March for Women's Lives rally in Washington in 1992, held as a response to the then-pending US Supreme Court case Planned Parenthood vs Casey ©MARK REINSTEIN/CORBIS VIA GETTY IMAGES

The right to abortion: War of attrition

It has long been under assault in many individual American States. Now Donald Trump's Washington is joining in the attack
February 13, 2017

Throughout most of last year, reproductive rights activists could not have been faulted for believing they had won America’s abortion wars once and for all. In February, Antonin Scalia, the Supreme Court’s most vociferous pro-life justice, died unexpectedly, leaving a court often lodged at 5-4 on social issues in a new 4-4 equipoise. Hillary Clinton was ahead in the polls for the presidential election and it looked like she would soon be able to fill his seat and perhaps two others with pro-choice justices who would then control the court for decades.

Things looked even brighter in late June, with a surprising and resounding victory in the most important case on reproductive rights that the Supreme Court had seen in 25 years. Whole Woman’s Health vs Hellerstedt, decided on a 5-3 margin, struck down onerous regulations in Texas that would have closed all but a few of the state’s abortion clinics. In a definitive opinion siding with the besieged clinics, the court majority insisted that regulations claiming to promote the health interests of women needed demonstrably to help them, and couldn’t just be pretexts for shutting down facilities. It was especially significant because it placed practical defences in front of the theoretical right to an abortion, which has been subject to a remorseless war of attrition in many states, almost since it was first established in the 1970s.

Pro-choice activists dared to feel as if the intractable fight over abortion was shifting in their favour. Such hopes were shattered in November, with the triumph of a billionaire thrice-married playboy who stood for the presidency on the laughable premise that he was a man of deep, conservative religious conviction.

To understand what is likely to happen next, a little history is useful. Ubiquitous 19th-century state laws forbidding abortion (mostly at “quickening,” which happened later in a pregnancy) came under legal assault from feminists and other activists in the 1960s. Individual states began to liberalise and in 1970, New York became the first state to allow abortion on demand. Laws differed state by state when, in the famous 1973 Roe vs Wade ruling, the Supreme Court found a constitutional protection for abortion, depending on the trimester. This sweeping ruling was made on the strength of a right to privacy, controversially ruled to be implicit in the broader right to liberty of the post-Civil War 14th Amendment, which had been passed with an eye to the position of former slaves in the south. Reliance on that amendment, and the location of the right in a gauzy “penumbra” of other rights was a red flag to religious and cultural conservatives. Ever since, both groups have worked tirelessly, mostly but not exclusively at the state level, to chisel away at the implications of Roe.

Pro-life presidents like Ronald Reagan and George W Bush have come and gone without achieving a pro-life majority in the Supreme Court, but that doesn’t mean nothing has changed. Anti-abortion state legislatures and administrations have tried their luck by imposing all manner of restrictions on the availability and affordability of abortion, and then waiting to see at which point the federal courts would say no. While dozens of state initiatives to restrict abortion ended up being struck down, pro-lifers did enjoy occasional success. In 1979, the Supreme Court ruled that states could require parental consent for minors and the following year, it held that Medicaid, the social health programme for families and individuals with limited resources, was not required to fund abortions, which restricted access for poorer women.

But a 1992 Supreme Court ruling—Planned Parenthood vs Casey—opened the floodgates, by upholding stringent anti-abortion practices in Pennsylvania, including mandatory waiting periods and providing women with “information” that was effectively propaganda. The way was clear for any state inclined to render abortion rights ineffectual to impose obstacles in the way of women exercising them. In 2007, Justice Anthony Kennedy went further in a case about so-called “partial birth abortion,” suggesting that states had a role to play in protecting fragile women from regret, and opening the door to all manner of laws that purported to help them make better choices.

Over the last couple of decades, another wave of increasingly effective restrictions has aimed at closing down abortion clinics by imposing disproportionate building and health standards on them, efforts which have reduced the number of abortion providers in several states to just one. This is the wave of restrictions which last year looked as if it might be checked by the Whole Woman’s Health case. But that expectation, like everything else about abortion rights in the United States today, is no longer guaranteed.

