Real Talk, Abortion.

I have to admit, I’ve been doing a lot of wondering about why at this day in age, in the era of modern medicine, global economies, and the dominance of individual rights, why is there such a polarizing battle over abortion rights and the ability of a woman to seek and obtain an abortion? Call me crazy, but I simply cannot understand the unwavering, illogical push by “pro-life” activists to ban the ability of an individual to obtain an abortion (quotes are intentional - in my opinion, they’re pro-birthers (more on that below)). Pro-birth activists who fail to recognize the important role of sex education and access to contraceptives play in decreasing the need for abortions. Pro-birthers, the very people, that push for full term development of children, while failing to equally advocate for housing, welfare, and gender equality (both from a pay perspective, as well as a child responsibility perspective) in a meaningful and fully interrelated manner. Pro-birthers and the GOP who incessantly advocate to minimize women’s rights in making their own body and health-related decisions in the name of what? God? As if the process of judgment is somehow placed on them as individuals and this nation as a holder of such power. Oh to be so ignorant.

In order to effectively convey my pro-choice spirit, we need to go back to abortion jurisprudence basics. Prior to Roe v. Wade, most states either had outright banned abortions or created caveats for abortion application, such as rape and health risks. On January 22, 1973, Justice Blackmun, a religious man with daughters who had served as counsel for the Mayo Clinic, authored the opinion of Roe v. Wade - a 7-2 opinion of an all male Court, which materially altered abortion rights and access for women nationally. Roe set a standard, a line drawn in the sand, evolving the nation into an era of not only abortion rights, but the right of women to have a say and make decisions when it comes to their own bodies and health. Roe recognized the protection of the right of privacy, in a constitutional context, and determined that the right of a woman to choose to have an abortion fell squarely within that right. Further, the opinion recognized that a state may have a legitimate interest in protecting women’s health, as well as the potential of human life, but noted that such an interest does have variability throughout the stages of pregnancy and that such variability must be accounted for in the law. Roe, ultimately resulted in the ruling that 1) the state cannot regulate abortion during the first trimester - only the pregnant woman and her physician can come to that determination; 2) restrictive parameters may be imposed during the second trimester, so long as they are reasonably related to maternal health; and 3) once the fetus reaches “viability,” the state may restrict or prohibit abortions, so long as there are exceptions allowing for abortion to preserve the health or life of the mother. It is safe to say that Roe v. Wade has been one of the most significant decision to come out of the Supreme Court, only rivaled by the likes of Brown v. Board of Education.

Three years later, in Planned Parenthood v. Danforth, the Court overturned a Missouri law that required a woman to obtain her husband’s consent to undergo an abortion.

In Webster v. Reproductive Health Services, a highly fractured Court (5-4 decision, with concurring, differentiating rationales) upheld the constitutionality of a Missouri statute prohibiting public employees and public facilities in performing or assisting in abortions not necessary to save a mother’s life.

The Missouri statute also prohibited encouragement or counseling related to abortions and required physicians to conduct viability tests on pregnancies 20+ weeks. Finally, the statute defined life as beginning at conception. The Court explicitly indicated the decision did not overturn or contradict Roe. The Court reasoned that the definition of life was defined in the statute’s preamble and thus had no impact on access to abortion and further noted that a right to obtain an abortion does not include the right to government assistance for such procedure.

Almost one year later, the Court held a Minnesota statute unconstitutional in requiring a minor to have consent of both parents to obtain an abortion, indicating that consent of both parents did not serve a legitimate state interest (Hodgson v. Minnesota). The Court upheld a Section of the statute providing a judicial bypass if a minor could maturely demonstrate that parental consent would be unwise.

One of the most significant decisions in the post-Roe era came in 1992 with the Court’s decision in Planned Parenthood of Pennsylvania v. Casey. The case arose from an amendment to Pennsylvania legislation that required women, in order to undergo an abortion, to obtain informed consent, wait 24-hours upon receiving information regarding the abortion, if married, provide notice to their husbands, and if minors, obtain parental consent (with a judicial bypass application). In a splintered 5-4 decision, the Court reaffirmed Roe, but upheld most of Pennsylvania’s provision. However, the Court took a significant step in reworking the three-tiered framework developed in Roe. Rather than evaluating a state’s right to restrict abortion on a trimester basis, the Court developed a new standard - the “undue burden” standard - which poses the question as to whether a state abortion regulation imposes an undue burden on a woman, defining “undue burden” as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In evaluating Pennsylvania’s regulation, the only provision to fail the “undue burden” test (and to be held unconstitutional), was the husband notification requirement.

Since Planned Parenthood v. Casey, a number of challenges to state restrictions have arose in the context of admitting privileges, federal laws banning certain abortion procedures, regulations aimed at shutting down sole clinics in certain states, and more have come up aiming to restrict access to abortion clinics in states, access to doctors specialized in the procedures, and the potential eradication of a woman’s right to choose.

Which brings me to an important point - pro-choice does not mean pro-abortion. It simply means that a woman should have the right to administer her own choice in her health decisions without the regulation and involvement of a state, lobbyists, and other individuals, particularly on the basis of religious beliefs when freedom of religion and the right to privacy are clearly applicable in such cases. Basically, mind your own business. I think that’s important to understand. That religious freedom and the application of religious bases in restricting abortion are, on their face, invalid and unconstitutional. The government is not allowed to enforce a religious basis as a legitimate state interest. And while religion is often cloaked in many different state interests, the lobbying is clear. Following the money leads you to one place and that place has no business in law.

While the regulatory attacks and attempts continue, a woman’s right to choose (and protect herself from having to choose) is being attacked from a corporate perspective as well - due to the Court’s most unfortunate ruling in Citizens United v. Federal Election Commission. Although Citizens United is a case about campaign contributions (not abortions), the ruling applied the free speech protections of the First Amendment to corporations, non-profits, labor unions, and other associations, essentially granting them personhood. This personhood has evolved in cases such as Burwell vs. Hobby Lobby Stores, Inc., which upheld a for-profit corporation’s decision to restrict its employees’ access to certain contraceptives under the employer-based insurance.

So the attacks continue, two-fold - regulatory & corporate, as women’s rights continue to be challenged even when it is proven that access to sex education and contraceptives decrease abortions. Needless to say, the GOP need to get their ducks in a row on this because their push for expansion of corporate personhood is in direct competition with their restriction on abortions. Allow for one and the other will decrease naturally, without state or individual interference. But obviously, one could only be so lucky to find politics functioning in a logical manner. Throw in Amy Coney Barrett’s Supreme Court nomination and you have a recipe for a women’s rights disaster.

Maybe 2020 will be the year we all recognize the extensive breadth and depth which voting carries. From local offices, to state legislatures, to federal representation tasked with appointing decision-makers and precedent creators. Maybe, just may, we will start to take these offices seriously, like our lives and health depend on it. Because, let’s be real, at this point, our lives do depend on it.

-agl.