Tag Archive: Abortion

Restrictive Abortion Law in Kansas

Kansas is set to enact one of the most restrictive and sweeping anti-abortion laws in the country. The Kansas bill states that life begins at fertilization and imposes a number of new abortion regulations. Specifically, the bill prohibits employees of abortion clinics such as Planned Parenthood from providing sex education in schools; bans tax credits for abortion services; requires health care clinics to give details to women about fetal development and abortion health risks; and bans abortions based solely on the gender of the fetus.

Despite the controversy surrounding the bill, the Kansas House voted ninety to thirty for the bill; hours earlier, the state Senate approved the bill by twenty-eight to ten. Governor Sam Brownback is a strong anti-abortion leader and he is widely expected to sign the bill into law within the next few days. The new restrictions will go into effect on July 1, 2013. Critics of the bill argue that it will be harmful to women. For instance, Kansas Senator David Haley, a Democrat who opposed the bill, argues that advocates of the bill were pursuing a “Taliban-like” course by letting religious views dominate the debate; he further argues that the law would limit women’s ability to make decisions about health care and reproduction decisions. Haley also contends that some health care providers might interpret the provision specifying that life begins at fertilization as a ban on birth control.

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the United States Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. According to the Kansas City Star editorial board, the Kansas bill is one of the most punitive abortion bills in the country because the bill (1) places additional financial hardships on women; (2) forces doctors to disseminate misleading information; (3) puts schools in a difficult legal position; (4) denies tax breaks to any health care facility affiliated with abortion services; (4) forces physicians to consider a patient’s motives for seeking an abortion due to the gender-specific abortion provision; and (5) the bill is intended to “harass abortion providers, patients and other entitles, like schools, which are caught in the middle.” For these reasons, the Kansas bill would likely be deemed an undue burden on abortion rights.

The Kansas anti-abortion law highlights the growing trend of states either enacting or considering anti-abortion legislation. According to the Guttmacher Institute, there was not a single significant measure adopted by any state to expand access to abortion in 2012. The Guttmacher report notes that nineteen states adopted forty-three new provisions restricting abortion access in 2012. This trend has unmistakably continued in 2013. In recent months, Arkansas legislators enacted a ban on abortions after the twelfth week of pregnancy and lawmakers in North Dakota enacted an anti-abortion law that sets the limit at six weeks.

Proposed New York Law on Late-Term Abortions

New York Governor Andrew Cuomo has recently proposed some changes to New York’s laws on late-term abortions. Specifically, the new law would guarantee that women in New York have a right to late-term abortions when their health is in danger or the fetus is not viable. Under current New York law, abortions are allowed after 24 weeks of pregnancy only if the pregnant woman’s life is at risk. However, this law is unenforced based on Supreme Court rulings allowing late-term abortions to protect a mother’s health, regardless of whether her life is at risk.  In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court held that Nebraska’s ban on partial birth abortion was unconstitutional because it lacked any exception for the preservation of the health of the mother. The Supreme Court’s abortion decisions show that the preservation of the health of the mother is a paramount concern. Even though New York’s law is unenforced, abortion rights advocates argue that the law has a chilling effect on some doctors and causes some women to leave the state to seek late-term abortions. Furthermore, the proposed New York law would remove abortion from the state’s penal law and regulate it through the state’s public health law. The proposed law would also provide that licensed health care practitioners as well as physicians could perform abortions.

The proposed New York law has generated fierce criticism from anti-choice advocates. Critics of the law assert that the change would allow for unchecked late-term abortions and increase the overall number of abortions in the state. Furthermore, opponents of the proposal argue that the change would endanger the lives of women by allowing non-physicians to perform abortions and prevent any future reasonable regulations of abortion. Polling indicates that many Americans oppose late-term abortions. Indeed, a recent USA Today/Gallup poll showed that 80 percent of Americans oppose late-term abortion (defined in the poll as abortion occurring in the final three months of pregnancy).

The proposed New York law also signals a rare occurrence in recent years of a state seeking to expand abortion coverage rather than restrict it. According to the Guttmacher Institute, 19 states adopted 43 new provisions restricting abortion access in 2012. Further, the Guttmacher report notes there was not a single significant measure adopted by any state to expand access to abortion. Andrea Miller, the president of NARAL Pro-Choice New York, said, “For New York to be able to send a signal, a hopeful sign, a sense of the turning of the tide, we think is really important.”