So what difference does the arrival of President Donald Trump make? His approach to abortion has been so fickle that you might hope there would be little consistent effect. Having said in 1999 that he was “very pro-choice,” he indicated that he changed his views a few years later. By March 2016, Trump on the campaign trail suggested that women who have abortions should face some sort of legal punishment—then changed his position after public outrage, arguing that doctors should face sanctions instead. As the campaign wore on, his abject lack of qualification to be any sort of sexual moralist became starker. He suggested that sexual assault in the military was the inevitable result of allowing women to serve and then, of course, the notorious tape emerged in which he bragged about his own assaults on women. He looked to be poorly positioned as a moral arbiter of women’s sexual choices. Or perhaps he was, in retrospect, perfectly situated to threaten punishment and control of women in a race against a female candidate.

None of the feminist backlash to Trump stuck, at least not sufficiently to thwart the electoral college victory which leaves reproductive rights exposed to his capricious whims. The first opening came when the death of Justice Scalia was followed by an unprecedented show of Republican obstructionism. The Senate has the constitutional duty to “advise and consent” to the confirmation of a new Justice, but on the very day of Scalia’s death, the Republican majority baldly signalled they would not confirm a new judge nominated by Barack Obama. They insisted that Obama was a “lame duck” president without the authority to fill the vacancy. The opportunistic Trump endorsed this, urging that the Republican leadership must stop Obama with a strategy of “delay, delay, delay.” Senate Republicans simply refused to hold a hearing for Merrick Garland, the moderate Appeals Court veteran Obama tapped to fill the Scalia seat. Democrats hoped this unheard-of subversion would harm Republicans in the voting booth. It did not and by autumn, some Senate Republicans were claiming that if Clinton won, they would hold open the Scalia seat for all four years of her term.

While neither the Supreme Court nor abortion have ever seemed central themes of the Trump world view, he had shored up his standing with the conservative base by picking a running mate who has long been an anti-abortion fanatic. When Governor of Indiana, Vice President Mike Pence played a central role in criminalising and incarcerating women who had abortions. He signed a bill requiring that foetal tissue resulting from abortion should be cremated or buried, with the woman who had the procedure expected to bear the costs of the “funeral.” As the election loomed, Trump doubled down on his hardline anti-abortion stand—releasing a list of 21 prospective Supreme Court nominees that included vocal opponents of abortion, such as federal court of appeals Judge William Pryor, who has called abortion “murder” and referred to the outcome of the Roe case as an “abominable decision.”

When Trump triumphed in November, the GOP also retained control of the Senate. They had campaigned on all-out war over the Supreme Court and had won. Within his first two weeks in office, Trump announced in a prime-time television ceremony that he had tapped Neil Gorsuch, a federal Appeals Court judge who looks to Scalia as his ideological lodestar. Trump says that he wants this new Justice to be confirmed by the Senate by April. While Gorsuch has said little directly about the Roe decision, he has been a passionate defender of religious groups who refused to abide by the contraception mandate of the Affordable Care Act, because they deem (despite medical opinion to the contrary) that many forms of birth control are abortions. Gorsuch has shown tremendous solicitude to the rights of conscience of these religious objectors, and has also written about the value of life in his extensive work on physician-assisted suicide.

In the near term, replacing Scalia with this likely pro-life Justice will not mean the end of legal abortion in the US. If the voting blocs from the Whole Woman’s Health decision hold, there will still be a 5-4 majority for preserving the core ruling of Roe. But Ruth Bader Ginsburg, the court’s feminist icon, is now 83, Anthony Kennedy, its centrist swing voter, is 80 and Stephen Breyer, a liberal appointed by Bill Clinton, is 78. Since 1960, the average retirement age for a Supreme Court Justice is 78. This means Trump may well leave the presidency with a 6-3 or even a 7-2 anti-abortion majority on the court.

Because Republicans still control the Senate, there is little Democrats can do to thwart a Trump nominee. Republicans are eight votes short of the super-majority of 60 that the Senate’s rules require to close down a discussion, so there is still the possibility of a filibuster. To see it off the Republicans may need support from vulnerable Democrats in red states, where a pro-abortion stance could be a liability. Moreover, there are additional risks to a Democratic filibuster of the first Trump nominee. Republicans have the option simply to do away with the filibuster, by forcing a change to the standing rules by simple majority vote—the nuclear option. They have already pledged to do so if Democrats unite to block Gorsuch. At that point, both sides agree, future battles over the Supreme Court will descend from merely ugly to all-out blood sport.

And as was the case with the Muslim ban and the wall with Mexico, Trump moved fast to dispel any doubts that his posturing on abortion rights was a ploy to win the evangelical vote. Interviewed just after the election by CBS’s Lesley Stahl, Trump explained that the court, with his new pro-life appointee on it, would overturn Roe: “I’m pro-life. The judges will be pro-life.”

