Monday morning, I woke up to the text, “heads up that near the music library there’s people holding up anti-abortion signs.” As if on auto-pilot, I threw on the first t-shirt in my dresser drawer and speed-walked to the underpass with a singular mission: verification. Sure enough, my friend’s warning held true. On the edge of Washington University in St. Louis’s Campus stood ankle-length-denim-skirt-wearing women prodding students, “what do you think about abortion,” flanked by grotesque posters of bright red fetal limbs in petri dishes with slogans like “preborn human” and “vote anti-abortion.” A campaign by the pro-life organization Created Equal, these anti-abortionists passed out flyers catered to the dominant student political discourse. “We are all equal despite our differences,” the front of the flyer says, equating racism and sexism to ageism, which they define as discriminating against “unborn” persons. The back of the flyer adopts a much more aggressive rhetorical approach: a bolded, neon green “#ABORTIONISAGISM” frames gorey graphics of severed heads and blood covered fetus-sized skeletons.(1) Though clearly photoshopped, looking at these images was nauseating.
The arrival of these anti-abortionists seems timed with Judge Brett Kavanaugh’s confirmation to become a Supreme Court justice, which was just two days prior. Since his nomination, coverage of Kavanaugh has been shrouded in concerns regarding the future of reproductive rights and his apparent pro-life agenda. In the only abortion case he heard as a federal judge, for example, Kavanaugh issued a dissent endorsing state-mandated attempts to prevent an undocumented teen, who was detained in an Office of Refugee Resettlement facility, from receiving an abortion.(2) Upon his confirmation to the Supreme Court, pro-life groups celebrated, heralding Kavanaugh as a quasi anti-abortionist posterboy(3), while Planned Parenthood (PP) drafted contingency procedures for in the event that Roe v. Wade (1973) is overturned(4), which many fear it will. Yet, while testifying during his confirmation hearings, Kavanaugh asserted his loyalty to the Court’s past decisions, specifically noting “[ Roe ] is settled as precedent.”(5)
But what exactly is this settled framework to which Kavanaugh claims loyalty? Is it possible that, given the political structures which inform abortion access in America, Kavanaugh can be an anti-abortionist still beholden to the constitutional guarantee of legal abortion? To begin to answer this question, we first must survey the legal decisions which coagulate into current abortion jurisprudence, beginning with Roe v. Wade (1973). The case considers the constitutionality of a Texas law which outlawed abortion in all cases except for when the mother’s life was at risk. The Court held that the statute was unconstitutional, concluding that access to abortion services is a “fundamental right.”(6) The majority opinion, written by Justice Blackmun, explains that this fundamental right is grounded in the constitutionally protected rights to privacy, guaranteed in the Bill of Rights, and liberty, guaranteed in the Fourteenth Amendment. These rights work in tandem to create uninfringeable zones privacy in which citizens have unrestricted freedom of choice. To determine when the state has a sufficiently “compelling interest” to infringe upon the zone of privacy of reproductive autonomy, Blackmun developed a three-tiered framework modelled after the trimester framework of a pregnancy. In the first trimester, for example, the state has no real interest in intervening on behalf of women’s health, so therefore cannot limit access to abortion services. With each trimester, the state is given greater regulatory jurisdiction under the stipulation abortion cannot be restricted when women’s health is at risk.(7) Paramount to Blackmun’s framework is women’s reproductive and bodily autonomy. The Court makes no assumptions regarding the moral permissibility of abortions, instead emphasizing women’s constitutionally guaranteed right to make choices for their bodies and outlining the extenuating circumstances under which the state can infringe.
Though it would seem that following Roe , the debate around abortion would have subsided, the decision remains controversial and hotly contested. In the years following, anti-abortionist legislators ramped up their efforts to regulate abortion to the fullest extent under Roe ’s standard of a guaranteed right. These responsive regulations came to a federal fruition in Planned Parenthood v. Casey (1992). In Casey , the Supreme Court considered the aggregation of hoops the Pennsylvania legislature required women jump through in order to obtain an abortion, which included requiring patients give their informed consent twenty-four hours before receiving the procedure, requiring the consent of parents for minors seeking abortion services, and requiring the consent of husbands for wives seeking abortion services. In answering this, the Court overthrew Blackburn’s three-tiered model for their new framework to determine the constitutionality of abortion regulation: so long as a restriction does not impose an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” it does not infringe on the fundamental right to an abortion. (8) Under this framework, the Court decided that Pennsylvania’s grossly burdensome abortion laws were not “undue,” other than spousal consent, and therefore did not violate Roe .
