Are women losing their abortion rights?

Each year brings more controversies on” Roe v Wade “or “Doe v Bolton” but 2019 appears to be a critical one for abortion rights, with an unprecedented surge of abortion bans sweeping across the United States. Recently many state legislators have enacted abortions bans in at least 12 states. This confirms, since 1973 an effort to undermine abortion rights. If the Supreme Court has affirmed the right to abortion by modifying the legal frame, in holding the constitutional right to abortion, it is by allowing the states to be able to perform it before any fetal viability can be proven. Even if, post viability abortion is performed, there must be exceptions to protect the health of the mother and the baby. Court cases upheld these principles in 2016 in “Whole Woman’s Health v Hellerstedt to be able to examine the evidences and to expose the benefits of a given restriction and the burden it imposes.

Roe v Wade was a landmark decision of the Supreme Court in which the court ruled that the due process Clause of the Fourteenth Amendment of the US Constitution provides a fundamental “right to privacy” that protect woman’s liberty to choose whether or not to have an abortion. It was decided in 1973 and ruled that this right was not absolute and must be balanced against the government interests in protecting women health. During the first trimester, governments could not prohibit abortions at all. During the second trimester, governments could require reasonable health regulations and during the third trimester of Pregnancy, abortion could be prohibited entirely so long as the laws contained exceptions for cases pertinent to the life or the health of the mother. Finally, the court classified the right to choose to have an abortion as fundamental which mean the court will have to evaluate under scrutiny at a highest level of judicial review. Roe v Wade prompted a national debate that continues today on the legality itself of abortion. Many challenged the law since it became the law of the land.

In the last 50 years, states have enacted more than 1200 abortions of their constitutional rights. Some have been struck down by the courts while the others required patients and providers to examine the laws and regulations. It is fair to say that each state has at least one abortion restriction in which they have during the course of a pregnancy, provided or restricted both private or public insurances to covert the medical act of abortion. They have also requested abortion counseling in case where inaccurate or misleading information may have been presented while the pregnant patient is waiting for the procedure. These regulations vary from state to state and often family planning clinics services maybe inexistent or not accessible to such patients in the Midwest or the southwest of the country. This is why the Crisis Pregnancy Centers were created but they have provided misleading or false information about abortion and even have produced the adverse effects because they are trying to steer people toward continuing their pregnancies.

Let us review some state policies abortion rights:

It is believed that the United States of America has 64 million women in reproductive age between 15 and 44. Nearly 43% (29 million) live in states with high abortion restriction in contrast to 22% (15 million) living in states supportive to abortion rights. In these states, clinics are often found in cities but women living in rural area may have to travel far to see a physician. This brings also financial and logistic hurdles on the top of the legal problems. If a typical abortion is sought at 10 weeks of gestation, it is estimated that one can spend around 500 dollars, covered or not by insurance, but often to keep their confidentiality, most will prefer paying out of pocket for the care. More, added to this burden, the patient may have to take time off, from work or arrange for child care because 60% of parents having an abortion have already a child. The problem is more serious when the clinics deal with low income patients of different ethnicity often black or white, especially if the patient is a teenager.

So far, the opponents of abortion rights have looked for restrictions designed to make it more difficult to obtain an abortion while the clinics would keep their doors open. Then, the confirmation of Justice Brett Kavanaugh, in October 2018, to the supreme court, may have triggered around the country, a desire to challenge the law. Suddenly, we are able to feel a growing hostility against the abortion rights, around the nation and the way “Roe v Wade” has been challenged by conservative state legislators. Recently, an unprecedented number of unconstitutional abortion bans have been signed into law providing a total or a near total abortion ban. Clearly, this appears to represent a green light to the court system to overturn the law. Conservative States like Georgia, Indiana. Kentucky, Missouri, Arkansas, Utah have already enacted bans on abortion methods such like dilatation and evacuation after 14 weeks. or abortion performed for reasons like the Sex of the fetus or even a Genetic anomaly. Multiple other states have followed in the ban of all abortions in Alabama, abortion after 6 weeks, in Louisiana, Georgia, Kentucky, Ohio, Mississippi, abortion after 8 weeks, in Missouri, abortion after 18 weeks, in Arkansas and Utah.  Fortunately, none of these laws have already taken effect because they represent legal challenges and other courts have prevented them to be implicated. Let us keep in mind, that, in fact 32 states have introduced law challenging abortion in the year 2019.

