Congress Could Legislate ‘Roe v. Wade’ and Still Fail Women
Roe v. Wade only guaranteed the right to patients’ privacy. A federal abortion law would need to go so much further.
April 7, 2021
Apr 7, 2021
8 Min read time
‘Roe v. Wade’ only guaranteed the right to patients’ privacy. A federal abortion law would need to go so much further.
On this year’s anniversary of Roe v. Wade, the Biden administration committed “to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.” This commitment anticipates the possibility that a Supreme Court decision could overturn constitutional protections for abortion rights. Certainly any effort by the Biden administration to “codify” Roe in federal legislation will face deep political resistance and inevitably reflect some measure of compromise. And, while Biden’s commitment to protect abortion rights is a welcome announcement, his terminology reflects a fundamentally misguided legislative aspiration.
Roe v. Wade’s right to privacy is an inadequate anchor for abortion rights. Privacy undergirds an individual’s freedom from government interference, yet demands nothing from the state to create the conditions that ensure access to abortion.
Though the 1973 case Roe v. Wade established a constitutionally protected right to abortion, it never guaranteed abortion access. The Supreme Court held only that state criminal laws banning abortion were an infringement of the constitutional right to privacy. Patients, in consultation with their physicians, could elect to have an abortion for any reason during the first trimester of pregnancy. In the second trimester, states could regulate abortions in order to protect the pregnant person’s health or the dignity of potential life. After the second trimester, a state was permitted to ban abortion unless terminating the pregnancy was necessary to preserve the patient’s life or health. This trimester system was abandoned in 1992, when the Court held that states could restrict abortion before viability (around twenty-four weeks of gestation) so long as the regulation did not place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court’s decision to reject Roe’s trimester framework nevertheless claimed to preserve “the essential holding of Roe.”
Given this history, current proposals to “codify” Roe could mean one, or both, of the following. Codifying Roe could establish abortion as a statutory right to privacy, which is a basis of Supreme Court decisions that interpret the Fourteenth Amendment. It could also create a statutory framework for abortion rights tethered to fetal viability. Both approaches—even if politically successful—could make subsequent federal legislation out of touch and out of date.
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First, as many have long argued, a right to privacy is an inadequate anchor for abortion rights. Privacy undergirds an individual’s freedom from government interference when choosing to end a pregnancy—yet it demands nothing from the state to support the realization of that choice or to create the conditions that ensure access to abortion. This insight has informed a shift in focus from reproductive rights to reproductive justice—the latter stressing that privacy rights are only valuable for people who can exercise them and emphasizing the needs of people oppressed, marginalized, and excluded by law.
Second, statutory rights based on a trimester or viability-based framework could, in practice, fail to thwart various state restrictions on abortions. For example, state laws dictate that people must receive counseling or undergo superfluous medical procedures and tests before getting an abortion. Other laws single out abortion clinics and providers for financial and logistical burdens that are not typically imposed on other healthcare sectors.
The Women’s Health Protection Act would give patients the right to receive abortions free from state regulations that impede access. States passing new laws would have to prove that they are making abortion services significantly safer.
One statutory proposal, the Women’s Health Protection Act (WHPA), illustrates how modern abortion legislation could go well beyond merely “codifying Roe.” In a few of its provisions, the bill addresses specific restrictions on abortion, such as unnecessary waiting periods, inaccurate informed consent materials, pointless and expensive in-person visits, and restrictions placed on why people might have an abortion. If passed, the bill would give providers the right to offer abortion care, and their patients the right to receive that care, free from state regulations that impede access and treat abortion differently than similar health care services. States passing new laws would have to show that regulation makes abortion services significantly safer or protects patients’ health.
Though the 2019–20 version of the WHPA bill did not move out of the Senate Judiciary Committee or the House Energy and Commerce Subcommittee on Health, supporters are hopeful that WHPA will gain traction when it is reintroduced next month in a new Congress. WHPA’s sponsors must be aware, however, that any such proposal will face a battle before today’s divided Senate. And even if the bill passes, it might not be able to withstand a challenge before the Supreme Court. Although WHPA drafters wrote a bill with prospective litigation in mind, one can easily imagine the arguments that anti-abortion states would make in challenging WHPA’s legality. In response to the bill, those same states may nonetheless try to restrict abortion both within and outside of their borders.
