Commentary Abortion

Forty Years After Roe, “Choice” No Longer Means Much in Michigan

Angi Becker Stevens

The meaning of “choice” here in Michigan—as in many other states in the country—has eroded a great deal since that day 40 years ago when the Roe decision was handed down. How did we end up here? And more importantly, how do we move forward?

From my vantage point in Michigan, celebrations of Roe v. Wade’s 40th anniversary have felt decidedly bittersweet. Earlier this month, Governor Snyder signed HB 5711 into law—Michigan’s anti-abortion super-bill, which will prohibit the telemed prescription of medical abortion, force all women seeking safe abortion care to undergo “coercion screenings,” and enact a number of costly regulations on abortion clinics and providers, inevitably forcing many clinics to close their doors. All of this is in a state that already required a 24-hour waiting period before obtaining an abortion, where minors cannot obtain an abortion without parental consent, and where 87 percent of counties do not have a single abortion provider. The meaning of “choice” here in Michigan—as in many other states in the country—has eroded a great deal since that day 40 years ago when the Roe decision was handed down. How did we end up here? And more importantly, how do we move forward?

Under the language of the Roe v. Wade decision as it was written in 1973, it was extremely difficult for states to pass laws restricting access to abortion care, at least during the first two trimesters of pregnancy. Though the decision fell short of guaranteeing abortion access as a right, it did not allow for state intervention in regulating abortion except in cases where such regulations could be shown to be of clear medical benefit. In 1976, the Hyde amendment dealt a massive blow to abortion access by prohibiting the use of federal Medicaid funds for abortion; in the years between Roe and Hyde, approximately 295,000 abortions annually were paid for with Medicaid funds. With Hyde’s passage, access to abortion instantly became a privilege, out of reach to many who needed it most. But it was not until the early 1990s that state legislatures gained the authority to restrict abortion in the myriad ways that have become so familiar to us today. In the 1992 Supreme Court case Planned Parenthood v. Casey, the court ruled that states were free to place regulations and restrictions on abortion access so long as those restrictions did not impose an “undue burden” on a woman’s ability to choose. State lawmakers were no longer required to argue that abortion restrictions had medical benefits; on the contrary, they became free to openly acknowledge the ideological basis behind their proposed restrictions on abortion access. Suddenly, it was open season for creating barriers between women and abortion. And the murky question of what, precisely, constitutes an “undue burden” remains open to interpretation.

At the same time as states were granted this far-reaching power, a cultural shift surrounding abortion had taken place. Twenty years after Roe, a generation had come of age taking legal abortion for granted. In the days before Roe, it was necessary for abortion-rights activists to speak of abortion in terms that were bold and affirmative. But in the years that followed, as legal abortion became a given rather than something to fight for, even those who identified as pro-choice began to increasingly speak of abortion as a necessary evil rather than celebrating it as an essential ingredient for women’s equality. Bill Clinton was lauded as the first unabashedly pro-choice president, yet he popularized the now oft-heard refrain that abortion should be “safe, legal, and rare.” Legal abortion was defended most often on the grounds that without it, women would simply be endangered by illegal abortions, either self-inflicted at the hands of “butchers.” This notion—that abortion must remain legal only because it will happen anyway, and it’s safer this way—is a far cry from the notion that women have a right to bodily autonomy, and that without access to safe abortion care, women cannot be entirely free in a world where we cannot control our own reproductive lives. Even Planned Parenthood, when threatened, tends to publicly respond by downplaying its abortion services and focusing instead on the other health services the organization provides. And it is this ambivalent treatment of abortion—as an unpleasant, shameful, but necessarily legal thing—which invites support for all manner of restrictions.

Perhaps nowhere is this ambivalence about abortion as evident as a state like Michigan. We are not a Southern state, known for our biblical conservatism—the kind of environment where extreme restrictions on abortion are expected. We are, in many ways, the quintessential Midwest: blue-collar, working-class, and characterized, if anything, by a desire to be polite and reasonable. We are a state that does not want to rock the boat, that does not want to talk about religion and politics at the dinner table. It is precisely the kind of environment where people want abortion to remain legal, but are generally uncomfortable with the topic, and are easily persuaded that abortion restrictions are simply good common sense. Though at this particular moment we are governed by both a predominantly Republican legislature and a Republican Governor, anti-choice Democrats are easily elected here, and those who do claim to be pro-choice are often still supportive of restricting access to safe abortion care. It was a democratic former Governor, James Blanchard, who signed our parental notification requirement into law. And years later, yet another Democrat, Jennifer Granholm, signed off on the “informed consent” legislation mandating 24-hour waiting periods and requiring that any woman in need of an abortion be given state-produced materials detailing the current developmental stage of the embryo or fetus she is carrying. We are a state, in other words, where the dividing line between “pro-choice” and “anti-choice” is often not so clear, and where that divide certainly does not fall neatly along partisan lines.

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For many years now, even many who identify as “pro-choice” have been all too willing to accept any and all abortion restrictions so long as abortion remains at least officially legal. But what does it mean for abortion to be technically legal if it is inaccessible to the majority of women who need it? Many people today don’t realize that legal abortion did take place in America before Roe v. Wade. But obtaining one required the often traumatic and dehumanizing process of going before a hospital “abortion board” to request permission for a legal abortion. Or, alternatively, in the late sixties and early seventies, women with the resources to do so could travel to one of the states where abortion had been legalized pre-Roe. The majority of Americans do not wish to see Roe v. Wade overturned. But the restrictions we are living with today have, in essence, already returned us to a pre-Roe era: one in which legal abortion exists, but is extremely difficult to come by. The purpose of the fight for Roe was not simply to make some abortions available for some women in positions of privilege. The purpose was to make abortion equally available to all women who need them. And the state of Michigan today—along with many other states in the country—falls extremely short of this ideal.

If we are to truly defend abortion rights—not simply preserve legal abortion in an empty sense—we need to reclaim the urgency of those before us who fought to legalize it in the first place. We need to stop treating abortion as a dirty word, but instead be willing to positively affirm it as a vital component of reproductive health care. We need to stop taking abortion access for granted, and to stop living with the illusion that so long as Roe has not been overturned, abortion is available for the women who need it. And we need, finally, to reclaim the dialogue surrounding reproductive rights. Abortion access always has been, and always will be, a key component to women’s equality. And it’s time we get back to speaking boldly about abortion in terms of women’s liberation, not fetal personhood.

If there were actual, serious talk of outright banning abortion in America, I believe there would be a massive outcry of resistance. But we need to realize that, at least in many states, the situation is just this dire. If we are to build the kind of social movement that’s strong enough to fight back against these attacks on reproductive freedom, we must begin by fully recognizing just how serious the consequences of these restrictions are. If we want to honor the legacy of Roe, let’s do so by remembering the spirit and the intent of those who fought for it. Let’s not continue to believe we are honoring Roe by sitting by and allowing it to be stripped of all real meaning. “Choice” means nothing in a world where there is no access. As Michigan faces a future with few remaining clinics, higher abortion costs, and a rapidly increasing list of obstacles women must pass through before being permitted to obtain an abortion, that world without choice is not some far off, conservative dystopia. It is here now. And we must first recognize the severity of the situation we’re in if we are to find a way out.

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.