dismantle — the protections afforded by Roe and Casey. 

Q. Legislation varies state-by-state, but, in general, what effect does this legislation have on women's reproductive rights?

Armstrong: There are three ways to think about the effect these laws have on women’s reproductive rights. First and most obviously, these laws threaten to severely restrict women’s rights. I say “threaten to restrict” because none of these recent laws is in effect yet. It is very important to say here — women in all 50 states need to know — that abortion is still legal everywhere in the United States, including Alabama. None of the recent bills signed into law go into force immediately. Moreover, it’s likely that every one of these laws will face injunctions.  All the recent bills are clearly unconstitutional, so courts are likely to enjoin the laws while they are adjudicated. It’s likely that it will be years before these laws go into effect, if they ever do so. 

Second, and in many ways I think this may be one of the most important consequences of these laws even when enjoined, they have a chilling effect on women. Women in the United States today are not only under threat of losing the legal right to abortion, they are already losing what we might think of as the moral right to autonomy and self-determination, principles that have long been enshrined in our nation’s values and commitments. As long as we, as a society, are debating whether women can control their own fertility, we are treating them as less than full citizens.  

Regardless of whether Roe ultimately stands or not, these laws harm women in material as well as moral ways. So many of the tremendous gains that American women have made in educational attainment, in labor force participation, in the political arena, depend on their ability to determine whether and when to have children. Legal abortion, along with a range of accessible and affordable contraceptive options, is a critical component in women’s full participation in social life and in their individual health and wellbeing.  

When societies restrict women’s access to legal, safe abortion, they also restrict the horizon of possibility for women. Even today, if we look across a range of laws regulating abortion currently in force, more than half (29) of all states are hostile or extremely hostile to abortion rights. Six states — Kentucky, Mississippi, Missouri, North Dakota, South Dakota, and West Virginia — have only a single abortion clinic. And 90% of all U.S. counties lack an abortion provider; about 4 in 10 women of reproductive age live in those counties. A recent study estimated that millions of American women live more than 100 miles from the nearest abortion provider. Even as Roe has remained the law of the land, access to abortion has contracted. If we look back to 2000, fewer than one in ten (7%) women of reproductive age lived in hostile states. Today, more than half (58%) of all U.S. women of reproductive age live in hostile states.

Third, on the flip side, there is no question that these extreme laws are galvanizing attention from a wide swath of the public and in particularly from a younger generation. Women and their allies are protesting at state capitols. Social media is lighting up with discussion of these laws and of the broader issues at stake here. Memes and comments — some humorous, some angry, often biting — are showing up on Instagram and Twitter, where they are being widely shared and retweeted. Girls as young as high school are mobilizing to learn about the issues, to educate their peers, and to fight back. Here at Princeton, I see more and more students who want to make the fight for reproductive justice their life’s mission. While the momentum appears to be on the side of restricting access to abortion, there is no doubt that these recent bills are also galvanizing reproductive justice advocates. I’d argue that these bills are also awakening a new younger generation to the threats to women’s autonomy and civil liberties that restricting access to abortion and contraception represent. 

Q. Technical question, but can a woman go out of state to receive an abortion? What are the options for someone who is in a state with restricted abortion laws?

Armstrong: This is a great question and one that many people may wonder about. We know that women do travel — often great distances — to receive abortion care. Many women are forced to travel even without crossing a state border simply because in many states, there are so few providers. We also know that laws making abortions harder to get don’t necessarily reduce the number of abortions. In pioneering work over two decades ago, a WWS doctoral dissertation found that when states implemented parental consent or notification laws around adolescent abortion, there were fewer adolescent abortions in states with these parental involvement laws, but the number of abortions among teens went up in neighboring states. While to date there has been nothing in state laws to prohibit women from crossing state lines to receive abortion care, the need to travel to receive an abortion can drastically raise the costs for women — requiring more time away from work, school, and family, entailing greater financial costs, and potentially greater stress. Another consequence of the inaccessibility of abortion is that it may push women to receive abortions at later gestational ages, which makes the procedure more complicated and more expensive.

The Georgia law is one of the first that actually threatens to prosecute women who travel out of state to obtain an abortion. Yet another example of the increasingly punitive and threatening nature of these most recent laws. 

Q. Do you feel that the legislation seems to be deepening a partisan divide?

Armstrong: Health and health care should not be partisan issues; neither should reproductive justice, but the recent state bills have been highly partisan. The recent laws have all passed in states where both legislature and the governor’s office are red. Indeed, Republican control over state legislatures and governors’ offices, beginning with the Tea Party movement nearly a decade ago, has facilitated the passage of these most recent laws as well as a host of earlier ones. The states that restrict abortion rights are concentrated in the middle of the country and in the South. Along both coasts, more liberal abortion laws prevail. The patterns map pretty well on to the familiar red and blue maps we all know from recent elections. 

Q. Do you suspect more states will follow suit as we inch closer to the 2020 election?

Armstrong: Abortion is now front and center in 2020 campaigns. Advocates and voters on both sides of the issue are energized and I expect a lot of mobilization around this issue, which will be deeply divisive. Some Democratic candidates for the presidential nomination are already incorporating a so-called litmus test into their campaign promises — notably Sen. Kirsten Gillibrand (D-N.Y.), who has pledged to appoint only judges who promise to uphold Roe. Pete Buttigieg and Sen. Cory Booker (D-N.J.) have also talked about prioritizing the appointment of judges who will uphold constitutional protections for abortion. I think voters will look to candidates’ positions on abortion to make decisions in the voting booth.

Q. Do you anticipate the Supreme Court accepting a case, and if so, which one is most likely, or would it combine cases? What do you anticipate the outcome would be?

Armstrong: I think even seasoned court watchers are unsure how this will play out. The first question is whether any of the recent bills will make it to SCOTUS and then whether SCOTUS will agree to hear that case or those cases. If the Supreme Court does take on an abortion case, there is a clear conservative majority since the confirmation of Justice Kavanaugh last fall.  However, at least one of those, Chief Justice Roberts, has affirmed the importance of precedent in the Court’s deliberations.

Q. As some states are gearing up to challenge Roe and restrict abortion, others are trying to get laws on the state books fast — protecting the right. Where does this stand now in terms of how many/which states are working to update abortion laws?

Armstrong: There is one bright spot in the recent legislative activity. Last year, the number of state bills to support reproductive health outnumbered the number of restrictive laws that were enacted! Massachusetts, Washington, and Louisiana either repealed long-standing abortion restrictions or enacted laws that increase access to abortion. Earlier this year, New York state passed a law affirming a “fundamental right” to abortion and explicitly protecting access to abortion at later gestational dates. Vermont and Rhode Island are considering similar legislation.  Meanwhile, Nevada and New Mexico are working to repeal old restrictions that have been on the books for decades. If Roe were to be overturned, 10 states currently have laws on the books that would protect the right to abortion. On the other hand, seven states have so-called “trigger laws” that would immediately ban all or nearly all abortions if Roe were to be overturned. Another nine states retain abortion bans that pre-date Roe, but that could be enforced in the absence of Roe.

WWS Reacts is a series of interviews with Woodrow Wilson School experts addressing current events. These are the opinions of the faculty and do not reflect or represent Princeton University or the Woodrow Wilson School.