The Precarious Nature of Abortion Access in the United States and the Americas

Jane Doe, a 17-year old undocumented immigrant, trekked to the United States from Central America. Known as Jane Doe in court proceedings only, the teenager dreamt of “studying nursing, and someday, caring for senior citizens.” Doe was detained at the US-Mexico border and it was there, after undergoing a medical examination, that she discovered she was pregnant. The 17-year old asked for an abortion. In 1973, under Roe v. Wade, The Supreme Court of the United States found that the constitutional right to privacy is “broad enough enough to encompass a woman’s decision on whether or not to terminate her pregnancy.” Yet, the Trump administration blocked Doe from accessing an abortion by keeping her as an undocumented immigrant in federal custody. It would take weeks of delay and a federal appeals court ruling before Doe could exercise her constitutional rights.

In this May 14, 2015 photo, a 13-year-old girl holds her one-month-old baby at a shelter for troubled children in Ciudad del Este, Paraguay. The girl said she was raped by her stepfather from the time she was 10 and became pregnant when she was 12. Another pregnant girl, age 11, whose case drew international scorn when Paraguay’s government denied her an abortion, gave birth on Thursday, Aug. 13, 2015. The girl was allegedly raped and impregnated by her stepfather when she was 10. In Paraguay, abortion is banned except when the mother’s life is in danger. (AP Photo/Jorge Saenz, File)
This treatment of women and girls in relation to abortion access is in no way unique to the United States. In 2015, an 11-year old Paraguayan girl – a child – was raped by her step-father and denied an abortion. The case first came to light in May 2015, when the girl in question was 10-years old and 22 weeks pregnant. The young girl in question gave birth by C-section at just 11 years old. According to government figures, 684 Paraguayan girls aged 10-14 gave birth in 2014, and that number is likely to be higher today, most of them victims of sex abuse and rape. 

If you consider the wide attack on women’s access and right to an abortion in the United States and in the Americas, then these cases no longer seem unusual. Since 2010, states in the U.S. have introduced 231 abortion restrictions. According to the Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the US and globally, as of 2014, 5-7 per cent of American women lived in states classified as hostile or extremely hostile to abortion. This includes the entire US South and much of the Midwest. Despite conventional wisdom that abortion access and rights is entrenched in the United States’ constitution, the future of abortion in the United States is bleak. While the situation at home in may not be as extreme as that in Latin America and the Caribbean, the United States is heading in the direction of a total dismantling of policies and structures that protect women’s access to abortion.

Abortion access and rights for women has over time turned from a private matter into a public issue. The debate around the issue of legal abortion remains complicated. Only 25 per cent of Americans believe abortion should be legal in all cases, compared with the 33 per cent of Americans who believe it should be legal in most, but not all cases. Nearly 20 per cent of Americans believe abortion should be illegal in all circumstances.

A man walks past the former site of a clinic that offered abortions in El Paso, Texas, Friday, Oct. 3, 2014. Abortion services for many Texas women require a round trip of more than 200 miles, or a border-crossing into Mexico or New Mexico after federal appellate judges allowed full implementation of a law that has closed more than 80 percent of Texas’ abortion clinics in 2014. (AP Photo/Juan Carlos Llorca)
Increasingly, pro-choice advocates are framing abortion as a basic medical procedure that should be a human right for all. Yet, there have been an increasing number of legal challenges to abortion rights in the United States. Rights Advocates, legislators, religious leaders and the public, amongst others, have a huge stake in whether or not abortion continues to be legal for American women. President Donald J. Trump, for instance, vowed to appoint an anti-choice justice on the Supreme Court in order to override Roe v. Wade. With both a Republican majority in the House and the Senate, legislators are threatening to defund Planned Parenthood and introduce a 20-week ban on abortion. Last year alone, 18 states introduced 50 new restrictions on abortion access. Anti-choice groups are using more propaganda and employing arguments around fetal viability being as early as 24 weeks. When you consider all this, and that abortion doctors in providers in the United States are often subject to deadly attacks carried out by anti-choice advocates, and the number of states with only one abortion clinic is rising, the future of abortion access and rights in the United States becomes very bleak. 

