Right to Choose?
During the past two years, the right to choose has experienced an unprecedented attack at the state level. Several states have passed laws that limit access to abortions or effectively ban abortions completely. For example, North Dakota recently enacted a law that bans abortion once a fetal heartbeat is detectable—as early as six weeks into pregnancy. Arkansas adopted a similar measure, banning abortion as early as twelve weeks. These so-called “fetal heartbeat” bills prohibit abortion well before viability—the point up to which the Supreme Court in Roe v. Wade ruled that the government cannot prohibit abortion.
States across the country have embraced fetal heartbeat bills and variety of other approaches designed to attack freedom of choice. Some state legislatures have embraced Targeted Regulation of Abortion Providers (TRAP). TRAP laws single-out abortion providers and impose unnecessary medical regulations, such as specific dimensions for procedure rooms, under the guise of health and safety. These laws are calculated to put abortion providers out of business.
Staff Attorney for the ACLU Reproductive Freedom Project, Alexa Kolbi-Molinas, explained that “all of these measures—whether they are laws that [shut] down clinics, make a woman get unnecessary ultrasounds, or force her to make extra trips to clinics—are designed to make it impossible for a woman to get an abortion.”
To learn more about this phenomenon, Fordham Law Students for Reproductive Justice (LSRJ) hosted a panel discussion on Thursday, April 18. The event featured prominent reproductive rights advocates, including Kolbi-Molinas, and Stephanie Toti, Senior Staff Attorney of the U.S. Legal Program at the Center of Reproductive Rights and Adjunct Associated Professor at Fordham Law School.
Both attorneys agreed that these laws were unconstitutional. “Recent attempts by state legislatures to chip away at access to abortion services—and in some cases to ban abortion altogether—impose unconstitutional burdens on women’s fundamental rights and serve to relegate women to the status of second-class citizens,” said Toti.
Despite the consensus among legal scholars that many of these laws will not survive constitutional challenges, state legislatures across the country continue to propose, debate and enact similar measures. This begs the question, what do state legislatures and the anti-choice community hope to gain? Are the legislators simply trying to appease conservative supporters?
During the panel discussion, the advocates speculated about the strategy. One possibility is that the proliferation of these unconstitutional laws may create the appearance that there is more support for outright bans on abortion than there actually is, and therefore, further stigmatize the procedure. Another is the hope that one of these laws might be appealed all the way up to the Supreme Court and that a conservative bench will grant a writ of certiorari.
Whatever the motivations, the effect is that the myriad of unconstitutional laws keeps reproductive rights lawyers constantly on the defensive. The response of the pro-choice community ranges from litigation challenging the laws as facially unconstitutional, to helping local abortion clinics comply with the new regulations.
Given the endless need for nationwide litigation, the moderator posed the question to the panelists: “What would an affirmative pro-choice strategy look like?”
Professor Toti suggested that the pro-choice community has made positive gains by affecting the narrative, invoking the popular rhetoric concerning the “War on Women.” The Center for Reproductive Rights has also developed the Draw the Line campaign, which encourages individuals to sign a reproductive bill of rights.
Toti added, “I am hopeful that these offensive laws will be struck down by the courts and that, moving forward, voters in these states will demand better from their elected officials.”
Kolbi-Molinas agreed. “People need to say enough is enough and stop politicians from interfering in our most personal private decisions.”
–Linda Jordan, contributor
*The author is a member of Fordham Law’s LSRJ and helped coordinate the event on April 18th.