Guarding Vulnerable Rights: California Must Commit Anew to Ensuring Access To Reproductive Freedom for All

Roe was a strong 7-2 decision, holding that the federal Constitution protects each woman’s childbearing decision, and that the government may not restrict so intimate a choice without the most compelling of reasons. Roe was consistent with the Court’s privacy precedents, particularly Griswold v. Connecticut, 318 U.S. 479 (1965), striking down laws outlawing contraception. A growing consensus developed after Griswold that birth control was a decision for families, not government officials. It was reasonable to predict that abortion, too, would become a matter debated in religious communities, not political arenas.

Moreover, since Roe and Griswold unshackled abortion and contraception from criminal prohibition, the future promised great advances in reproductive technology. Surely most people would have predicted in January 1973 that control over childbearing in 21st century America would be medically uncomplicated and politically uncontroversial.

Thirty years later, technology has expanded and constitutional protection has contracted. While women today have an extraordinary range of reproductive health options—new birth control devices such as patches, rings and injections, post-coital emergency contraception and very early non-surgical abortion techniques—their reproductive rights are in serious jeopardy. While scientists are working hard to give women reproductive control, politicians are working harder to limit women’s access to and even information about ideologically disfavored health options. The barriers they erect do not affect educated, affluent women, but poor, young, less educated and rural women throughout America.

The result is that, increasingly, control over childbearing, so critical to women’s education and employment, is reserved for the privileged. Advocates are right to worry that Roe itself may be reversed, for a single new Justice could give anti-choice forces a majority to overturn the decision. However, no court decision overturning Roe is necessary to make abortion out of reach for many women. Supreme Court decisions following Roe have already stripped them of meaningful reproductive freedom.

The first vulnerable population successfully targeted by anti-choice forces was poor women. The United States Supreme Court allowed the government to eliminate even medically necessary abortion from the Medicaid program providing health care to the indigent. Harris v. McRae, 448 U.S. 297 (1980);); Maher v. Roe, 432 U.S. 464 (1977). Today, 28 states exclude abortion from medical assistance programs except in cases of life endangerment, rape or incest. Indigent women with in those states struggle, and sacrifice such basic necessities as food to obtain money for abortions. Some have children, and, in many states, welfare policies do not provide assistance to newborns.

The second vulnerable population to lose federal constitutional protection for abortion was teenagers. The Supreme Court upheld laws requiring minors to obtain parental or court consent for abortion. Hodgson v. Minnesota, 497 U.S. 417 (1990); H.L. v. Matheson, 450 U.S. 398 (1981); Bellotti v. Baird, 443 U.S. 662 (1979). Thirty-two states now require parental notification or consent for abortion. Teenagers from unhappy families in those states go through stressful, humiliating court procedures, travel to other states, and ultimately obtain later, more complicated abortions. Some have babies when they are not ready to become parents. Educational and childcare policies in many states do not help the young mothers adequately so that they may complete their schooling.

The Supreme Court gave the green light to states to make all women’s access to abortion more difficult in 1992. Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992). In a compromise decision that rejected administration briefs to overturn Roe, the Court downgraded childbearing decisions from a fundamental right. Casey allows government to enact laws to discourage women from choosing abortion. Governments have eagerly exercised their new authority. According to NARAL Pro-Choice America, states have enacted 335 anti-choice measures since 1995—34 in 2002 alone. These legal obstacles—waiting periods, biased counseling, draconian requirements for abortion providers—make abortion more expensive and inaccessible. Today, 87% of American counties lack abortion providers.

The women who suffer from the inaccessibility of abortion, of course, are not those with cars and flexible work schedules. The women who cannot navigate through the maze to obtain legal abortions are those who lack political clout. We have replicated the very inequality that existed when abortion was illegal: before Roe, women with passports and airplane tickets obtained safe, professional abortions, while poor and minority women ended up in hospital wards. Roe held out a promise of equality in reproductive freedom. That equality has never been achieved.
The assault on reproductive freedom extends beyond abortion. Zealous anti-choice forces have also targeted birth control: they seek to pass laws making it harder for teenagers to obtain contraception and for all women to obtain emergency contraception, which is responsible for 40% in the decline in abortions in recent years. Anti-choice forces have also taken aim at sex education. The current administration is channeling more than 100 million dollars in tax funds to “abstinence-only” sex education, a curriculum that denies young people basic information about their bodies and often includes medical misinformation to discourage sexual relationships before marriage.

Full reproductive freedom—comprehensive education, health care and resources for every person who chooses parenthood to have healthy children--has never existed in America. California, the most progressive state in reproductive autonomy today, has made impressive gains: bills passed in recent years expand contraception coverage in health plans, require abortion training, guarantee clinic safety, ensure the availability of emergency contraception to sexual assault victims, and require medical accuracy in sex education. The Reproductive Privacy Act, effective this month, codifies Roe principles and expands access to early nonsurgical abortions. Even California has an unfinished agenda to ensure that children are wanted, healthy and educated. But women in this state are extremely fortunate to have state constitutional protection for reproductive autonomy, a court system that enforces our privacy rights, and a pro-choice Governor, Legislature and Attorney General.

It is time, therefore, for Californians to become engaged in protecting reproductive freedom nationally. An anti-choice Congress and White House are poised to enact even more draconian restrictions on abortion, which will imperil the health, the future, and even the lives of vulnerable women. As we celebrate Roe’s 30th anniversary, we must recommit ourselves to protecting all women’s reproductive freedom.