WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg said the concept of "choice" is an ephemeral one for low-income women who live in states that pass laws limiting access to abortion, as they may not be able to afford to travel to a state with less onerous restrictions.
The lack of reproductive freedom is a remaining barrier to gender parity, the justice said at a Duke Law event Wednesday evening. Advocacy organizations and groups that fund abortions have pushed the idea that being "pro-choice" includes fighting to end the decades-old Hyde Amendment, which bans federal funds from going toward Medicaid coverage for abortion except in limited circumstances. One in four women on Medicaid who would have abortions if the Hyde Amendment didn't exist instead carry an unwanted pregnancy to term because of the prohibitive cost of the procedure, the Guttmacher Institute notes.
Ginsburg's remarks were all the more salient given that laws further restricting access to abortion in Mississippi and Texas are waiting to be picked up by the Supreme Court. Legislation requiring clinics to meet the design and building standards of ambulatory surgical centers and mandating that providers have admitting privileges at local hospitals have caused clinics to shutter. They have also forced patients to resort to methods they relied on before the 1973 Roe v. Wade decision legalizing abortion nationwide, like visiting illegal providers, attempting to self-induce their abortions or crossing the border to Mexico.
There’s a sorry situation in the United States, which is essentially that poor women don’t have choice. Women of means do. They will, always. Let’s assume Roe v. Wade were overruled and we were going back to each state for itself, well, any woman who could travel from her home state to a state that provides access to abortion, and those states never go back to old ways … So if you can afford a plane ticket, a train ticket or even a bus ticket you can control your own destiny but if you’re locked into your native state then maybe you can’t. That we have one law for women of means and another for poor women is not a satisfactory situation.
The last time the Supreme Court delineated what kinds of abortion laws were acceptable was in the 1992 Planned Parenthood v. Casey decision, in which the majority ruled states can regulate the procedure unless doing so places "an undue burden" on the constitutional rights of abortion-seeking patients.
Ginsburg's analysis of the challenges low-income women face will be at issue if any four of the court's justices vote to hear the Mississippi or Texas cases. When a panel of the New Orleans-based U.S. Court of Appeals for the 5th Circuit largely upheld Texas' contested provisions this spring, those judges ruled that the state's law did not place an "undue burden" on the constitutional right to abortion, since women in the western part of Texas could just travel across state lines to obtain an abortion in New Mexico. That ruling contradicted an earlier decision from a different panel of the same appeals court saying Mississippi couldn't shut down its last clinic and transfer its constitutional responsibilities to other states.
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