Looking further away from home reminds us that yet again, the situation around abortion access and rights in the United States is similar in Latin America and the Caribbean. There, 97 per cent of women of childbearing age live in a country where abortions are heavily restricted or banned. Abortion remains illegal under any circumstances in the Dominican Republic, El Salvador, Haití, Honduras, Nicaragua and Suriname. But there is hope for the region. This summer, Chile passed a bill to make abortion legal in instances of rape, fetal abnormalities and if the mother’s life is at risk. And in Argentina, the legislature has adopted a number of reproductive right reforms in recent years. While the Catholic Church remains one of the most vociferous anti-choice advocates, the number of organizations working to influence public policy in the region has increased significantly. These organizations are adopting new strategies, using social media, targeted political action and placing pressure on judicial institutions.

It might appear like there are some promising changes to come about in Latin America and the Caribbean. But, the issue around unsafe abortions remains an issue of grave concern. In Latin America, where strict restrictions are placed on abortion access or banned altogether, 6.5 million women had induced abortions every year between 2010-2014. Annually, an estimated 760,000 women of the 6.5 million who had unsafe abortions were treated for complications related to the unsafe procedure, and at least 900 of these women died.

The danger in placing heavy restrictions on abortion access, as numerous studies have shown, is that these restrictions do not prevent abortions from happening, but rather, endanger women’s health. In regions where women cannot access safe, legal, abortion on demand, they are more likely to employ illegal, unsafe methods. These unsafe procedures which are often not carried out in accordance with the recommended guidelines, put women’s lives and their well-being at risk. Abortion access and rights for women is a human right’s issue and an urgent matter. We should not live in a society where women die because they do not want to conceive – and that is why this important fight continues.

The Normalization of Abortion Restrictions in the United States

Erika A. Christensen is a patient advocate for reproductive rights. At 32 weeks, Christensen discovered the fetus she was carrying was unviable – it was “incompatible with life. ”The laws in the state of New York meant that Christensen could not have a third-trimester abortion, even though the fetus’ diagnosis was terminal. And so she was forced to fly to Boulder, Colorado, to get a shot that would start the process of a third-trimester abortion, before flying back to New York to finish the procedure. While Christensen’s case is horrifying, it is by no means unique. Instead, it is a classic example of how state restrictions on abortion access dehumanize women, limit their undeniable human rights and affect their mental and physical health.

Pat Thompson displayed a sign supporting Roe v. Wade at a rally, held by Planned Parenthood, commemorating the 45th anniversary of the landmark Supreme Court decision at the Capitol Monday, Jan. 22, 2018, in Sacramento, Calif. The 1973 landmark decision by the United States Supreme Court affirmed a woman’s right to have an abortion. (AP Photo/Rich Pedroncelli)
In recent decades, it has become normalized for lawmakers and states to introduce restrictions on abortion access and rights for women. In the last five years alone, states have enacted 334 abortion restrictions. What has changed since the election of Donald J. Trump, a candidate that pledged his presidency would bring an end to Roe v. Wade, is that the culture enabling and justifying these attacks on abortion rights feels much stronger. For instance, in October, the Trump administration formally backed a House bill that would have led to the banning of abortions after 20 weeks. The administration “applaud[ed] the House of Representatives for continuing its efforts to secure critical pro-life protections.” In November, the United States Congress held a hearing on a bill that would ban abortion after six weeks’ gestation. This bill, the ‘Heartbeat Protection Act of 2017’ would be dangerous for American women as it severely limits their access to a termination, makes no exceptions for the health of the mother or those pregnant from rape or incest, and criminalizes doctors who perform the procedure after the six week mark. While the bill did not pass, it did have 169 cosponsors in the House, and all but one were Republican.  