Despite these political and legal obstacles, the struggle to enact federal legislation is in itself worthwhile. Proposed legislation such as WHPA is remarkable, regardless of its achievability, because of the commitments to reproductive justice that it articulates and draws together. WHPA represents a distinctly intersectional approach; it acknowledges that not all people who become pregnant identify as women. The bill embraces the idea that abortion care is a public health issue deeply connected with economic and racial justice. These acknowledgements are major steps forward. The bill does not merely aim to codify Roe, but also foregrounds the lessons learned since the decision. In this vein, WHPA seeks to block current laws that prevent people from receiving care and to anticipate future measures that will undermine abortion rights.
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Of significance, however, is the fact that WHPA does not guarantee funding for abortion services. Many Americans already live in a “post-Roe” country, either lacking meaningful access to abortion care or the ability to pay for the care they might be able to find. Such barriers create serious public health problems while simultaneously entrenching economic and racial inequality. Seventy-five percent of people who terminate pregnancies survive at or near the federal poverty line, and a majority of those people report that the cost of raising a child is their chief reason for ending a pregnancy. This should not come as a surprise, given the financial insecurities that dictate the lives and choices of an ever-increasing number of people in the United States. Moreover, most abortion patients are people of color, who are overrepresented among the poor in this country due to centuries of racism.
Seventy-five percent of people who terminate pregnancies survive at or near the federal poverty line, and a majority of those people report that the cost of raising a child is their chief reason for ending a pregnancy.
When people cannot obtain abortion care, they incur social, financial, and physical costs that are extremely difficult to bear. These costs have demonstrable long-term effects that perpetuate cycles of disadvantage and subordination. The COVID-19 pandemic has amplified these burdens by rendering caregiving responsibilities even more challenging, worsening widespread unemployment and placing increased stress on an already overburdened health care system.
A bill introduced two weeks ago in the House and Senate aims to alleviate some of the costs of and barriers to abortion. The bill, the Equal Access to Abortion Coverage in Health Insurance (EACH) Act, would require coverage for abortion care through public health insurance programs (such as Medicaid) and for federal employees. The bill also mandates that federally supported health care facilities provide care for eligible individuals and prohibits the federal government from inhibiting state, local, or private insurance plans from covering abortion services.
Acknowledging the extent to which law influences health outcomes, the EACH Act reflects the reality that abortion restrictions entrench inequality. This kind of vital work may not be furthered by statutes tied to Roe or even by the Supreme Court’s privacy jurisprudence. On the contrary, the highest goals of reproductive justice depend on the communities and networks of people who are rightly outraged by the assault on abortion care. Federal action to protect abortion access across states and extend funding for services is important, but that alone will not be enough to change the current political, economic, and social realities that obstruct abortion services.
Abortion rights depend upon on-the-ground interventions as well as federal and state policies that open avenues to care. Increasing access, for example, need not depend on traditional means of obtaining abortion services. Abortion providers and advocates mobilized quickly during the pandemic, alongside many other sectors of the health care industry, to provide care through telehealth. By December 2020, telehealth for medication abortion through the tenth week of pregnancy was offered in twenty states and Washington, D.C. This involves patients describing their medical history online, consulting with a provider virtually or by telephone, and either picking up or receiving by mail two medications. A Supreme Court order reinstating an FDA restriction on medication abortion has recently frozen some, but not all, of that progress. As health care providers are increasingly able to administer care remotely, and pregnant people can self-administer abortions with minimal professional intervention, the map of abortion access has begun to change in ways that will outlast the pandemic. Such developments go far beyond anything Roe ever contemplated.
Given these potentially transformative opportunities, legislators would do well to provide funding that strengthens the infrastructure for care inside and outside of clinics. Supporting telehealth for abortion, as well as self-managed care, would do much to address inequalities and expand access, two issues that have kept reproductive health care out of reach for many.
Perhaps it is time to stop talking about Roe as the touchstone for abortion rights and to start imagining what law and policy can do to facilitate affordable and available services. By supporting legislation like WHPA and the EACH Act, and repealing federal restrictions, such as those imposed by the FDA, the Biden administration will do more to advance reproductive justice than codifying Roe ever could.
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April 07, 2021
8 Min read time