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Fighting for Abortion Rights in the South

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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.

June Eric-Udorie is a T’21 Undergraduate and a 2018 Human Rights Scholar at the Institute.

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