Currently, federal funding cannot be used to cover the cost of abortion except in rare circumstances. Funding is not allowed through a “rider” attached to other bills that Congress must approve annually. Under this administration, the rider, otherwise known as the Hyde Amendment, could become permanent law, the result of which would ban abortion services through Medicaid, federal government heath plans, and plans covered by the Affordable Care Act. And if Trump were to appoint two anti-choice justices during his presidency, then Roe could be overturned. When the president campaigned on the basis that he would put an end to safe, legal, abortion on demand for American women, it is no surprise that under his administration, we are seeing more emboldened attacks on Roe v. Wade. This is despite the fact that many of these restrictions undermine Roe v. Wade, which found that the constitutional right to privacy is “broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.”

Trump’s vision would ensure that abortion became a privilege only for the rich, but millions of American women – even with the provisions enshrined by Roe – are already living in this dystopian reality. Today, many American women are having to travel long distances to access abortions. Women are subject to mandatory waiting periods that require unnecessary trips, sometimes across state lines, to the few clinics that are open. Costs related to travel and the procedure can be dangerous for women who are poor and live in rural areas, or in states with only one abortion clinic. And women in the United States, women like Jennifer Whalen, a mother who bought abortion pills online for her teenage daughter because the closest abortion clinic to her was 75 miles away, have already been charged with crimes relating to pregnancy and abortion.

Pro-abortion and anti-abortion protestors rally outside the Supreme Court in Washington, Wednesday, Jan. 22, 2014. Thousands of abortion opponents are facing wind chills in the single digits to rally and march on Capitol Hill to protest legalized abortion, with a signal of support from Pope Francis. (AP Photo/Susan Walsh)
Earlier in June, Delaware’s Governor signed into a law a bill which ensured abortion remained legal in the state and codified at the state level the provisions outlined in the 1973 historic Supreme Court decision of Roe v. Wade. The decision taken by Delaware’s Governor to codify Roe v. Wade is particularly significant given the current US climate where the normalization of abortion restricts for American women continues with more energy under this administration. It was a landmark case and the first of such since President Donald Trump was elected on a promise to overturn the aforementioned ruling during his term. The law, as Elizabeth Nash of the Guttmacher Institute which tracks abortion policy said, “says to [women] that you are important, you have the ability to decide when to have a child and the state supports you in making the decision that is best for you and your family.”  

While Delaware’s Governor is working to protect abortion access for women within the state, state representatives like Mike Reynolds of Oklahoma are on a crusade to save “unborn children,” and to send strong moral messages about the wrongness of abortion. Activists, lawmakers, the public and the media frame the discussions around abortion access and rights as being two-dimensional – as being black and white. But, as scholar Michelle Oberman, author of Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma argues, the issue is much more complicated. In an interview with the New Republic, Oberman says, “[o]f the many things dividing the United States, none seems more salient than the divide between pro-life and pro-choice forces. At the heart of the dispute is the assumption that, if Roe is reversed and abortion becomes illegal, things will change. We talk about banning abortion as if we all understand how things will change if abortion becomes a crime.”

It remains a remote possibility that Roe could be eroded; but abortion rights will continue to be under attack during this administration. In the meantime, it has become the norm for laws, states and abortion opponents to continue to attack the affordability and availability of abortion, rather than its legality. The focus needs to be on preventing the incremental erasure of every America’s woman’s constitutional and human right to a legal abortion.



Reproductive Rights as Human Rights

In September 1995, Hillary Clinton was in attendance as First Lady at the  United Nations Fourth World Conference on Women in Beijing. In her seminal speech, she declared, “If there is one message that echoes forth from this conference, let it be that human rights are women’s rights and women’s rights are human rights, once and for all.” It’s a view that Bryan, an administrator at an abortion clinic in Texas shares: “Women’s rights are human rights…I definitely agree with that. I’ve read a lot of books and met physicians who were providing when abortion was not legal, and talked to them about septic abortions, things they saw in that time period We are fighting a human rights battle because the consequences of illegal abortion are so great…”

