The Supreme Court ruling on BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC. has now opened up the precedent (ignoring how narrowly tailored the ruling was to only contraception) that under the RFRA, even if its a compelling government interest, the state cannot mandate any firm with sincere religious beliefs to carry out a requirement, so long as the government can pick up the slack? It seems like the least restrictive means will always be making the government do it instead and not restrict at all anyone’s religious beliefs.
On page 46 of the opinion, Alito writes: “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”
This certainly leaves open the possibility that the Court could rule differently on the “least restrictive means” issue in the future, but his language in section V-B, which discusses the “least restrictive means” test, seems to indicate that it is a difficult standard to pass. On page 41 of the opinion, he indicates that “the most straightforward way of [meeting the least restrictive means test] would be for the Government to assume the cost.” He also says that “HHS has not shown … that this is not a viable alternative.” This seems to indicate that if such a challenge were to come up regarding vaccination or blood transfusions, or whatever else, the burden would be on the Department of Health and Human Services to show that it would be impractical for the Government to cover the cost. That would be quite the burden for the Government to prove.
Ginsberg seems to agree with that reading in her dissent. On page 29 on the dissent, she writes, “And where is the stopping point to the ‘let the government pay’ alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, … or according women equal pay for substantially similar work…? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?” In addition to indicating that the Court’s logic could prove problematic in the future, she asserts that it is flawed at present, saying, “In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.”
I agree with Justice Ginsberg on many points here, especially the last few pages of her dissent. Justice Alito attempts to narrow his ruling as much as possible, but leaves a lot of questions unanswered as to the basis for his narrow ruling. To me, the most compelling arguments come from sections III-4 and IV (pages 27-35) of Ginsberg’s dissent. She basically asserts that the Court’s ruling has much broader implications than it intends, and poses quite a few questions about the basis for the narrow ruling.
I am also inclined to agree with her reasoning that the Court should have no business in determining which religious views are legitimate and which are not, and that religious exemptions from generally applicable law should be reserved for groups that are organized “for a religious purpose” and/or “engaged primarily in carrying out that religious purpose”.
The Supreme Court ruling can be found here: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Justice Ginsburg’s dissent here: http://www.scribd.com/mobile/doc/231974154
The following is an excerpt from the “Abortion” chapter of Our Bodies, Ourselves for the New Century.
HISTORY OF ABORTION
Over several centuries and in different cultures, there is a rich history of women helping each other to abort. Until the late 1800s, women healers in Western Europe and the U.S. provided abortions and trained other women to do so, without legal prohibitions.
The State didn’t prohibit abortion until the 19th century, nor did the Church lead in this new repression. In 1803, Britain first passed antiabortion laws, which then became stricter throughout the century. The U.S. followed as individual states began to outlaw abortion. By 1880, most abortions were illegal in the U.S., except those “necessary to save the life of the woman.” But the tradition of women’s right to early abortion was rooted in U.S. society by then; abortionists continued to practice openly with public support, and juries refused to convict them.
Abortion became a crime and a sin for several reasons. A trend of humanitarian reform in the mid-19th century broadened liberal support for criminalization, because at that time abortion was a dangerous procedure done with crude methods, few antiseptics, and high mortality rates. But this alone cannot explain the attack on abortion. For instance, other risky surgical techniques were considered necessary for people’s health and welfare and were not prohibited. “Protecting” women from the dangers of abortion was actually meant to control them and restrict them to their traditional child-bearing role. Antiabortion legislation was part of an antifeminist backlash to the growing movements for suffrage, voluntary motherhood, and other women’s rights in the 19th century. *For more information, see Linda Gordon’s Woman’s Body, Woman’s Right, rev. ed. (New York: Penguin Books, 1990).
At the same time, male doctors were tightening their control over the medical profession. Doctors considered midwives, who attended births and performed abortions as part of their regular practice, a threat to their own economic and social power. The medical establishment actively took up the antiabortion cause in the second half of the 19th century as part of its effort to eliminate midwives.
Finally, with the declining birth rate among whites in the late 1800s, the U.S. government and the eugenics movement warned against the danger of “race suicide” and urged white, native-born women to reproduce. Budding industrial capitalism relied on women to be unpaid household workers, low-paid menial workers, reproducers, and socializers of the next generation of workers. Without legal abortion, women found it more difficult to resist the limitations of these roles.