The Selective-Sex Abortion Ban Debate in the United States

The debate over selective-sex abortion bans remains a contentious issue in state legislatures across the country. On January 16, 2012, Republicans in the Colorado state senate proposed outlawing abortions that are performed based on the sex of the fetus. The proposed legislation defines sex-based abortion as one “undertaken for purposes of eliminating an unborn child of an undesired sex.” Similar legislation has been considered in the past decade on both the national and state level. Arizona, Oklahoma, Pennsylvania, and Illinois have passed statutes banning the procedure in recent years. In May 2012, the U.S. House of Representatives rejected the Prenatal Nondiscrimination Act (PreNDA) that would have imposed fines and prison terms on doctors who perform sex-selective abortions. In a statement opposing the legislation, Representative Diana DeGette, a Democrat from Colorado, said, “I don’t support abortion for gender selection…I don’t know anyone who does. Maybe that’s because there is no problem in this country of abortion for gender selection.”

Supporters of legislative bans on selective-sex abortions argue that there is evidence of the practice in the U.S. among certain ethnic groups from countries where there is a traditional preference for male children, most notably India and China. U.S. Congressman Christopher Smith, a co-sponsor of the PreNDA, argues that the selective-sex abortion procedure “is part of a deliberate plan of population control” and “is the real war on women.” However, critics of the PreNDA argue that conservative Republicans are targeting a non-issue and have effectually created a staw man.

The selective-sex abortion ban debate implicates some serious constitutional and policy concerns. The chief concern is that the legislation would restrict women’s access to abortion by requiring women to disclose why they are choosing abortion. Similarly, there is a concern that the legislation intrudes on a woman’s relationship with her doctor. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. Requiring women to disclose why they are choosing abortion and the imposition of fines and prison terms on doctors would likely be deemed an undue burden on abortion rights. Furthermore, critics assert that legislation could lead to racial profiling of Asian-American women. The constitutional and policy concerns certainly seem to weigh against the selective-sex abortion bans.

The (Notably Absent) EU Policy on Abortion and the European Court of Human Rights

As the perennially contentious American abortion debate picks up during the 2012 presidential election season, some candidates are being pressed on where they stand and giving extreme responses.  For example, vice presidential nominee Paul Ryan is adamantly pro-life and believes that abortion should be illegal in practically all cases, even in the cases of rape or incest and even if it were the only way to preserve the health of the mother.  Hearing such views in the media regarding U.S. politicians’ stance on the subject begs the question of how the European Union, with its great diversity of cultures, has approached this sensitive issue.

Differing from U.S. law, where Roe v. Wade as re-affirmed in Planned Parenthood v. Casey held that a woman has a constitutionally protected right to a pre-viability abortion as a liberty right guaranteed by the Fourteenth Amendment to the U.S. Constitution, which prohibits any state from passing a law prohibiting abortions prior to fetal viability, the European Union does not have a similar overarching requirement concerning abortion which all EU member states must abide by.  For many member states, this does not pose a significant problem for women who seek abortions because most member states have more liberal abortion laws.  However, for women in Malta, where the practice is completely outlawed, and Ireland, where it is allowed only to preserve the life of the mother, some have argued that the practice should be more uniform throughout the European Union.  In 2002, the Women’s Rights Committee of the European Parliament adopted a report (see also explanation of adoption of resolution) that called for abortion to be made legal in all European countries, but this was met with contention, especially from member states with pre-dominantly Catholic populations.

However, the European Court of Human Rights has issued a number of rulings in the past couple of years that indicate the general position on a woman’s right to an abortion as a fundamental right amongst the individual European Union member states, albeit not the European Union as a whole.  The European Court of Human Rights is subsumed under the Council of Europe and is the judicial body that rules on individual applications alleging violations of the civil rights set out in the European Convention on Human Rights.  The European Convention on Human Rights is an international treaty adopted by all the EU member states, although, notably, this treaty has not been adopted by the European Union itself.

One decision that made international headlines in 2010 was the Court’s ruling that Ireland had violated Article 8 of the European Convention on Human Rights which protects one’s right to private and family life. (Case of A., B. and C. v. Ireland) The Court ruled that Ireland had violated its own Constitution when an Irish woman with a rare form of cancer was forced to travel outside of her country after she could not find an Irish doctor to advise her regarding whether continuing her treatment would harm the fetus or whether continuing the pregnancy could cause a re-lapse in her cancer.