Casey ’s decision illuminates the fragility of Roe ’s seemingly groundbreaking decision: it serves only to guarantee the theoretical right to an abortion, while procedural obstacles can be erected to prevent women from practically exercising this right. The limitations declared constitutional in Casey provide a bleak foreshadowing for how abortion access functions in the United States. Unlike Roe , which focused on protecting bodily autonomy intertwined with rights to liberty and privacy, Casey is actively invested in determining where the government can infringe on women’s reproductive rights for its own political interests: the objective is shifted from women’s rights to the state’s. The restrictions held up in Casey have the singular goal of obstructing practical access to abortion services so that the procedure itself occurs less. Because the theoretical purpose of state intervention is to protect its citizenry, this decision assumes a moral deviance in obtaining abortions because it constitutionally validates states’ abilities to limit the degree to which they occur; Casey ’s “undue burden” framework assumes the moral validity of decreasing women’s ability to access abortions. Marginalizing women and their bodily autonomy, Casey decisively shifts women from the subject to the actionable object, whereas under Roe women’s (generally) un-infringable reproductive rights was critical. The “undue burden” framework views women as a baby-making vessel existing solely for social, evolutionary purposes and, like all other inanimate vessels, the state can regulate her accordingly: a woman’s personhood and right to life, liberty, and happiness are absolved in the eyes of the law, disregarded in lew of the “unborn” (9) person she carries.
Considering this, it seems plausible that “undue burden” is an intentionally fungible standard. The definition lacks concrete guidelines and relies on highly interpretable abstractions. The best attempt at clarifying “undue burden” came in 2016 when the Court heard Whole Woman’s Health v. Hellerstedt , a case challenging a Texas law requiring that physicians performing abortions having admitting privileges at a nearby hospital and that abortion clinics have comparable infrastructural capabilities to ambulatory surgical centers. Because these laws serve only to limit the amount of abortion-providing clinics and the amount of physicians legally permitted to provide abortions, the Court held that the Texas provisions constitute an undue burden to abortion access and are therefore unconstitutional.(10)
While this may seem to indicate a limitation on the state’s ability to infringe upon reproductive rights, the language used in the opinion was highly specific. As a result, a seemingly progressive decision was in actuality meaningless: many states currently have nearly identical provisions to those struck down in Hellerstedt . Among those is Missouri(11), one of the most reproductively restrictive states in the union. To gain a comprehensive survey on the evidently unencumbered and broad standard for the degree to which the state can regulate abortion, we turn to Missouri as a paradigm. With an examination of Missouri’s abortion restrictions, we can consider the question: how far can the government go to prevent women from accessing abortion while remaining within the bounds of the Constitution?
Missouri is a largely conservative state. The billboards lining the highway reading “love your babies, born and unborn” (12) can tell you as much. Considering this predisposed anti-abortionism, it seems unsurprising that there is only one abortion clinic in the entire state of Missouri, the PP in Central West End (CWE). I recently had the opportunity to speak with Dr. Jane (13), a physician who provides abortions at this clinic, regarding the stringent framework that the Missouri legislator forces her, her patients, and her clinic to operate within in order to access the, according to Roe , fundamental right to an abortion.