Cheryl Bianchi wears an American flag as a cape while marching along the street during a Women’s March, Saturday, Jan. 20, 2018, in Los Angeles. On the anniversary of President Donald Trump’s inauguration, people participating in rallies and marches in the U.S. and around the world Saturday denounced his views on immigration, abortion, LGBT rights, women’s rights and more. (AP Photo/Jae C. Hong)
The human rights framework introduced in the 1970s after the passing of Roe was critical in establishing the right to choose for all women, but it’s proven to be limited under this current political climate. For decades, the framework has shaped the debate around legal abortion as a reproductive rights issue inextricably linked to human rights. In 1973, under Roe v. Wade, The Supreme Court of the United States found that the constitutional right to privacy is “broad enough enough to encompass a woman’s decision on whether or not to terminate her pregnancy.” Framing abortion and reproductive rights as a privacy and thus human rights issue meant that women were given the right to access the reproductive healthcare they needed, and the right to decide for themselves whether or not they wanted children. The reproductive rights framework includes several fundamental human rights: the right to health, the right to life, information, education, quality and privacy, as well as freedom from discrimination. Crucially, the right to health includes, “the right to attain the highest standard of sexual and reproductive health” – and that incorporates the right to a safe, legal abortion. 

However, this framework might no longer work; it might not go far enough in this current climate. Today, especially under the Trump administration, it might seem redundant to chime that reproductive rights are human rights. Are reproductive rights really human rights if the House in Mississippi just pushed through a 15 week abortion ban  – the earliest in the US?

While many harmful policies for women’s reproductive rights predate the Trump administration, his administration and the Republican-led Congress have made moves to curtail hard-fought access and rights for women’s reproductive health and family planning services. Kinsey Hasstedt, a senior policy manager at the Guttmacher Institute said, “Coming into year two, these lawmakers are very clearly intent on continuing this all-out assault… And there are lots of reasons to be concerned.”

Renee Bracey Sherman of Chicago, Ill. celebrates at the Supreme Court in Washington, Monday, June 27, 2016, after the court struck down Texas’ widely replicated regulation of abortion clinics .The justices voted 5-3 in favor of Texas clinics that had argued the regulations were a thinly veiled attempt to make it harder for women to get an abortion in the nation’s second-most populous state. (AP Photo/Evan Vucci)
The problem with the human rights framework, which aligns abortion and reproductive rights as a human rights issue, is that it does not deter the current administration from taking a hard line on women’s reproductive rights. Even with advocates framing this as a human rights issue, the administration has emphasized rolling back on birth control and abortion access. The Trump administration’s draft plan for Health and Human Services, which was first released in October said the federal health agency would be “serving and protecting Americans at every stage of life, beginning at conception.” Traditionally, language around life starting at conception is kept for religious groups and anti-choice advocates, not documents issued by the US government that will help guide federal policy. Additionally, while the current administration has failed to repeal the Affordable Care Act, it has chipped away at Medicaid which could have detrimental effects on women’s reproductive health and rights. Medicaid is of insurmountable importance for women’s reproductive health, paying for low-income births and covering abortion with state dollars. If the government makes it harder for people to access Medicaid, it could result in fewer women accessing reproductive healthcare. Finally, the Trump administration and conservatives in Congress remain focused on defunding Planned Parenthood. 

While it’s unclear what the next stage of the abortion debate it, it remains that women’s bodies are a political battleground in the United States. It shouldn’t be the case that after the passing of Roe v. Wade in 1973, women’s access and rights would still be under attack. What we’ve seen – from laws making abortion access harder to anti-choice advocates weaponizing the right to life – is that the 1970s framework cannot stand up to the current political ties. Perhaps it’s time we abandon the framework of abortion and reproductive rights as a human rights issue, and instead begin to recognize it as a constitutional right, to ensure that women in the United States can continue to enjoy their privacy and hard-won right to abortion.


The Arc of Reproductive Justice in the United States

The reality of abortion access today in the United States is very different to what it was like in a pre-Roe v. Wade era. While women accessing abortions today might be doing so in a politically charged environment, where women’s bodies and reproductive health is public business, the situation is still much better than it was in the 1960s. 