Abortions remain legal in 50 states despite of all controversies. Few states have also taken action to protect abortion rights: Illinois has enacted a law protecting abortion rights as well as the right for pregnancy care, contraception and sterilization. New York also enacted the right to abortion up to fetal viability if patient ‘s life is at risk. Vermont also enacted similar legislature protecting the right to abortion and the right to obtain or decline sterilization or contraception, up to fetal viability. Maine will require Medicaid and private insurances, soon, to cover abortions services and will allow Physician-Assistants (PA’s), Nurse Practitioners (NP’s) to provide abortion care. In Nevada, the state’s criminal abortion law was repealed.

Around the world, countries like Chili, Ireland and South Korea have all legalized abortion and many other countries appear to be willing to follow the trend. The United States has clearly moved a little backward against proponents for legalization on abortion.  No matter the ways the law expands, our role as clinician will be to provide the best comprehensible reproductive healthcare possible. Perhaps, the Supreme court of the United States of America or authorities in the board of Medicine will have to define the term “fetus” and re-define its viability. Recently, I have discussed extensively in one of the AMHE Newsletter, the way to reach extra- uterine maturity with artificial wombs. More and more cases are reported on viability of fetus at early 20’s weeks or less and so many have reached maturity artificially. Extra uterine ways of achieving maturity in the fetus life is at the tip of the actual technology. Advances in science have allowed already fetus to reach prematurity and survive via an extra-uterine womb until near maturity.

Religion has always played an important role in the life of the one opting for an abortion. The Buddhism has rejected the termination of a pregnancy because they believe that Life begins at the conception. The Dalai Lama has called this act, “Negative”. In the Christianity there are some disagreement at the beginning of times but no explicit prohibition. Catholic oppose to the deliberate act of termination of a pregnancy and believe it to be immoral. Early Christians considered it as a sin at all age. Other consider that an embryo does not have a soul at conception.  Hinduism condemns abortion under all forms. Islam accepts that a pregnancy can be terminate prior to 120 days. Judaism believed that if it is necessary for the women, it should be allowed. Many orthodox Jews oppose to abortion practice. Protestants, Methodists, Church of Christ and Evangelical Lutheran Church adepts are more permissive of abortion practice. Sikhism forbids the act of abortion. The Unitarian Universalist church is the only one supportive of it, fully. The Wiccans considered the act of abortions as a spiritual decision that should be free from political interference.

The constitutional law of the United States since Roe v Wade has defined “Viability” as the potential of the fetus to survive outside the uterus after natural or induced birth. We have seen that Fetal viability is dependent on fetal organ maturity and environmental conditions. Viability also exists as a function of biomedical and technological capacities which can be different around the world. We can almost conclude that there is not, at the present time, any uniform gestational age that defines Viability. Therefore, there is no sharp limit in the development or gestational age or weight at which we can conclude that a human fetus becomes viable. If 24 weeks of gestation has allowed babies to survive in the mid 2005 years, especially when artificial womb is used, -babies weighting a little more than 500 g (17.6) ounces) of weight have consistently shown a high survival rate. One can expect then, that the Supreme Court will be more incline to define Maturity of a fetus at a gestational age of 24 weeks, weighting more than 500 g (17.6 ounces).

If abortion opponents succeed to overturn or undermine Roe V Wade, we may see a geopolitical division in the country, when residents from Southwestern and Midwestern states will have opposing views to the one living in the North-Eastern or Western States This will impact the country when one will be seeking for services. No matter, many women will claim that this is their right to maintain the autonomy and the dignity of their body. Let us wait for the debates to come.

Maxime Coles MD

References:

New England Journal of Medicine, June 19, 2019/ Gummacher Institute, Washington DC, at NEJM.org.

Roe v Wade, 410 US, 113 (1973)

Mears, William, Franken, Bob (January 22, 2003). “30 years after ruling, ambiguity, anxiety surround abortion debate” CNN The Roe and Doe rulings in 46 states^

Harris Interactive, “US Attitudes Toward Roe v Wade”. The Wall Street Journal Online, (may 4, 2006)

Ademek, Raymond. “Abortion Pills”, Public Opinion Quarterly Vol 42, No 3 (Autumn 1976), pp. 411-413

Brenorowicz, GH (Jan 2001). Limits of viability and its enhancement “Early Pregnancy”: 5(1): pp49-50

Roe v Wade, 410 US 113 (1973) Viability is usually placed at about seven months (28 weeks) but can occur earlier at 24 weeks

Royal College of Obstetricians, Gynecologist UK (April 2001): Further Issues Relating to late Abortion, Fetal Viability and Registration of Births and Deaths.” Royal College of Obstetrician and Gynecologist (5 Nov 2013)

BBC “Religion and Ethics”.

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