To begin, we turn to one of the provisions directly in Hellerstedt . Though the CWE PP is currently the only abortion clinic, their Columbia location was briefly permitted to provide abortions this summer. However, because Missouri, like Texas did, requires physicians have admitting privileges to a nearby hospital, the Columbia PP was forced to cease their abortion services in early October when the local hospital refused to renew abortion-providing physicians’ admitting privileges. According to Dr. Smith, admitting privileges function with respect to their use: if a physician continually admits patients the hospital will continue to renew their privileges. Because abortion is an incredibly safe procedure, the physicians at the Columbia PP never had to admit patients to the local hospital, so their credentials were not renewed, and, as a result of Missouri’s requirement, they can no longer legally provide abortions.(14)
The legislative intent of this restrictions is to “ensure safe, quality care” (15) and “protect the health of Missouri women.” (16) However, less safe procedures are not subject to nearly as many restrictions which are imposed under the guise of safety. Giving birth, for example, is exponentially riskier than abortion, and yet Missouri birthing clinics are substantially less restricted.(17) This juxtaposition undermines the legislator’s claimed objective of women’s safety, when a much more common procedure and much less safe procedure is not held to the same regulatory standard. The cited intent is clearly deceitful: if Missouri lawmakers truly cared about women’s health, they would be more focused than they are on insuring the safety of soon-to-be mothers at these clinics, compared to the mountain of so-called safety restrictions imposed on abortion providers. Justice Ginsburg discussed this very dichotomy in her Hellerstedt concurrence, explaining that the claimed legislative intent was safety, but the safety standards for the more dangerous procedure of childbirth are much lower(18); because this objection was located in the concurrence and not the majority opinion, it has no bearing on laws with similar cognitive dissonance, like in Missouri. The admitting privileges restriction, which according to Dr. Smith has no medical explanation, presents concerted efforts at limiting women’s physical ability to access abortion services. Since the closing of Columbia’s abortion clinic, all Missouri women have to travel to St. Louis to obtain an abortion, which especially adversely affects less socioeconomically capable women.(19)
Much like the admitting privileges requirement, many of Missouri’s abortion restrictions lack medical justification. One of the more infamous of these is Missouri’s framework for informed consent. The state-determined structure of abortion services is two-pronged: consent and procedure. The first appointment, at minimum seventy-two hours prior to the procedure itself, consists entirely of consenting to an abortion with the same physician who will conduct the procedure. This same physician requirement is a particularly burdensome aspect of the framework. Often times, according to Dr. Smith, abortion providers only work a few days a month at clinics, sacrificing vacation days from their practices.(20) Seventy-two hours is already the longest amount of time mandated women wait to receive an abortion. (21) Because the patient must give their consent to the same physician who conducts the procedure, the wait time in practice is typically much longer than seventy-two hours. Furthermore, imposing a state-mandated wait time, regardless of length, is medically irrelevant (22) and is instead caked with paternalistic, sexist overtones. The framework assumes that women are hyper-emotional and irrational, requiring the assistance from the state to push them to think about their decision. This essentially functions like giving a child a time-out and instructing them to think about what they’ve done wrong. The initial of the two appointments is designed to do just that by centering around “Missouri’s Informed Consent Booklet.” Much of its information lacks medical fact and is instead overtly intended as a scare tactic to convince women to not receive an abortion. (23) The booklet begins with, “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being,” and continues to discuss fetal pain, the links between abortion and psychological disorders, and describes the surgical abortion procedure incorrectly as “sharp cuttage” (24); none of this information is medically accurate. (25)
In addition to this plethora of imposed restrictions, the CWE PP stopped offering medical abortions. This comes after a new Missouri law, again in the name of protecting women’s health, mandating that women must get a physical exam, which includes an invasive pelvic exam, in order to access the medical abortion option. To quote Dr. Smith, “This is bullshit. There’s no reason you should need that.” The medical abortion procedure is entirely oral, functioning as two pills taken once at the clinic and once at home, and there is no medical reasoning to support why anyone choosing this route would require a pelvic exam. Many women choose this option because its physical privacy. Ironically, then, the required physical exam seems to actively infringe upon women’s privacy, perhaps stripping women of this reason to why they’d turn towards medical abortions in an effort to turn them away from abortion services generally. This new legally mandated procedure essentially functions as state-sanctioned sexual assault: women’s bodies invaded against their will and against medical guidance just because the legislator says so. Forcing women to undergo a highly invasive physical exam with no medical necessity is unethical; according to Dr. Smith, this is why the CWE PP no longer offers the medical abortion service. (26) The guarantee to an abortion decided in Roe was predicated on the constitutionally protected right to privacy. (27) Though this law seems to quite egregiously infringe upon this right, it is still in effect, severely limiting women’s ability to access safe, legal abortion services. Towards the end of our conversation, Dr. Smith posed the terrifyingly pragmatic hypothetical: “should we just close to prove that this is an undue burden?” (28)
Given the legal framework surveyed and the restrictions that can still exist within this framework, it seems quite plausible that an anti-abortionist Brett Kavanaugh is telling the truth: he will be loyal to precedent. Missouri only has one abortion clinic offering one procedure that is incredibly emotionally and commercially expensive to access, yet somehow none of this presents an “undue burden.” As this paradigm clearly shows, Kavanaugh can maintain precedent, the theoretical right to an abortion, while working to extinguish abortion access. Herein lies the problem: abortion can’t just be legally permissible, but practically accessible. The Human Rights Watch declared women’s reproductive autonomy a human right. (29) Abortion levels don’t change based on legal restrictions, only women’s methods do as they are pushed behind closed doors.(30) While abortions conducted by physicians are very safe, do-it-yourself abortion methods like bleach or wire hangers are incredibly dangerous. If lawmakers cared about women’s health as much as they claim to, they would be more focused on ensuring that women have safe, practically accessible abortion services rather than imposing pseudo-paternalistic restrictions that make these DIY abortions women’s only route for reproductive autonomy.
