Women fought bravely and tirelessly for decades for the right to choose (of course, there were also many who fought to deny women this right, and continue to do so in the reemerging pro-life movement) leading up to the landmark Supreme Court case Roe v. Wade, but it wasn’t until the women’s liberation movement of the 1960s and 70s that reproductive rights really became a focus of mainstream feminism. Then finally, in 1973, abortion was legalized in the U.S. based on the protection of the Fourteenth Amendment. But that was far from the end of the story. In the 46 intervening years, there has been a massive effort—by anti-abortion groups, activists, and legislators alike—to undermine the ruling.
A lesser-known but (arguably) equally important abortion case is Planned Parenthood v. Casey, which in 1992 introduced the undue burden standard that state laws are now evaluated under. This standard allows for states to regulate abortion so long as they don’t impose an “undue burden” on women seeking one. In other words, states can enforce some restrictions (e.g. mandatory waiting periods, parental notification/approval for minors); placing too many obstacles in a woman’s path, however, constitutes an undue burden and is unconstitutional. Predictably, the line between what’s considered a due or undue burden can get blurry and states have taken advantage of this ambiguity by pushing for stricter and stricter abortion laws over the years, particularly since 2010.
Many states have slowly and systematically chipped away at Roe by passing what are sometimes referred to as TRAP (Targeted Regulation of Abortion Providers) laws. Ostensibly designed to make abortion clinics safer for women, these laws enforce excessively strict standards that serve no true medical purpose. They mandate clinics obtain admitting privileges to local hospitals (effectively giving veto power to institutions that may not support a woman’s right to choose), meet stringent building and location requirements (oftentimes preventing abortion clinics from being near schools, leaving them with no choice but to relocate), and limit government funding. Thus, in effect, TRAP laws make it harder for clinics to stay operational. In North Carolina, abortion clinics must meet 18 different physical requirements, have a nurse on duty at all times, even when their services aren’t needed or there are other medical personnel available, and comply with ambulatory surgical center standards. Even clinics that don’t provide surgical abortions are required to meet these standards. Inevitably, they are forced to shut down when they are unable to undertake such costly renovations.
Then there is the N.C. Women’s Right to Know (WRTK) Act. This act enforces a 24-hour waiting period and also requires abortion providers to “counsel” women with state-prescribed information on pregnancy, abortion procedures and risks, birth control, and government services available if they decide to carry to term. Many medical providers, however, have a negative view of the act, believing it interferes with establishing trust and rapport with clients. Others criticize WRTK for shaming and discouraging women from getting an abortion. Additionally, women seeking an abortion are forced to get an ultrasound, which can be emotionally fraught and for some induce strong feelings of guilt, shame, sadness, or fear.
After President Trump’s appointment of Brett Kavanaugh, we can expect many anti-abortion groups to appeal to the now conservative-leaning Supreme Court in the hopes of overturning Roe v. Wade. However, such a ruling would certainly be viewed unfavorably by the public, as 58% of Americans today say abortion should be legal in all or most cases while only 37% say it should be illegal in all or most cases, according to the Pew Research Center. Anti-abortion groups often use other statistics to bolster their argument (some of which are outright false, others misleading). It’s worth noting that levels of support for abortion rights vary greatly depending on how the questions themselves are phrased. Questions like “Do you think Roe v. Wade should be upheld?” generate different results than “Do you think abortion should be a right?.” Generally, questions measuring support for the legality of abortion yield higher percentages than those measuring attitudes towards the morality of abortion. In other words, those who believe women should have the option to an abortion do not believe they would choose to have an abortion themselves. Religious affiliation, race, political ideology, and education level all play a significant role in people’s attitudes.
Over the past several years, the groundwork has been laid to take abortion rights away and the Supreme Court is now poised to overturn Roe v. Wade altogether which would return abortion rights to the states and have far-reaching consequences, disproportionately impacting women of color and women living in conservative and rural areas. This would undo decades of progress made in the 20th century and set the stage for an emerging public health crisis.