Then, as now, making abortion illegal neither eliminated the need for abortion nor prevented its practice. In the 1890s, doctors estimated that there were two million abortions a year in the U.S. (compared with one and a half million today). Women who are determined not to carry an unwanted pregnancy have always found some way to try to abort. All too often, they have resorted to dangerous, sometimes deadly methods, such as inserting knitting needles or coat hangers into the vagina and uterus, douching with dangerous solutions like lye, or swallowing strong drugs or chemicals. The coat hanger has become a symbol of the desperation of millions of women who have risked death to end a pregnancy. When these attempts harmed them, it was hard for women to obtain medical treatment; when these methods failed, women still had to find an abortionist.
Many of us do not know what it was like to need an abortion before legalization. Women who could afford to pay skilled doctors or go to another country had the safest and easiest abortions. Most women found it difficult if not impossible to arrange and pay for abortions in medical settings.
With one exception, the doctors whom I asked for an abortion treated me with contempt, their attitudes ranging from hostile to insulting. One said to me, “You tramps like to break the rules, but when you get caught you all come crawling for help in the same way.”
The secret world of illegal abortion was mostly frightening and expensive. Although there were skilled and dedicated laywomen and doctors who performed safe, illegal abortions, most illegal abortionists, doctors, and those who claimed to be doctors cared only about being well rewarded for their trouble. In the 1960s, abortionists often turned women away if they could not pay $1,000 or more in cash. Some male abortionists insisted on having sexual relations before the abortion.
Abortionists emphasized speed and their own protection. They often didn’t use anesthesia because it took too long for women to recover, and they wanted women out of the office as quickly as possible. Some abortionists were rough and sadistic. Almost no one took adequate precautions against hemorrhage or infection.
Typically, the abortionist would forbid the woman to contact him or her again. Often she wouldn’t know his or her real name. If a complication occurred, harassment by the law was a frightening possibility. The need for secrecy isolated women having abortions and those providing them.
In the 1950s, about a million illegal abortions a year were performed in the U.S., and over a thousand women died each year as a result. Women who were victims of botched or unsanitary abortions came in desperation to hospital emergency wards, where some died of widespread abdominal infections. Many women who recovered from such infections found themselves sterile or chronically and painfully ill. The enormous emotional stress often lasted a long time.
Poor women and women of color ran the greatest risks with illegal abortions. In 1969, 75% of the women who died from abortions (most of them illegal) were women of color. Of all legal abortions in that year, 90% were performed on white private patients.
The Push for Legal Abortion
In the 1960s, inspired by the civil rights and antiwar movements, women began to fight more actively for their rights. The fast-growing women’s movement took the taboo subject of abortion to the public. Rage, pain, and fear burst out in demonstrations and speakouts as women burdened by years of secrecy got up in front of strangers to talk about their illegal abortions. Women marched and rallied and lobbied for abortion on demand. Civil liberties groups and liberal clergy joined in these efforts to support women.
Reform came gradually. A few states liberalized abortion laws, allowing women abortions in certain circumstances (e.g., pregnancy resulting from rape or incest, being under 15 years of age) but leaving the decision up to doctors and hospitals. Costs were still high and few women actually benefited.
In 1970, New York State went further, with a law that allowed abortion on demand through the 24th week from the LMP if it was done in a medical facility by a doctor. A few other states passed similar laws. Women who could afford it flocked to the few places where abortions were legal. Feminist networks offered support, loans, and referrals and fought to keep prices down. But for every woman who managed to get to New York, many others with limited financial resources or mobility did not. Illegal abortion was still common. The fight continued; several cases before the Supreme Court urged the repeal of all restrictive state laws.
On January 22, 1973, the U.S. Supreme Court, in the famous Roe v. Wadedecision, stated that the “right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court held that through the end of the first trimester of pregnancy, only a pregnant woman and her doctor have the legal right to make the decision about an abortion. States can restrict second-trimester abortions only in the interest of the woman’s safety. Protection of a “viable fetus” (able to survive outside the womb) is allowed only during the third trimester. If a pregnant woman’s life or health is endangered, she cannot be forced to continue the pregnancy.