Planned Parenthood Rally, NYC 2011. Credit: Charlotte Cooper
In an interview with Bustle, Melissa Grant, COO of Bustle said, “Before the legalization of abortion, women were known to have tried various herbs, poisons, pushing of foreign objects into the cervix, and even beatings to cause an abortion or miscarriage.” She continued, “In the 1960s, it is estimated that thousands of people attempted to abort with these unsafe methods. Hospitals regularly saw women in ‘septic abortion wards,’ where they would die of hemorrhage or infection after an incomplete attempt to self-abort.” There were also race and class barriers at the time. According to the Guttmacher Institute, in the 1960s, one in four white women who sought an abortion died as a result of it, compared to one in two non-white women and Puerto-Rican women. But, by 1973, a national Supreme Court case, Roe v. Wade, made abortion legal. The Supreme Court of the United States found that the constitutional right to privacy is “broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.” 

Yet, despite the constitutional right to abortion owed to all American women, abortion rights remain under attack. The Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the US and abroad found that as of 2014, 57 per cent of American women lived in states classified as hostile or extremely hostile to abortion. And since 2010, states have introduced 231 abortion restrictions. As a result, even though abortion is a constitutional right – it continues being undermined – thus, advocacy groups are critical in fighting for abortion to remain legal.

Photo credit: American Life League
The Center for Reproductive Rights is one group at the forefront of protecting abortion rights in the United States.  In 2016, the organization rallied around upholding Roe, in case the then anticipated Trump administration attempted to overthrow the most critical reproductive rights case in US recent history. Further to that, the Center for Reproductive Rights filed a lawsuit on behalf of five Texas abortion clinics in the Whole Woman’s Health v. Hellerstedt ccase which challenged a law requiring clinics to have admitting privileges at hospitals in order to operate. In June that year, the Supreme court ruled in favor of Whole Woman’s Health — an impressive win against laws aimed at shutting down abortion clinics. 

Immediately following Roe, abortion rights and pro-choice advocates dedicated themselves to protecting the Supreme Court ruling under the banner of choice, appealing broadly to the right to privacy that was at the heart of the Supreme Court decision. These advocates did not prioritize enough the threats to access, but instead, appealed to the aspects considered in the Supreme Court decision with the belief that this approach would appeal to the widest groups of voters. And so, they established this notion of “choice” which we see in so much abortion discourse today.

Since Roe, pro-choice groups have been a loud voice in Congress and to the general public. These groups have focused on holding onto the rights won by Roe, concentrating on legislations and clear messaging. Others have worked on expanding the access to abortion for women across the United States. For many, the focus has been on providing reproductive healthcare to women, including abortions. While the legal right to abortions remains the same, mainstream pro-choice groups have failed at stopping the ongoing attacks on abortion and abortion access. Within the movement, there is a general consensus that there needs to be a reframing of the human rights framework, but no agreement has been made on the new frame for activists and pro-choice groups to pursue.

While the movement has advanced, the issue around including the voices of women of color and low-income women remains a problem for most pro-choice advocacy groups. What we’ve seen is women of color advocating for themselves and low-income women and placing their needs at the core of a broader reproductive rights agenda. For instance, in 1992, Trust Black Women rallied around a racist billboard campaign that depicted women of color as dangerous threats to their children. Further to that, the group also mobilized to defeat proposed legislation which restricted abortion based on the race of the fetus.

The future of abortion rights activism and advocacy will be major in upholding the Roe v. Wade Supreme Court decision. While the activism has been at the forefront, advocates acknowledge that the conservative agenda is attacking women’s rights and sbility to control their lives in a myriad of ways. There needs to be new efforts for working across organizations, to not leave marginalized women behind, and to place reproductive rights at the heart of the struggle for social justice and human rights.

