That Happened: Choice Without Access Isn’t Choice


ColumnMarch has been madness when it comes to attacks on reproductive freedom—three states are ignoring the constitution and passing restrictive abortion bans. 

Looking at the political landscape, it’s clear that since I wrote a recap of the attacks on choice exactly two years ago, our ability to make decisions about our bodies and the course of our lives is still on the table. As individual states one-up each other passing over-the-top, unconstitutional bans, Planned Parenthood leader Cecile Richards is concerned that Roe v. Wade may be heading back to the Supreme Court.

In some states, the barriers to access would, essentially, make abortion illegal for anyone lacking the resources to travel, or in some cases pay out-of-pocket for a totally 100 percent legal medical procedure covered by most insurance policies. The fact that a woman may not have the resources to cross state lines but is expected to figure out how to access the prenatal care necessary to have a healthy pregnancy, let alone raise an actual child, doesn’t seem to be part of the conversation in the states where our rights are in the most danger. The top three offenders this month are North Dakota, Virginia and Arkansas.

Let’s start in North Dakota—a state with just one clinic offering abortion services. This month, Gov. Jack Dalrymple signed a bill that, if it goes into effect August 1, would make abortion illegal six weeks after conception. No matter what. Rape? Incest? Not Jack’s problem. He also signed into law two more measures: one that would ban abortions based on genetic defects such as Down syndrome and another requiring any doctor who performs abortions to be a physician with hospital-admitting privileges.

While it might be the least headline-grabbing, it’s the last of the laws that poses the most immediate threat to the women of North Dakota. Here’s why: The six-week ban will be tied up in court for a long time because it undermines the constitutional protections in Roe v. Wade—which guarantees the right to first-trimester abortion services. The even more radical “personhood” amendment, which could ban all abortions if voters approve it on the November 2014 ballot, will face similar legal challenges if it becomes law.

This is by design. Dalrymple doesn’t expect these laws to sail through. In the long term, they’re debates designed to get Roe v. Wade back to the Supreme Court. In the short term, they are red herrings for the real attack: Targeted Regulation of Abortion Providers: TRAP laws. These are the laws requiring anyone performing an abortion to be a physician with hospital-admitting privileges. And this law could close the one clinic in North Dakota.

This popular anti-choice tactic is sold to the public as a concern for women’s safety. But this isn’t about keeping women safe. Women’s health clinics are perfectly capable of providing women with safe abortions, and surgical abortion is actually one of the safest types of medical procedures. Complications from having a first-trimester aspiration abortion are considerably less frequent and less serious than those associated with giving birth. Early medical abortion (using medications to end a pregnancy) has a similar safety profile.

In reality, TRAP laws do just what the name implies: They trap clinics by making it illegal for medical professionals to do their jobs. In Fargo, where the Red River Women’s Clinic is located, at least one of the two local hospitals won’t offer those privileges because the quality of care at the clinic is so high that the clinic doesn’t need them, according to RH Reality Check. I get it, but why not step in and offer the privileges to save the clinic from this attack?

The state’s new Democratic US Senator, Heidi Heitkamp, has been a bit cagey about her stance on abortion. While she has said she is against public funding, she hasn’t said much else and doesn’t have a voting record on the issue. Email Senator Heitkamp and let her know that these restrictions are unacceptable and unconstitutional. A recent email to her supporters asks for donations to fight Karl Rove’s efforts to keep three other women out of office. She says she wants strong women in the government, so encourage her to be strong and fight these bans.

In Virginia, Gov. Bob McDonnell is looking to limit access to abortion via health insurance. He introduced an amendment to the state’s health insurance exchange implementation bill that would prevent insurance plans in the new health exchange from covering abortion. While similar bills introduced in other states would allow a woman to buy a policy rider for abortion coverage, McDonnell’s doesn’t make that inclusion.

NARAL Pro-Choice Virginia estimates that this ban will affect the approximately  50,000 women in Virginia who will be using the state-based health benefits exchange. As in North Dakota, this ban would limit access, primarily, to lower income women. Most private insurance covers abortion services. McDonnell, on his monthly call-in to Washington’s WTOP Radio, said this amendment is simply a restatement an existing federal law — the Hyde Amendment — that prohibits use of public funds for abortion, and also a restatement of existing state law. This amendment is dangerous because, as McDonnell himself said, it provides the language to apply to federal exchanges as well.

In Arkansas, the Republican-controlled House and Senate decided they know better than their women constituents, Gov. Mike Beebe and the Supreme Court when they approved an unconstitutional bill to ban abortions after 12 weeks. The Republican-controlled Senate passed The Arkansas Human Heartbeat Protection Act 26-8. We all started hearing about Heartbeat Bills a few years back when, in Ohio, a fetus was called to testify via ultrasound. To make sure you can hear that beat, the Arkansas bill would also require women to undergo a medically unnecessary, invasive vaginal ultrasound. Beebe vetoed the bill saying it, “blatantly contradicts the United States Constitution, as interpreted by the Supreme Court.” Which it does. As does the six-week bill in North Dakota.

These guys aren’t stupid. They know this. So why are they fighting to get these bills passed in their states? Because, since 1992, they can. Planned Parenthood v. Casey upheld a woman’s right to have an abortion, but some shockingly vague language opened the door for all of what we are seeing today. The Court said the government may seek to discourage women from having abortions by requiring waiting periods and other efforts—as long as these restrictions do not pose an “undue burden” on a woman’s right to an abortion. Undue burden was left undefined.

Is it an undue burden to be forced to have a medically unnecessary trans-vaginal ultrasound? To have to travel hundreds of miles for an abortion, only to be told you have to come back in 72 hours because of a waiting period? What about to be forced to pay for a procedure that should be, legally, covered by health insurance?  Yes, I think those are undue burdens.

This death by a thousand cuts approach isn’t new. Republicans have applied it to voting rights, civil rights, gay rights and other social issues for decades. Public opinion on social issues is changing, and the party can’t win national elections with its throwback views. So Republicans attack issues like abortion and gay marriage piece by piece, state by state. But this isn’t just a fight against abortion; it’s a fight against equality. This is a relatively small number of people—with deep pockets and loud voices—who fear that ensuring the freedom of choice to everyone will rob them of their power. And that would be the best possible outcome.  

Image: alexandralee