Abortion After Legalization
Though Roe v. Wade left a lot of power to doctors and to government, it was an important victory for women. Although the decision did not guarantee that women would be able to get abortions when they wanted to, legalization and the growing consciousness of women’s needs brought better, safer abortion services. For the women who had access to legal abortions, severe infections, fever, and hemorrhaging from illegal or self- induced abortions became a thing of the past. Women health care workers improved their abortion techniques. Some commercial clinics hired feminist abortion activists to do counseling. Local women’s groups set up public referral services, and women in some areas organized women-controlled nonprofit abortion facilities. These efforts turned out to be just the beginning of a longer struggle to preserve legal abortion and to make it accessible to all women.
Although legalization greatly lowered the cost of abortion, it still left millions of women in the U.S., especially women of color and young, rural women, and/or women with low incomes, without access to safe, affordable abortions. State regulations and funding have varied widely, and second-trimester abortions are costly. Even when federal Medicaid funds paid for abortions, fewer than 20% of all public county and city hospitals actually provided them. This meant that about 40% of U.S. women never benefited from liberalized abortion laws.
During the late 1970s and early 1980s, feminist health centers around the country provided low-cost abortions that emphasized quality of care, and they maintained political involvement in the reproductive rights movement. Competition from other abortion providers, harassment by the IRS, and a profit- oriented economy made their survival difficult. By the early 1990s, only 20 to 30 of these centers remained.
Eroding Abortion Rights: After Roe v. Wade
When the Supreme Court legalized abortion in 1973, the antiabortion forces, led initially by the Catholic Church hierarchy, began a serious mobilization using a variety of political tactics including pastoral plans, political lobbying, campaigning, public relations, papal encyclicals, and picketing abortion clinics. The Church hierarchy does not truly represent the views of U.S. Catholics on this issue or the practice of Catholic women, who have abortions at a rate slightly higher than the national average for all women.
Other religious groups, like the Mormons and some representatives of Jewish orthodoxy, have traditionally opposed abortion. In the 1980s, rapidly growing fundamentalist Christian groups, which overlap with the New Right and “right- to-life” organizations, were among the most visible boosters of the antiabortion movement. These antiabortion groups talk as if all truly religious and moral people disapprove of abortion. This is not true now and never has been.
The long-range goal of the antiabortion movement is to outlaw abortion. Their short-range strategy has been to attack access to abortion, and they have had successes. The most vulnerable women–young women; women with low incomes, of whom a disproportionate number are women of color; all women who depend on the government for their health care–have borne the brunt of these attacks on abortion rights.
The antiabortion movement’s first victory, a major setback to abortion rights, came in July 1976, when Congress passed the Hyde Amendment banning Medicaid funding for abortion unless a woman’s life was in danger. Following the federal government, many states stopped funding “medically unnecessary” abortions. The result was immediate in terms of harm and discrimination against women living in poverty. In October 1977, Rosie Jimeaanez, a Texas woman, died from an illegal abortion in Mexico, after Texas stopped funding Medicaid abortions.
It is impossible to count the number of women who have been harmed by the Hyde Amendment, but before Hyde, one-third of all abortions were Medicaid funded: 294,000 women per year. (Another 133,000 Medicaid-eligible women who needed abortions were unable to gain access to public funding for the procedure.) Without state funding, many women with unwanted pregnancies are forced to have babies, be sterilized, or have abortions using money needed for food, rent, clothing, and other necessities.
Although a broad spectrum of groups fought against the Hyde Amendment, countering this attack on women who lack financial resources was not a priority of the pro-choice movement. There was no mass mobilization or public outcry. In the long run, this hurt the pro-choice movement, as the attack on Medicaid funding was the first victory in the antiabortion movement’s campaign to deny access to abortion for all women.
Young women’s rights have been a particular target of the antiabortion movement. About 40% of the one million teens who become pregnant annually choose abortion. Parental involvement laws, requiring that minors seeking abortions either notify their parents or receive parental consent, affect millions of young women. As of early 1997, 35 states have these laws; 23 states enforce them. In some states, a physician is required to notify at least one parent either in person, by phone, or in writing. Health care providers face loss of license and sometimes criminal penalties for failure to comply.