The Court held that the woman’s inability to receive information regarding abortion violated the Eighth Amendment to Ireland’s Constitution, which held that abortion was lawful in Ireland if there was “a real and substantial risk to the life, as distinct to from the health, of the mother as a result of her pregnancy.”  While the European Union as an institution may not itself ever enter the abortion debate, given the backlash this has caused in the past, it seems that from looking at other treaties to which all EU member states are parties, the general tone in the EU, in spite of the more extreme abortion laws of a handful of the member states, is one that generally recognizes the woman’s right to reproductive autonomy, at least in extreme cases.

House Votes to Defund Title X Funding

On February 18, the US House of Representatives voted to terminate Title X funding, which supports clinics and programs that provide contraception and basic gynecological care to low-income women. It was passed with a clause that explicitly targeted Planned Parenthood, a nationwide comprehensive women’s health and education  organization. While this Bill has a long way to go before becoming law, it is still alarming, especially because of what this means for women who access their services, who tend to be young women, women of color, and low-income women.

This is not about abortion procedures, although that is what supporters of the bill are saying. In 1977, the Hyde Amendment went into effect. This law severely changed the effects of the Supreme Court’s ruling in Roe v. Wade (which upheld a constitutional right to an abortion up to the beginning of the third trimester) because it outlawed the use of any federal funds for abortion services.  The Hyde Amendment currently allows exceptions for rape, incest, or when medically necessary for the life of the pregnant woman, but for  Medicaid programs as well as other federal programs, such as Indian Health Services or women in the armed forces, abortion for any reason is expressly outlawed.

If federal funds for abortion services have already been restricted, then it becomes unclear what legislators are trying to stop funding- Pap smears, breast exams, yeast infection remedies, contraceptive education, STD and HIV testing and counseling?

House Votes to Eliminate Title X and Planned Parenthood’s Funding

On Friday, February 18, 2011, the U.S. House of Representatives passed an amendment eliminating  the Title X Family Planning Program and Planned Parenthood Federation of America’s (PPFA) 300+ million dollars in federal funding.  According to the Department of Health & Human Resources, Title X was enacted in 1970 in order to provide access to family planning and other health related services including cancer screenings, breast and pelvic exams, contraception services, STD education, counseling, research and testing, prenatal care and counseling, and community outreach.  Title X funding typically supports low-income and young women without health insurance and is a significant resource of funding for PPFA.

In addition to voting against Title X funding, the House also voted to eliminate Medicaid funding for PPFA.  According to Susan Yolen, Vice-President of Planned Parenthood of Southern New England, 30% of the patients who visit PPFA use Medicaid.  According to a fact sheet published by PPFA last September, the organization serves over 5 million men and women annually.

Many people view this attack against family planning programs, and specifically against PPFA, as a win for anti-abortion advocates.  Douglas Johnson, legislative director of National Right to Life legislative, stated,  “This landmark vote demonstrates that most House members now recognize Planned Parenthood is a hyper-political, under-regulated, out-of-control mega-marketer of abortion as a method of birth control.   However, Section 1008 of the Title X statute bars the use of federal funding “to promote or encourage abortion as a method of family planning.”  Also, only a small portion of PPFA’s funding is used in abortion-related services.  According to PPFA, abortions are 3% of the total services provided by the organization.

The most significant and devastating effects of these cuts are that  low-income women and men who use organizations like PPFA for general health purposes.   According to PPFA, 60% of women who receive medical care from these organizations use these clinics as their primary source of health care.    New York City Mayor Michael Bloomberg stated, “These proposals have nothing to do with being fiscally responsible…Instead, these proposals would have serious consequences for women’s health in New York City and across the nation.  Removing funding for women’s health clinics through these proposals will likely increase the spread of sexually transmitted diseases, increase the number of women with cervical and breast cancers who are not diagnosed until the cancers are in late stages, and increase unintended pregnancies among women.””

Despite the House’s enthusiasm for defunding Title X and PPFA, this amendment will probably fail in the Democratically-controlled Senate.  And even if the amendment somehow made it to President Obama’s desk, he will probably veto the legislation.  Obama has previously supported family services.  For instance, in one of his first acts in office, Obama lifted the Bush era “gag rule.”  Last week, Obama spoke in favor of PPFA and the work they do.  Right now, however, there is real fear that the Republican House and the Democrat Senate will butt heads over this 2012 budget, including these defunding measures, and shut down the government.