Fighting for Abortion Rights in the South

In July 2013, research from the Pew Research Center revealed just how large the regional divide around abortion is. While 75 percent of New England residents believed that abortion should be legal in all or most cases, 52 percent of residents of the South Central states (Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee and Texas) believed the opposite. 

Three years later, in June 2016, a momentous Supreme Court in Texas ruling found one of the United States’ harshest abortion rulings to be unconstitutional. The case, Whole Woman’s Health v. Hellerstedt, struck down a Texas law which asked that abortion clinics meet expensive, hospital-like building requirements, as well as demanding that abortion providers have patient-admitting privileges with local hospitals. Even though the Whole Woman’s Health v. Hellerstedt case was local to Texas, these local cases have the potential to establish precedents regionally. What we’re seeing now is that the battle to secure safe abortion is being fought on local and egional levels, with big cases happening at the national level. Abortion advocates are trying to shape the state law – not federal law – because it is at the state level that we see the constant and deliberate erasure of the enshrined constitutional right. This battle becomes regional if we understand that states serve as “laborities” of experimentation for other states: they make similar decisions, look to each other for support and guidance. So, if one state begins to erode on abortion access – it can quickly become a legal matter.

Rally in front of the Supreme Court during the Whole Woman’s Health v. Hellerstedt hearing, March 2, 2016
Anti-choice legislators said the law was necessary to protect and safeguard women’s health, but the law was mostly viewed as a means to shut clinics. The Supreme Court ruling signaled for Texas – and for other states – that the law was an unconstitutional burden on a woman’s constitutional right to access an abortion. In response to this ruling, Nancy Northup, the president of the legal group, the Center for Reproductive Rights, whose attorneys argued on behalf of the clinics said, “Without question, today’s ruling was a game changer. This decision will be critical in the many, many legal challenges taking place around the country.” 

After the case, Alabama stopped its fights to force admitting privileges on providers, which would have resulted in the closing of four out of the five clinics in the state. A day after the ruling, the Supreme Court declined a case for a similar admitting privileges law coming out of Wisconsin, which would have shut one of the state’s three clinics. At the time of the ruling, pro-choice campaigners spoke positively about how in the coming months, lower courts were likely to strike down nearly identical cases in Arkansas, Louisiana and Oklahoma, where the measures threatened to close all but one clinic in the respective states. Providers in the aforementioned states shared their relief, too. “I felt like nothing was certain until it was a done deal at the court,” said Willie Parker, the chair of Physicians for Reproductive Health. Parker, the sole abortion provider in Mississippi, and a provider in Alabama, has struggled to obtain admitting privileges in both states. He concluded, “Today, I’m extremely pleased.”

Photo credit: American Life League
With over 200 legal restrictions introduced in the last five years aimed at limiting access to abortion, the focus remains not on new human rights protections for abortion, but rather, protecting this constitutional right. Speaking about the Texas victory, executive vice-president of Planned Parenthood, Dawn Laguens said, “This victory gives us the opportunity to march state by state, legislature by legislature, rule by rule, bill by bill, and reclaim women’s health and rights across the country, 100%, no burdens on any woman, anywhere.” But the reality is that achieving such is going to be very difficult. Twenty nine states already regulate abortion facilities (to varying degrees), and another fifteen require providers or affiliates to have admitting privileges. All abortion providers in Tennessee and the sole provider in North Dakota have complied with requirements for providers to have hospital admitting privileges. To overturn these older restrictions that have passed will be complicated, as Priscilla Smith at Yale Law School argues, because if these abortion clinics are able to operate, they may not have standing to bring forth a lawsuit. Meanwhile, hundreds of abortion restrictions already passed remain insulated and secure regardless of the court’s ruling. Critically, other bans, such as that on abortion after 20 weeks or laws that require minors to have permission from their parents from an abortion remain contested – and able to pass – regardless of this monumental victory. 

Worryingly, as Parker, the Mississippi abortion provider said, “I full well expect that people who are convinced ideologically that they are right to restrict access to abortion, they will not stop because of this setback.” And thus, the work continues to ensure that women in the United States do not lose this hard-fought right.