43 Years Later, Anti-Choice Advocates Continue to Ignore ‘Roe’

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Commentary Law and Policy

43 Years Later, Anti-Choice Advocates Continue to Ignore ‘Roe’

Jessica Mason Pieklo

What good is having the right to an abortion as settled law if anti-choice advocates refuse to recognize it as such?

Friday marks the 43rd anniversary of Roe v. Wade, and abortion rights have never been more at risk. Anna Yocca sits in a Tennessee jail, waiting for her next court appearance on an attempted murder charge for allegedly trying to self-induce an abortion with a court hanger. Later this spring, the Roberts Court will hear arguments in Whole Woman’s Health v. Cole, a case challenging provisions of HB 2, an omnibus law that has largely succeeded in basically regulating abortion out of existence in Texas, even with portions blocked by the courts. Meanwhile, cases in Michigan and California are testing whether or not Catholic hospitals can refuse to follow best medical practices and deny reproductive health care to patients based on religious doctrine.

Forty-three years after the Supreme Court decided Roe v. Wade, this is what “settled law” looks like when it comes to abortion rights—a legal landscape arguably as hostile and confusing for many pregnant patients as it was before Roe.

Take, for example, Whole Woman’s Health v. Cole, the abortion access case the Roberts Court will hear later this spring. The challenged provisions of Texas’ HB 2 require abortion clinics to meet the same architectural requirements as stand-alone surgical centers, and also require abortion doctors to maintain admitting privileges at nearby hospitals in order to perform abortions in the state. Proponents insist the measures promote patient safety, despite a mountain of evidence that these kinds of targeted regulation of abortion providers (TRAP) laws do just the opposite—they worsen patient care and health outcomes.

Since Texas enacted HB 2, as Teddy Wilson reported for Rewire, the state has seen the number of clinics that provide abortion services drop from 25 to 19. Should the Supreme Court uphold the law, no more than ten will remain open. Those clinics that have been able to stay open are primarily located in the heavily populated urban areas of the state, leaving rural Texans to travel hundreds of miles to access an abortion provider. A recent study suggested many don’t make the trip: Between 100,000 and 240,000 Texas women of reproductive age have attempted to end their pregnancies on their own.

Sex. Abortion. Parenthood. Power.

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Reproductive rights advocates have put forward an impressive case for why HB 2 should fall. And despite a conservative majority hostile to abortion rights, the Roberts Court has once already blocked portions from taking effect. But this will also be the first time the Court jumps back into the abortion debate since its 2007 decision in Gonzales v. Carhart. That decision upheld as constitutional the so-called federal Partial-Birth Abortion Ban, despite the fact that it represented a pre-viability abortion ban—and should have been protected under Roe and 1992’s Planned Parenthood v. Casey—and despite the fact that the professional medical community was largely against it. The win in Gonzales v. Carhart emboldened anti-choice lawmakers to rely on convenient junk science to pass increasingly prohibitive measures with very little worry those laws would be overturned by the federal courts.

Thus, since 2007, anti-choice lawmakers have continued to advance restrictions grounded more in science fiction than science. Those include claims that a fetus feels pain at 20 weeks, so states should ban the procedure at that point, and the assertion that abortion—a medical procedure far safer than, say, some dental work—is so harmful it requires heightened regulation.

HB 2 is the natural, logical conclusion of Gonzales, as anti-choice lawmakers advance legal claims that closing abortion clinics actually improves patient health. To support those claims, attorneys defending HB 2 and similar restrictions in places like Alabama, Louisiana, and Wisconsin have relied on evidence supplied by discredited anti-choice activists rather than the mainstream medical community, which overwhelmingly opposes restrictions like those at issue in Whole Woman’s Health.

Should the State of Texas succeed in defending those restrictions this spring before the Roberts Court, the result could be a fresh new wave of abortion clinic closures across the country. Should advocates succeed, access, for the moment, will be protected.

But what does that protected access look like? In Texas, many patients already must travel across state and sometimes international borders to access abortion care. That likely won’t change with a Supreme Court win this spring. That’s because even a win won’t magically re-open clinics closed under HB 2, nor will it bring back the services and providers lost in those closures.

In places like Michigan and California, that “protected access” often means patients face choosing care from Catholic hospitals and clinics or receiving no care at all. As the Roberts Court considers whether or not to uphold portions of Texas HB 2, the U.S. Court of Appeals for the Sixth Circuit will consider whether or not Tamesha Means should be able to sue the Catholic hospital that turned her away three times while she was heavily bleeding and actively miscarrying her pregnancy because her non-viable fetus still had a heartbeat.

As more and more independent reproductive health-care providers close thanks to TRAP laws, patients like Means or Rebecca Chamorro have only Catholic facilities from which they can seek services. And with those facilities refusing to provide contraception, abortion, sterilization, or related reproductive health care to its patients because of Catholic beliefs that these procedures are “intrinsically evil,” what good is a constitutional right to abortion if doctors and hospitals can legally refuse to provide it?

​For that matter, what good is that right if patients cannot afford it, or are punished for trying to obtain it?

Which brings me back to the case of Anna Yocca. In September 2015, Yocca allegedly filled a bathtub with water, sat in it, and then took a coat hanger and attempted to induce her abortion. She was reportedly 24 weeks pregnant at the time. According to local police, Yocca bled heavily during the attempt, at which point her boyfriend rushed her to the hospital. Medical professionals at Saint Thomas Midtown Hospital in Nashville delivered a 1.5-pound infant boy. The baby survived and will reportedly need extensive medical care. Hospital staff alerted law enforcement officials after, they said, Yocca made “disturbing statements” to them about trying to terminate her pregnancy.

Prosecutors indicted Yocca on a charge of attempted murder under the state’s general homicide statute for her alleged self-induced abortion, sending the express message to other pregnant people in Tennessee that should they try and terminate a pregnancy themselves, they will face a choice: Seek medical care for complications and go to prison, or avoid care for any complications altogether. Yocca has pleaded not guilty to the charge and has her next court appearance in February.

Anti-choice activists were quick to applaud Yocca’s indictment. Senior policy advisor for Operation Rescue and convicted felon Cheryl Sullenger offered this statement following the news, without apparently a hint of irony:

There are plenty of places for her to go. Every state has at least one abortion clinic. There is no excuse for that. Every state has a number of pregnancy help centers that offer free help to women who are pregnant. So you know for a woman to feel like she has to self-induce there is no reason for that in America today. We all have to obey the law whether they are convenient or not convenient. If she felt like she didn’t want to drive a couple of miles down the road to the nearest abortion clinic, she would rather self-induce, then she should be prosecuted.

As if accessing abortion were always that simple.

Forty-three years after the Supreme Court recognized the right to an abortion as fundamental, I feel safe saying that maybe it’s OK for reproductive rights advocates to move past the anniversary. Roe has almost always been at best an empty promise of full reproductive autonomy for low-income patients thanks to the Hyde Amendment’s restriction on Medicaid funding for abortion. Statewide conservative attacks on access means Roe’s unfulfilled promise now extends to anyone who happens to live in the 24 states that hyper-regulate abortion access.

No doubt about it: The anniversary of Roe v. Wade marks an important milestone for gender equality and an important milestone for the reproductive rights movement. But that milestone no longer marks progress forward. Instead it’s more of a reminder that no matter the law, conservatives will never quit with their attacks on women’s bodies and our ability to manage them.