Antiabortion forces have also used illegal and increasingly violent tactics, including harassment, terrorism, violence, and murder. Since the early 1980s, clinics and providers have been targets of violence. Over 80% of all abortion providers have been picketed or seriously harassed. Doctors and other workers have been the object of death threats, and clinics have been subject to chemical attacks (for example, butyric acid), arson, bomb threats, invasions, and blockades. In the late 1980s, a group called Operation Rescue initiated a strategy of civil disobedience by blockading clinic entrances and getting arrested. There were thousands of arrests nationwide as clinics increasingly became political battlefields.
In the 1990s, antiabortionists increasingly turned to harassment of individual doctors and their families, picketing their homes, following them, and circulating “Wanted” posters. Over 200 clinics have been bombed. After 1992, the violence became deadly. The murder of two doctors and an escort at a clinic in Pensacola, Florida, was followed by the murder of two women receptionists at clinics in Brookline, Massachusetts. A health care provider spoke about the impact of the violence:
The fear of violence has become part of the lives of every abortion provider in the country. As doctors, we are being warned not to open big envelopes with no return addresses in case a mail bomb is enclosed. I know colleagues who have had their homes picketed and their children threatened. Some wear bullet-proof vests and have remote starters for their cars. Even going to work and facing the disapproving looks from co-workers–isolation and marginalization from colleagues is part of it.
The antiabortion movement continues to mount new campaigns on many fronts. Most recently, it has aggressively put out the idea that abortion increases the risk of breast cancer. In January 1997, the results of a Danish study, the largest to date (involving one and a half million women), showed that there is no connection.s3 Unlike previous studies, this one did not rely on interviews and women’s reports but instead used data obtained from population registries about both abortion and breast cancer. Despite the lack of medical evidence and the fact that the scientific community does not recognize any link, the antiabortion movement continues to stir up fears about abortion and breast cancer.
Legal but Out of Reach for Many Women
We have learned that legalization is not enough to ensure that abortions will be available to all women who want and need them. In addition to a lack of facilities and trained providers, burdensome legal restrictions, including parental consent or notification laws for minors and mandatory waiting periods, create significant obstacles. A minor who has been refused consent by a parent may have to go through an intimidating and time-consuming judicial hearing. Mandatory waiting periods may require a woman to miss extra days of work because she must go to the clinic not once, but twice, to obtain an abortion. If travel is required, this can make the whole procedure unaffordable. In other words, for millions of women, youth, race, and economic circumstances together with the lack of accessible services–especially for later abortions–translate into daunting barriers, forcing some women to resort to unsafe and illegal abortions and self-abortions.
WEAKENING THE CONSTITUTIONAL PROTECTION FOR ABORTION
When in 1980 the Supreme Court upheld the Hyde Amendment, it began eroding the constitutional protection for abortion rights. Since then, there have been other severe blows. In Webster v. Reproductive Health Services (1989), the Court opened the door to new state restrictions on abortion. In Hodgson v. Minnesota (1990), the Court upheld one of the strictest parental notification laws in the country.
These trends were further codified in Planned Parenthood v. Casey, a 1992 decision upholding a highly restrictive Pennsylvania law that included mandatory waiting periods and mandatory biased counseling. Two frightening themes emerged in the Casey decision. First, the Court sanctioned the view that government may regulate the health care of pregnant women to protect fetal life from the moment of conception so long as it does not “unduly burden” access to an abortion. Second, the Court showed little concern for the severe impact of state restrictions on women with few financial resources.
In the aftermath of Casey, many states have passed similar restrictions, which have the effect of limiting access to abortion, especially for women with low incomes, teenage women, and women of color.
These infringements on abortion access have curtailed the abortion rights of millions of women. In the face of the unrelenting efforts of the antiabortion movement, those of us who believe that women should make their own reproductive decisions will have to become involved in the ongoing struggle to preserve and expand abortion rights.
REPRODUCTIVE FREEDOM VS. POPULATION CONTROL
While most women’s health groups see the fight for abortion rights in the context of defending the rights of all women to make their own decisions about reproduction, not all advocates of abortion rights share this understanding. Some view legal abortion and contraception as tools of population control.