Ohio’s “Heartbeat Bill”

This Valentine’s Day, Republican Ohio State Representative Lynn Wachtmann is expected to introduce the most restrictive anti-abortion bill in the country.  The measure, entitled the “Heartbeat Bill,” would prohibit abortions once there is evidence of a fetal heartbeat.  No consensus exists in the medical community as to when a heartbeat can be detected (some sources state as early as 18 days after conception while more conservative estimates are around 4 weeks).  The time frame advocated in this piece of legislation is clearly in violation of  the third trimester line drawn by the Supreme Court in Roe v. Wade. However, in Planned Parenthood of Southeastern PA v. Casey, the Court specifically rejected the trimester framework stating, “we do not consider [it] to be part of the essential holding of Roe.” Under Casey, states may restrict access to abortion if the restriction does not place an “undue burden” on the woman’s ability to seek an abortion “before the fetus attains viability.”   Because Casey does not discuss whether the right to abortion is still a fundamental right under Roe or the level of scrutiny applied when legislation creates an undue burden on the woman (and considering the current makeup of the Court),  state regulation of abortion may be easier to sustain.   For example, the Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart using a rational basis test once determining that the ban does not impose an undue burden.

Obviously, if this bill were to pass and signed into law, (so far, according to Mother Jones, 40 of 99 state legislators have co-sponsored the bill) it would place a substantial obstacle in the path of the woman.   Doing the math–if a heartbeat is detectable 18 days after conception, a woman would be prohibited from procuring an abortion within one week of missing her regular menstrual cycle.   Considering the weight of the decision, the cost of abortion, the limited access to clinics in this country, the inaccuracy of pregnancy confirmations, and all the other hardships pregnant women face, limiting the time frame to one week is a substantial obstacle in the woman’s path.  Furthermore, a 4-week-old fetus  is clearly not viable.  It is smaller than a grain of rice and looks like this.

The question now is whether “undue burden” will remain the standard.  Justice Thomas, joined by Justice Scalia, stated in his Gonzales concurrence, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, have no basis in the Constitution.”  Justices Roberts and Alito probably agree.  Justice Kennedy, who joined the plurality in Casey and wrote the Gonzales opinion, is the swing vote.

The Intersection of Race, Class and Abortion Politics

Dr. Kermit Gosnell, a Philadelphia abortion provider, has been charged with eight counts of murder. It is important to note that he is charged with killing newborn babies, as well as a woman he overmedicated. Ironically, he was being investigated for dispensing illegal drug prescriptions, but when authorities visited his clinic, The Women’s Medical Society, they encountered what a witness described as “a house of horrors”, which then led to a yearlong investigation of the clinic. The end result was an almost 300-page grand-jury report .

What is most interesting is that this doctor’s main patients were low-income women of color and immigrant women. It does not sound like a stretch of the imagination to wonder if he’s been able to get away with his “torture chamber” for as long as he has because of the neighborhood he was in and the desperate nature of the women who came to him. This is not to imply that wealthy or middle-class women might not find themselves with a pregnancy they do not want to carry to term, just that they might have more options and probably would not rely on Dr. Gosnell.  According to District Attorney Seth Williams, when a more affluent or white woman had an appointment, she was brought to a cleaner, more presentable portion of the clinic than the patients of color or poor patients.

I am interested in this case not because I believe abortions are “wrong” or “bad,” but because of what the allegations (if proved true) show about who has access to quality and safe healthcare(including, but not limited to, abortions) and who does not. The issue here is that Dr. Gosnell was NOT performing the medically and legally sanctioned forms of abortion (up to the 3rd trimester), but in fact all Dr. Gosnell was doing was inducing premature labor, then killing the premature baby. In Roe v. Wade , the Supreme Court held that a woman has a constitutional right to an abortion up to the viability stage, which is medically determined at 24 weeks. It seems evident Dr. Gosnell was not doing first or second trimester abortions. While the trial will hopefully bring closure to a horrid situation, it exposes issues that hopefully the feminist and legal community of the 21st century can address-namely, reproductive violence, which is a threat to all women.

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