This op-ed is part of a new Harvard Law Record feature highlighting opposing views from members of the HLS community. Related views on this topic can be found below.
Does anyone, on any side of the abortion debate, sincerely believe Texas when it says it is enacting draconian laws targeted at closing abortion clinics because it wants to improve women’s health? Does anyone really think that restrictive regulations that will close the majority of access points to health care, regulations that the American Medical Association believes are unnecessary and counterproductive, regulations that will force many women into the far more dangerous medical procedures of either childbirth or D.I.Y. abortions, are there to protect women from the almost non-existent dangers of their safest option once they are pregnant? The closure of many clinics in response to the regulations of HB2 has led to weeks-long waiting lists at the remaining clinics – it is bad both for the health of a woman and for those who care about the developing fetus to delay the procedure until later in the pregnancy due to inadequate clinic access.
We know why Texas framed its abortion restrictions to pretend that they advance women’s health; the Casey decision leaves health as a valid state interest in regulation. But that does not mean their motives are what they say. As Justice Kagan pointed out in oral argument, “Texas [says it is setting] much, much higher medical standards, … for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work? Am I right?… And I guess I just want to know, why would Texas do that?”
Let’s take a closer look at some of the Texas regulations. First, Texas requires that Doctors who provide abortions obtain admitting privileges at hospitals within 30 miles of their clinics. Texas is spread out enough that there is frequently only one hospital within 30 miles and Texas knows that many hospitals, including notably Catholic hospitals, will refuse to provide admitting privileges specifically because these doctors perform abortions. Second, if a woman needs to go to the hospital in an emergency, the hospital will accept her regardless of whether or not her doctor has admitting privileges. Third, legal abortion is an extremely safe procedure; complications requiring a trip to the hospital occur in only five out of ten thousand procedures, far less frequently that the complication rate of procedures like Liposuction, and dramatically less than the complication rate for birth. In fact, other hospitals will refuse admitting privileges to abortion providers because abortion is so safe that those doctors never refer many patients to the hospital in the first place.
HB2 also contained a provision, similarly enacted in the name of women’s health, requiring women receiving “medication abortions” (pill based abortions without any surgical elements) to make more doctors appointments – and hence take more time off work – than the medical standard of care required and to take a far higher dose of the drugs, potentially leading to many more side effects. Does that sound like the actions of a state worried about protecting women’s health?
So let’s drop the pretense that Texas was acting to protect the health of the woman by enacting regulations that limit her choices and push her to far more dangerous medical procedures, either birth or illegal abortion. Texas was attempting to radically restrict abortion access in a way that they hoped the Court would find palatable. Once the real goals of Texas are unmasked, the question then becomes, is Texas justified in trying to reduce access to abortion?
This may seem absurdly obvious, but when a pregnant woman opts not to have an abortion, the result is almost always a baby. First, if we are actually concerned about a woman’s medical health, childbirth is dramatically more dangerous than legal abortion. But second, if the timing in a woman’s life is wrong or if her partner is wrong, that child could reasonably cut her off from the ability to participate equally in modern life. An Amicus Brief in Whole Women’s Health contained the stories of 100 female lawyers discussing their own decisions to have abortions and the overwhelming likelihood that they would not have been able to become attorneys without the option to have an abortion and the ability to decide their own futures.
Many anti-choice advocates zoom way in and focus only on the zygote, embryo or fetus. They focus on the decision to have an abortion or not, but fail to note that the fetus is inside of a woman and that if there is no abortion, there will soon be a child that she will be responsible for. (To Nic’s point about adoption, I highly recommend The Girls Who Went Away which documents the lifelong P.T.S.D. faced by women and girls in the 1950s and 1960s who were forced to bring pregnancies to term before legal abortion and coerced into relinquishing parental rights due to the stigma surrounding unwed motherhood. Adoption may work well for the families who freely choose it, but putting a woman in the situation of forcing her to have a child she does not want and does not feel she can provide for and then giving her only the limited choice of abandoning her own child or destroying her future life to raise it is not much of a choice at all.)
It is an entirely consistent and sensible position for even the most ardent supporters of choice to wish that abortion is safe, legal, accessible, and rare. As an old saying goes, “no woman wants an abortion. Either she wants a child or she wishes to avoid pregnancy.” I’m glad to see that Nic agrees with increasing accurate sex education and creating access to the most effective types birth control – unfortunately Republicans typically oppose both of those common sense initiatives and the fights to defund and persecute Planned Parenthood would eliminate access to birth control for millions, with the effect of dramatically increasing the demand for abortion when unintended pregnancies inevitably follow.
Of course, we cannot forget that, when denied the opportunity to have a safe and legal abortion, many desperate women will seek to end their pregnancies by whatever means available, no matter the risks. The New York Times recently documented “The Return of the D.I.Y. Abortion” that showed Google searches for how to self-induce an abortion soaring in areas where regulation had shut down clinics. In 2011, there were 16.9 abortions a year per 1000 women of reproductive age. Immediately before Roe v. Wade, the number was 16.3. Abortions will occur no matter if all the clinics are closed, they will simply be far, far more dangerous. As comedian Samantha Bee asked recently – if Republican legislatures are going to restrict access to abortion while pretending to care about women’s health, “Have [they] thought about regulating the safety of back alleys?”
Sarah Gitlin is a 3L at Harvard Law School.
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