Advocates of population control blame overpopulation for a range of problems, from global poverty to ethnic conflict and environmental degradation. Historically, this type of thinking has led to a range of coercive fertility control policies that target Third World women. These include sterilization without a woman’s knowledge or consent; the use of economic incentives to “encourage” sterilization, a practice that undermines the very notion of reproductive choice; the distribution and sometimes coercive or unsafe use of contraceptive methods, often without appropriate information; the denial of abortion services; and sometimes coercive abortion. For example, HIV-positive women in the U.S. (who are overwhelmingly women of color) are often pressured to have abortions, though only 20 to 25% of their children will be HIV-positive and new treatments during pregnancy have reduced the likelihood even further.
Women with few economic resources, especially women of color in the U.S. and throughout the world, have been the primary targets of population control policies. For example, although abortion has become increasingly less accessible in the U.S., sterilization remains all too available for women of color. The federal government stopped funding abortions in 1977, but it continues to pay for sterilizations. During the 1970s, women’s health activists exposed various forms of sterilization abuse (see section on sterilization in chapter 13, Birth Control). Since the 1980s, advocates have fought against new policies that coerce women with low incomes into using Norplant, a long-term hormonal contraceptive.
In the Third World, in addition to the widespread unavailability of desired contraceptives, there is a long history of coercive fertility control, primarily funded and inspired by developed countries, especially the U.S. (see chapter 26, The Global Politics of Women and Health, for the international dimensions of population control).
The right to abortion is part of every woman’s right to control her reproductive choices and her own life. We must reject all efforts to coerce women’s reproductive decisions. The goals of reproductive rights activists must encompass the right to have children as well as the right not to.
ABORTION ACCESS IN THE U.S.
- It is conservatively estimated that one in five Medicaid-eligible women who want an abortion cannot obtain one.
- In the U.S., 84% of all counties have no abortion services; of rural counties, 95% have no services.
- Nine in ten abortion providers are located in metropolitan areas.
- Only 17 states fund abortions.
- Only 12% of OB/GYN residency programs train in first-trimester abortions; only 7% in second-trimester abortions.
- Abortion is the most common OB/GYN surgical procedure; yet, almost half of graduating OB/GYN residents have never performed a first-trimester abortion.
- Thirty-nine states have parental involvement laws requiring minors to notify and/or obtain the consent of their parents in order to obtain an abortion.
- Twenty-one states require state-directed counseling before a woman may obtain an abortion. (This is often called “informed consent”; some critics call it a “biased information requirement.”)
- Many states require women seeking abortions to receive scripted lectures on fetal development, prenatal care, and adoption.
- Twelve states currently enforce mandatory waiting periods following state- directed counseling; this can result in long delays and higher costs.
- (Seven more states have delay laws which are enjoined–i.e., not enforced due to court action at the federal or state level.)
Note: for sources on these statistics, please consult the book’s notes at the end of this chapter.
Unsafe abortion is a major cause of death and health complications for women of child-bearing age. Whether or not an abortion is safe is determined in part by the legal status and restrictions, but also by medical practice, administrative requirements, the availability of trained practitioners, and facilities, funding, and public attitudes.
While it is difficult to get reliable data on illegal and unsafe abortion, several well-known organizations and researchers, including the World Health Organization, the Alan Guttmacher Institute, and Family Health International, make the following estimates:
- Worldwide, 20 million unsafe abortions are performed annually. This equals one unsafe abortion for every ten pregnancies and one unsafe abortion for every seven births.
- Ninety percent of unsafe abortions are in developing countries.
- One-third of all abortions worldwide are illegal. More than two-thirds of countries in the Southern Hemisphere have no access to safe, legal abortion.
- Estimates of the number of women who die worldwide from unsafe abortions each year range from 70,000 to 200,000. This means that between 13 and 20% of all maternal deaths are due to unsafe abortion–in some areas of the world, half of all maternal deaths. Of these deaths, 99% are in the developing world, and most are preventable.
- Half of all abortions take place outside the health care system.
- One-third of women seeking care for abortion complications are under the age of 20.
- About 40% of the world’s population has access to legal abortion (almost all in Europe, the former Soviet Union, and North America), although laws often require the consent of parents, state committees, or physicians.
- Worldwide, 21% of women may obtain legal abortions for social or economic reasons.
- Sixteen percent of women have access only when a woman’s health is at risk or in cases of rape, incest, or fetal defects.
- Five percent have access only in cases of rape, incest, or life endangerment.
- Eighteen percent have access only for life endangerment.