Supreme Court experts differ on the likelihood that another Trump nominee or two could simply overrule Roe with the stroke of a pen. Some insist that it’s highly likely. Others urge that Roe is an established precedent and has been for over 40 years, and that jurists concerned with institutional stability and integrity would be loath to make such a dramatic and partisan change at a court that relies on public acceptance. Many agree that the Chief Justice, John Roberts, who opposes abortion rights and usually votes with the court’s conservative bloc, is first and foremost an institutionalist who might be disinclined to toss away a 40-year-old precedent just because he now has enough justices to do so.

This takes us back to Trump’s post-election interview with Stahl, when he explained, quite correctly, what would happen if the Supreme Court overturned Roe: “It would go back to the states.” And when Stahl asked whether that meant that in practice, that “some women won’t be able to get an abortion?” Trump responded: “Yeah, well, they’ll perhaps have to go, they’ll have to go to another state.” What Trump was describing is, as we have seen, the emerging status quo in some states, which have already made termination nearly impossible. More regulations could exacerbate that trend very soon.

The Guttmacher Institute reports that 334 abortion laws have been enacted by the states since 2010. In the days after the election, state legislatures rushed to enact new regulations on the premise that Trump’s win had given them a mandate. Texas enacted an Indiana-style rule requiring that all foetal tissue resulting from abortion or miscarriage be cremated or buried. The Ohio legislature rushed through a bill, which Governor John Kasich has signed into law, that bans abortion at 20 weeks after fertilisation, with no exceptions for rape or incest.

The Supreme Court previously ruled that states cannot ban abortion pre-viability, which most experts set at about 24 weeks. For that reason, several of the 20-week bans being pushed have been struck down in federal courts.

Ohio also sought to pass a “heartbeat” bill, prohibiting any abortion after a foetal heartbeat is detected—which happens at around six to eight weeks, often before a woman even knows she is pregnant. Although Governor Kasich wouldn’t go that far and vetoed it, many other state administrations now feel emboldened to turn the clock back to a time before abortion was legal, and—in the process—force the issue before the Supreme Court.

The new laws vary widely from mandatory ultrasound legislation in which women are obliged to look at images of their unwanted foetus, to forced scripts in which physicians must warn mothers of the often medically unproven dangers of termination, to 20-week bans and strictures on clinics. In all cases, however, the intent and effect is to restrict, by closing clinics, delaying abortions and inching the line of viability ever closer to conception. Whether the Supreme Court participates in that effort or merely bats those cases away is almost immaterial for women seeking to terminate a pregnancy in a state that will not allow it.

Before the original Roe decision, wealthy American women were able to procure abortions abroad—it was poor women who were denied choice. Now, even without an outright move towards overturning Roe, the right to abortion is being slowly neutered. Poor and minority women, once again, will bear the brunt: those who cannot afford to take time off work, or procure the necessary childcare to meet a 72-hour waiting period requirement—or, indeed, who cannot find the funds to travel hundreds of miles.

Some states have now used draconian regulation to push abortion service provision to the brink of extinction. Mississippi, for instance, staunchly defends its right to impose regulations that would shutter its last clinic, on the principle that women could just travel elsewhere. The states of Arkansas, Missouri, North Dakota, South Dakota and Wyoming—all geographically bigger than England—are likewise down to a single clinic each. Over one-third of US women of reproductive age currently reside in a county without any abortion provider. All this dovetails with Trump’s theory that in the event of Roe being overturned, women can simply jet to some other fabulous jurisdiction to terminate their pregnancies.

Study after study shows that such a patchwork of regulations falls hardest on the women with the fewest resources. The case of Texas, where clinics were closed en masse when the state first imposed new restrictions in 2013 (the ones that were struck down in Whole Woman’s Health), provides a natural experiment. By forcing doctors performing terminations to get admitting privileges at local hospitals, and demanding that clinics be retrofitted as ambulatory surgical centres, the law ensured that the number of abortion clinics dropped from 41 in 2012 to just 17 in 2015. In most counties the average distance to a clinic increased from 72 to 111 miles. As the Atlantic reported, researchers interviewed 20 women they met at abortion clinics across Texas in 2014: “The women faced steep hurdles at every turn, they found, from making the appointment, to getting to the clinic, to covering the logistics for the multiple visits the state’s laws required. The majority had to make several calls before they could find an open clinic, and one woman had to drive 300 miles to the nearest doctor. Many had to ask friends or relatives for gas money. One had her van break down, forcing her to take a ‘combination of cab, city bus, and Greyhound bus,’ to the clinic. Half the women were already mothers, so they had to ask someone else to watch their kids while they travelled.”

