By Ann Friedman
In America, it's gotten surprisingly difficult to tell whether abortion is a right or a luxury.
Today's Supreme Court decision in Whole Woman's Health v. Hellerstedt would seem to reinforce that it's a right. A majority of the justices recognized that the closure of reproductive-health clinics across Texas and many other states would place an undue burden on women seeking abortions. It dealt a huge blow to so-called TRAP laws, which single-out abortion providers and attempt to regulate them out of existence. The decision is undeniably good news.
But it also reveals a hard truth about the decades-long effort to deliberately deter women from getting abortions. Thanks to federal restrictions and state-level laws, most low-income women have to pay for an abortion out-of-pocket. Eleven states restrict abortion coverage even in private insurance plans. In 17 states, women are subjected to inaccurate information, under the guise of "counseling," before an abortion. In 27 states, woman seeking an abortion have to wait a specified period of time, usually 24 hours. Plus the average U.S. county is 59 miles from the nearest abortion clinic, and travel adds additional costs and inconvenience to a procedure that is, to say the least, costly and inconvenient.
These barriers don't affect all women equally. Although the Whole Women's Health ruling will leave more clinics open, it doesn't correct the fact that abortion is accessible (albeit stigmatized) for some women, and functionally unavailable to everyone else. Forty-three years ago, the Roe v. Wade decision made clear that a right is not a right if you can't actually exercise it. Abortion is still legal, but practically speaking, for many women in many states, it's not a right.
Abortion is still legal, but practically speaking, for many women in many states, it's not a right.
The 1992 ruling in Planned Parenthood v. Casey affirmed the right to abortion, but also opened it up to restrictions -- as long as the new laws did not impose an "undue burden" on people seeking abortions. State legislatures got to work pushing the limits of the definition. Is it an undue burden to have to wait 48 hours to act even though you've already made up your mind? Nah. To have to drive several hours to get the medical care you seek? Nope, that's not overly burdensome, either. To be made to sit through a counseling session where you're given false information? Nope. To have to pay for the procedure out-of-pocket? Definitely not a burden.
Abortion has always been available to relatively wealthy women in America. Even in the pre-Roe era, women with the means to do so could travel to Mexico or fly to Europe for the procedure. Today women who are well-off have relatively unfettered access to abortion. Even if their state requires counseling or has a waiting period or places restrictions on certain procedures, they can go to another state. They're more likely to be able to take time off work and afford child care for their kids while they travel to have an abortion. Choosing abortion usually requires access to money and transportation and work flexibility.
Inequality of abortion access is built into our federal budget. The Hyde Amendment -- which prevents any federal funds from being used to provide abortions -- was something Obama said he was against on the campaign trail. He later reaffirmed Hyde in order to get Republicans to support health-care reform. We offer basic medical coverage to the lowest-income Americans in the form of Medicaid, and yet the government deliberately excludes abortion coverage. That's a tell: Practically speaking, abortion is not a right. It's a luxury.
If abortion were really a right, we wouldn't charge women to access it. We wouldn't allow laws that enforce waiting periods and mandatory counseling to stand. We wouldn't allow providers to be so thoroughly terrorized that only doctors with exceptionally strong political views are willing to help women exercise their right. We wouldn't draw distinctions between abortions: Women who seek abortions because the condom broke and having a baby would interfere with their education would be treated no differently than women who seek abortions because they were raped. In order for women to fully participate in our society, the Supreme Court has ruled, they need equally open access to abortion services -- without undue burdens. Even in the wake of Whole Woman's Health v. Hellerstedt, we don't all have that.
In his dissenting opinion in today's case, Justice Clarence Thomas -- a man who has surely never been required by the government to wait for 24 hours before undergoing a safe and legal medical procedure -- wrote that the majority decision "applies the undue-burden standard in a way that will surely mystify lower courts for years to come." The truly mystifying thing, though, is how we collectively ignored the cumulative effect of abortion burdens and let lawmakers turn our constitutional right into a luxury.