A New Threat to the Right to Abortion - Bonnie Steinbock, PhD
March 21, 2018
Bonnie Steinbock, PhD
Professor, The Bioethics Program of Clarkson University and the Icahn School of Medicine
Professor Emeritus, Department of Philosophy, SUNY Albany
Mississippi has just passed a law, the Gestational Age Act, which bans almost all abortions after 15 weeks of pregnancy. This clearly contradicts Roe v. Wade, which held that states may not ban abortions before viability (when the fetus can survive outside the womb), usually between 24 and 26 weeks. The Supreme Court has upheld Roe's precedent numerous times, most recently in the 2016 case, Whole Women's Health v. Hellerstadt. Governor Phil Bryant of Mississippi said that by signing the bill into law, he was saving lives.
It might be thought that the new law will have little effect, aside from symbolic appeal to anti-abortion voters. After all, nearly 90 percent of all abortions nationwide are performed in the first 12 weeks of pregnancy.
At the same time, some women do seek abortions after the first trimester. One reason why a woman might delay having an abortion is that she cannot find a clinic that performs them, and will have to travel to get one. In 2014 (the latest year for which there is data), 90 percent of counties in the U.S. lacked an abortion provider. In Mississippi, 99 percent of counties had no clinics that provided abortions, and 91 percent of Mississippi women lived in those counties.
Another reason why women may delay getting an abortion is the cost. While 17 states allow Medicaid to pay for abortions, in Mississippi Medicaid only pays for abortions if they are necessary to save the life of the pregnant woman, or in cases of rape or incest. This is also true for women who get health insurance on the state exchange under the Affordable Care Act. The new law is even more restrictive, as it does not provide exceptions for rape or incest.
So, if an abortion is not necessary to save the woman's life (and most are not), the woman is probably going to have to pay for it herself. The average abortion patient pays $470 for a first trimester procedure, an amount that is not prohibitive for middle-class women. However, someone who lives from paycheck to paycheck will probably need some time to raise the money, which might put her after the 15-week limit.
The Gestational Age Act is just one more attempt by anti-abortion activists to whittle away the right to abortion. Both North Dakota and Ohio have passed to outlaw abortion after a fetal heartbeat is detected, as early as 6 weeks gestation. The North Dakota law was struck down by federal judges, and the Supreme Court refused to hear it. In December 2016, Ohio Gov. Kasich refused to sign that state’s heartbeat bill, saying that it would cause taxpayers to have to foot the bill for expensive court challenges, which they would lose, since the bill was clearly unconstitutional.
Other states have passed so-called fetal sentience laws, such West Virginia's "Pain-Cable Unborn Child Protection Act," which banned abortion after 20 weeks, on the ground that the fetus can feel pain at that point, a contention rejected by most obstetricians. The consensus is that a fetus is not sufficiently developed neurologically to experience pain until at least the end of the second trimester.
In any event, the constitutional law on abortion is not based on fetal sentience, but on viability. That being the case, one wonders why groups like NARAL and Planned Parenthood have not sought to challenge state laws that ban abortion prior to 24 weeks. The answer one activist gave me is that they don't want to rock the boat. If Supreme Court eventually agrees to hear one of these cases, it could overturn Roe v. Wade.
Justice Ginsburg is 85, Justice Kennedy is 81, and Justice Breyer is 79. It is quite possible that Trump will get to appoint another justice, who will likely be even more conservative than Gorsuch. Even if the Court does not overturn Roe, out of respect for stare decisis, a conservative majority could uphold restrictions on abortion, thus eviscerating Roe. Perhaps pro-lifers are passing laws like Mississippi's Gestational Age Act precisely in order to goad abortion rights activists into challenging them. That could pose a serious threat to the right to abortion, even if most abortions occur well before the cut-off.