Studies also show that while the official abortion rate decreased by 13 per cent in the year after the Texas law was implemented, the rate of abortions performed in the second-trimester rose by 27 per cent. Second-trimester abortions are more costly and complicated. There was anecdotal evidence of an increase in self-abortions and women travelling to Mexico for them.

"Arkansas, Missouri, North Dakota, South Dakota and Wyoming—all geographically bigger than England—are down to a single clinic each"
Trump has also pledged to make abortion access more difficult at the federal level. His immediate promises, in a letter sent to anti-abortion leaders last autumn, include support for a federal ban on abortion after 20 weeks, and cutting off all federal funding for Planned Parenthood, the country’s largest not-for-profit provider of reproductive services, if it continues to offer abortion services. He has also pledged to make permanent the decades-old Hyde Amendment, which restricts federal Medicaid funding for abortion. And in January, a federal “heartbeat ban” was introduced in Congress, which could even give him the option of signing into law a ban on terminations after six weeks. That would soon result in the Supreme Court ruling on the legality of what would effectively be an all-out federal abortion ban.

Then there are the potentially catastrophic effects of Trump’s promise to repeal the Affordable Care Act—or “Obamacare”—under which health insurance providers are required to cover the cost of birth control. Religious employers have long been fighting against this part of the Act. But if Trump and Congress do repeal it, birth control will again become unaffordable to many Americans who will lose their health insurance. The extent to which the war on abortion has morphed into a war on affordable birth control cannot be understated. And as women lose access to affordable birth control, abortion rates may spike again.

The most imminent threats to abortion are not from Washington, but under the radar at lower levels of government and the courts. While all eyes are focused on the Supreme Court, that body only hears about 70 cases each year; a small proportion of the hundreds of thousands of lawsuits that make their way through the federal judiciary each year. The last stop for most are the federal appeals courts around the country. Trump arrives at the White House with over 100 judicial vacancies on the lower federal bench. Many are the result of the same Senate obstruction met by Merrick Garland this past year. If Trump’s promises about the Supreme Court were any indication, he will soon attempt to fill those spots with stalwart conservative judges who will join him in his war on reproductive freedom.

However, one of the untold stories of Obama’s presidency is his impact on these lower courts. He appointed many progressive judges that have flipped most of the formerly conservative appeals courts to liberal. One study of the 13 federal appellate courts found that nine are now comprised of majority Democratic appointees, compared to just one when Obama took office. This explains why so many of the blatantly unconstitutional state measures have been halted by the federal judiciary.

For the moment, there is one layer of protection in the lower federal courts and seemingly five votes remaining at the Supreme Court. Whether this holds over time, however, will depend on how long Trump lasts—and how long he can thrive, rather than lose support, with his strident anti-abortion positioning.

Pro-choice groups insist there will be payback for the overreach from Trump and state legislatures. Polling suggests that public support for overturning Roe is at about 28 per cent, whereas 69 per cent of Americans say it should not be completely overturned. Progressive causes have reported massive gains in fundraising since the election; over 72,000 donations were cheekily made to Planned Parenthood in the name of Mike Pence, who will receive that number of thank-you notes from the organisation. Reproductive rights activists maintain that women will spearhead a backlash if Trump continues his attack.

Perhaps. The difficulty, however, lies in the “enthusiasm gap.” Most voters may be mostly pro-choice, but more anti-abortion voters are fired up. At the election, voters worried about the composition of the Supreme Court skewed dramatically for Trump. According to CNN’s 2016 exit polling, within that fifth of voters who prioritised the composition of the Supreme Court as a voting issue, 56 per cent voted for Trump, and only 40 per cent for Clinton. For decades, Republicans have been better organised and more motivated about the courts than Democrats. That religious Republicans overwhelmingly supported a man who boasted about committing sexual assault reveals how important the Supreme Court is for the religious right.

So the politics is fraught. And reproductive rights are subject to a multi-pronged attack—taking place in myriad forms, from both state and federal opponents who have been planning this single-mindedly for decades. Battles at the state level have yielded the greatest results in the past two decades. It is entirely possible that while all public attention remains fixed on the Supreme Court and Roe, the actual right to terminate a pregnancy will disappear, state by state, before our very eyes.