Footnotes: (1) #ABORTIONISAGISM . Columbus, OH: Created Equal, 2018. (2) Garza v. Hargan , 2017 U.S. Dist. LEXIS 175415 (D.D.C., Oct. 18, 2017) (3) Kilgore, Ed. “Sen. Collins, Why Are Anti-Abortion Groups Celebrating Kavanaugh Confirmation?” Intelligencer. October 08, 2018. Accessed October 14, 2018. (4) Marcotte, Amanda. “Planned Parenthood Plans to Build a Post-Roe Abortion Network.” Salon. October 11, 2018. Accessed October 14, 2018. (5) Connor. “Brett Kavanaugh Calls Roe V. Wade “Settled” Precedent But Won’t Give His Own Opinion On Abortion Rights.” (6) Roe v. Wade, 410 U.S. 113 (1973) (7) Liu, Joseph. “A History of Key Abortion Rulings of the U.S. Supreme Court | Pew Research Center.” Pew Research Center’s Religion & Public Life Project. May 06, 2013. Accessed October 16, 2018. (8) “Planned Parenthood of Southeastern Pennsylvania v. Casey.” Oyez, 13 Oct. 2018. www.oyez.org/cases/1991/91-744. (9) #ABORTIONISAGISM . Columbus, OH: Created Equal, 2018. (10) “Whole Woman’s Health v. Hellerstedt.” Oyez. Accessed October 13, 2018 https://www.oyez.org/cases/2015/15-274. (11) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018. (12) “Our Lady of Guadalupe For Life.” Our Lady of Guadalupe For Life. 2013. Accessed October 14, 2018. (13) A pseudonym to protect the identity of the abortion-provider interviewed. (14) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018. (15) United States of America. State of Missouri. Code of State Regulations. Rules of Department of Health and Senior Services Division 30—Division of Regulation and Licensure Chapter 30—Ambulatory Surgical Centers and Abortion Facilities . March 31, 2018. Accessed October 13, 2018. (16) “Judge Allows Missouri Medical Abortion Rules to Stand.” AP NEWS. June 12, 2018. Accessed October 14, 2018. (17) United States of America. State of Missouri. Code of State Regulations. Rules of Department of Health and Senior Services Division 30—Division of Regulation and Licensure Chapter 30—Ambulatory Surgical Centers and Abortion Facilities . March 31, 2018. Accessed October 13, 2018. (18) “Whole Woman’s Health v. Hellerstedt.” Oyez. Accessed October 13, 2018 https://www.oyez.org/cases/2015/15-274. (19) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018. (20) Ibid. (21) “Counseling and Waiting Periods for Abortion.” Guttmacher Institute. October 3, 2018. Accessed 14, 2018 (22) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018. (23) Ibid. (24) Missouri’s Informed Consent Booklet . Jefferson City, MO: Missouri Department of Health and Senior Services, 2017. (25) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018. (26) Ibid.(27) Roe v. Wade, 410 U.S. 113 (1973)(28) “Dr. Jane Smith.” Telephone interview by author. October 11, 2018.(29) “Q&A: Human Rights Law and Access to Abortion.” Human Rights Watch. May 14, 2018. Accessed October 14, 2018. (30) “This Is What Happens When Abortion Is Outlawed.” The American Prospect. Accessed October 14, 2018.
By Hannah Langsam