Darlena Cunha is a contributor to TIME
The U.S. is doing abortion rights all wrong, and has been since 1973.
The groundbreaking Supreme Court decision in Roe v. Wade set precedent for protections for women seeking abortions, which has facilitated freedom of choice for women over the past 40 years. But it’s legally built upon a foundation prone to attack and susceptible to different blanket definitions that redefine the very premise upon which it stands.
As the Supreme Court readies to hear arguments on Wednesday in Whole Women’s Health vs. Hellerstedt, a case over the 2013 Texas law that effectively shuttered all but a few clinics across the state, we need to reevaluate what is being done in the name of women’s health.
This point should be moot. We are only dealing with this question because abortion is protected by privacy, not by equality.
Roe v. Wade extended federal protection of a woman’s right to pursue an abortion based on the 14th Amendment—the constitutional right of citizens to privacy. At the time, the court stated that a woman had the right to privacy in her reproductive health choices. This premise, however, requires a balancing act between the strength of that privacy and the interest the state has in protecting the potential life of the fetus and the mother. And that balancing act has naturally turned into a tug of war.
The court has essentially paved the way for attacks on women’s health in the name of women’s health. Abortion is not banned, but it is not accessible to many.
Planned Parenthood v. Casey tosses the trimester framework used in Roe—instead focusing on making sure there is no “undue burden” on women who seek abortions. By granting states power to define for themselves what “undue burden” truly means, states can argue that restrictions on abortion clinics are a benefit for women. The Texas law currently requires all doctors performing abortions to have admitting rights at a hospital no further than 30 miles from the clinic. The bill shut down nearly all of the abortion clinics in Texas, leaving women who needed this procedure to drive for hours, often across state lines. The plaintiffs in Whole Women’s Health argue this is an “undue burden.”
Add the Casey decision to the Hyde Amendment, which cut out any federal funds allocated to abortion providers, and we find ourselves in the situation we are in today. We have gotten rid of an objective marker in the form of fetal development and replaced it with a subjective marker in the form of how much stress lawmakers think their decisions could cause a woman seeking this procedure. This essentially places women’s rights in the hands of legislators.
In Florida, a bill recently passed through committee that would make performing abortions or operating a clinic that performs the procedures felonies punishable by up to 30 years in prison. In Ohio, Kentucky, Arizona and many other states a woman must go through state-directed counseling that encourages her to keep her pregnancy then wait for 24 hours before reiterating her decision, and private insurance can only cover costs due to life endangerment, rape or incest. Marketplace or insurances for public employees in many cases do not cover the service.
According to the Guttmacher Institute, one in four women will get an abortion before turning 30, 45% of women getting an abortion would be single mothers, and more than two-thirds of women who need this option are living in poverty, with 42% of them living at 100% below the poverty line. Who are we protecting?
As Justice Ruth Bader Ginsburg has argued, abortion rights should be based on nondiscrimination rather than privacy. If a woman chooses to have an abortion, or carry to term, that should be her choice alone because the birth of a child affects a woman at the time and throughout her life in ways it does not affect a man. In other words, instead of basing a law regulating women’s health care on their right to privacy, we need to base it on their rights as equal citizens in the United States.
Even should the justices decide in favor of the plaintiffs in Whole Women’s Health, it’s likely that the debate will continue. We need to change the law—and our entire approach to abortion rights.
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