Yesterday the Supreme Court, by a 5-4 vote, continued a stay on a highly restrictive Louisiana abortion law. Justice Roberts, generally perceived as a foe of abortion rights, voted with the majority to keep the law from going into effect. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented. Kavanaugh wrote to express his belief that the Court should have activated the law to determine whether the new regulations would indeed have the predicted result of rendering abortion much more difficult to access.
Now we will wait until the Court decides what to do, with the likelihood that this case will be on the docket next term. The challenged regulation is quite similar to one invalidated in 2016, but most observers believe that the Court now has the five votes necessary to overturn Roe v. Wade in Justices Thomas, Alito, Gorsuch, and Kavanaugh along with Justice Roberts. Nonetheless, some remain hopeful that Justice Roberts, as a custodian of the Court’s institutional integrity, will maintain Roe’s vitality by re-endorsing the undue burden standard.
Here’s why this fairly likely result will create two drastically different and unequal abortion regimes in the United States – with poor women in red states being the biggest losers.
Déjà vu, 1992?
In 1992, the United States Supreme Court issued its ruling in Planned Parenthood v. Casey. Both pro-choice and pro-life advocates had followed the case closely. Many observers expected the Supreme Court to overturn Roe v. Wade, the 1973 ruling that struck down strict abortion regulations across the nation. However, the Court’s opinion, jointly authored by Justices O’Connor, Souter, and Kennedy (all Republican appointees) instead reaffirmed Roe. It provided a new interpretive standard to determine the constitutionality of abortion regulations. The new standard asked whether regulations created an undue burden on abortion rights.
While many pro-choice advocates celebrated the endorsement of Roe, others (including me) worried about the new standard and the room it would open for fresh abortion regulation. I concluded that Roe had not established a right to abortion, but rather a more limited right to choose abortion. University of Denver scholar Josh Wilson has written extensively about how the undue burden standard has become a battleground in the so-called culture wars, rallying political action around the regulatory space opened up in Casey.
The undue burden standard grounded the Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, which struck down a Texas law requiring doctors performing abortions to have admitting privileges at nearby hospitals and implementing other burdensome and expensive requirements on clinics. That ruling was 5-3 in the absence of Justice Scalia and with Kennedy still on the Court. Roberts was among the dissenters.
What does abortion regulation look like now?
Until recently, the bitter struggle has primarily activated legislatures on the pro-life side, provoking litigation in response by pro-choicers. We are now seeing legislative efforts in some blue states to enshrine protection for abortion in state law, anticipating the further decline of federal protection for abortion rights. The general result has been a problematic policy environment.
Public opinion about the legality of abortion has been fairly stable for the last several years. In fall 2018, almost 60% of Americans believed that abortion should be legal in all or most cases, and 37% believed it should be illegal. However, support for abortion’s legality is strongest in the first trimester, goes down in the second trimester, and is weakest after viability. This shifting support has also been fairly steady since the 1990s.
Many of the regulations that the pro-life movement has secured under the undue burden standard have made abortions more difficult to obtain. However, rather than eliminating these abortions, they have pushed back the timing. An abortion that in a state with few regulations would happen between the sixth and tenth week of pregnancy happens later if a woman must undergo mandatory counseling, additional medical procedures, a waiting period, or other hurdles placed in her path.
Pro-life legislation has also sharply limited access to late abortions. The current constitutional standard remains that states may not prohibit abortions necessary to preserve a woman’s life or health, but in practical terms, elective abortions in non-emergency circumstances are very difficult to obtain late in pregnancy. Only about 1.3% of all abortions in the United States in 2013 were performed after 21 weeks. An even smaller percentage of abortions take place after 24 weeks, and these procedures are performed at only a few clinics in the nation.
These abortions generally involve serious health risk for the pregnant woman or fetal anomalies incompatible with life. Recently, women have told several heartrending stories about late pregnancy terminations. While women undergo these abortions infrequently, the circumstances are almost always complicated or tragic.
Gearing up for constitutional change
As an institutional actor eager to preserve the reputation of the Supreme Court and its authority, Justice Roberts is unlikely to join his conservative brethren to approve a sweeping reversal of Roe. Further, even some members of the Court’s conservative wing might balk at a law like Guam’s 1990 attempt to ban abortion completely (an idea recently revived to apply to abortions after 20 weeks). The conservative majority, however, is very likely to redefine undue burden.
The constitutional foundations of abortion rights already ensure that women need not be provided with any financial assistance for abortions, either public or private. Federal law prohibits spending Medicaid dollars on abortions unless the woman’s life is in danger or she is a victim of rape or incest. Publicly managed insurance coverage often exempts abortion, and private insurers may also opt not to cover abortion services. In some areas, then, abortion is a choice only if the pregnant woman can afford it. The Court has never considered lack of affordability to be an unconstitutionally heavy burden on the right.
Religious organizations’ objections to abortion are also likely to be taken increasingly seriously. Catholic-affiliated hospitals can refuse abortion and sterilization services, and can exercise their own independent judgments about whether to provide emergency abortions for health reasons. In some areas, the only available hospitals are Catholic hospitals. By 2016, in Alaska, Iowa, Washington, Wisconsin, and South Dakota, “more than 40 percent of acute care beds were Catholic-owned or –affiliated.”
The coming perverse and unequal regime
As increasingly burdensome regulations gain approval, the politics of abortion on the state level are likely to drive state policies in opposite directions. Some states will codify Roe or some version of it in state law. Other states, however, will approve regulatory limits that will make abortion more expensive and harder to obtain, almost certainly increasing the median gestational age for the procedure.
One thing is for sure. Women in states with heavily restricted access will continue to get abortions. They will do so, as women have always done, with ingenuity and out of desperation. States that have proven themselves unable to stop the influx of street drugs and the abuse of prescriptions are unlikely to be able to block access to chemical means of abortion. Women going this route, however, will experience greater risks both during pregnancy termination and for their longer term health and fertility.
Women with money will, as they did prior to Roe, use their wealth to find loopholes by traveling or gaining access to providers who will bend or circumvent rules for them. Even wealthy women, however, will face increased costs and risk as the required hoops make the process more complex. Nonetheless, support for abortion in some states will ensure that abortion remains an option for women of means nationally.
Women with fewer resources and women in rural areas in restrictive states will face the most direct and negative effects. For them, abortion will become both more expensive and more inaccessible physically. Young women, too, who may not realize that they are pregnant immediately are likely to find the new hurdles significantly harder to clear. But we know from prior experience that many women will sacrifice significant resources and even their future reproductive health to obtain abortions that they believe to be necessary.
A post-Roe prediction
In sum, regulations designed to deter abortions may indeed thwart a few. Most of them, however, if they have an impact at all, will have the effect of delaying abortions. Pushing back the timing of elective abortions defies the long-term moral consensus of most Americans that earlier abortions are less problematic. Ironically, then, it looks like we are headed for a world in which 1) Roe remains standing in name only as a mocking monument to national recognition of women’s rights to control their fertility and bodies, 2) some states develop these rights and protect them more robustly because of the current threat to Roe, and 3) the states that object to abortion the most will ensure that their denizens are likely to obtain later abortions and suffer greater health risks, even if they don’t get their abortions within those states’ borders.