The Bulls-eye on Abortion

On May 4, the U.S. House of Representatives voted 251-175 to outlaw taxpayer funding for abortions. The bill, which will now go before the Senate, is the latest in a recent wave of federal and state anti-abortion legislation, with many states passing restrictions—some of them radical—affecting both funding for abortions and the circumstances under which they can be obtained. A new South Dakota law, for example, imposes a 72-hour waiting period and requires a mandatory counseling session at a pregnancy crisis center before a woman can have an abortion. A bill pending in Ohio would ban abortions after a fetal heartbeat is detected—as early as six weeks into a pregnancy. And a Florida Senate committee recently passed a bill requiring ultrasounds before ending a pregnancy. More than 20 states have pending abortion legislation, including Indiana, Maine, Michigan, and Florida.

Abortion was made legal in the historic 1973 Supreme Court decision Roe v. Wade. Since then, there have been numerous legislative and legal restrictions on access to abortion, most notably the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which affirmed Pennsylvania’s restrictions regarding a 24-hour waiting period and parental consent for minors. Many of the latest proposals are more restrictive than Casey, and some would make it nearly impossible to get an abortion.

BU Today spoke about the implications of such legislation with Tracey Maclin, a School of Law professor, who has written extensively about constitutional law and constitutional theory, especially the Fourth Amendment, which guarantees a citizen’s “right to be secure in their own person.” Maclin is a 1995 recipient of a Metcalf Award for Excellence in Teaching and a Joseph Lipsitt Faculty Research Scholar.

BU Today: What’s behind the recent surge in abortion-related legislation?
Maclin: It’s mostly political. You’ve got the Republicans and the so-called Tea Party Republicans asserting the spoils of their victories in the last election. I think that partially explains it, and I think the social conservatives are probably a little bit more emboldened than they had been after President Obama’s election, when the Democrats controlled both the House and the Senate.

Do you think that increasing restrictions on abortions will lead to a curtailment of other personal freedoms?
Perhaps. In some cases you do see that, but I don’t know if one necessarily follows from the other. Some of the conservatives are just flat-out conservatives, and they think that some of the rights established by the courts should be restricted, obviously the rights of criminal defendants and some of the other controversial rights. My guess is that they also oppose expansion of rights for gays and lesbians—for example, the right to marry. On the other hand, they also tend to be in favor of religious rights—the rights of individuals to pray and engage in certain forms of speech. Again, it’s a mixed bag. I’m not sure there is a definite connection. A lot of it is kind of selective in terms of what rights they generally favor and those that they don’t.

With budget crises looming everywhere, will we see less federal and state funding of reproductive services?
Yes, I think that’s the whole aim of the Republicans in the House and probably the Republicans in the Tea Party. For social conservatives the aim is certainly to cut funding for abortion and for access to abortions, and as a result those services will be less and less available.

Do you think that the current round of proposed legislation could lead to decreased access to birth control?
That may already be in the works—proposals and efforts to restrict access to birth control. Again, those with money, those with the financial wherewithal, will get birth control just as they will get abortions. So that’s where you’re going to see the biggest impact—the people who can’t afford to go out on their own and receive these services. And it’s my sense that these same social conservatives who want to oppose abortion probably also oppose access to birth control for teenagers.

Many current legislative proposals are based on viability. Is there a way to legally define when life begins?
The Supreme Court, in Roe v. Wade in the early ’70s, stated that it was not going to answer that question. And since Roe, that question has not been resolved. Legislative proposals at the federal level and at the state level have sought to define when life begins. To my knowledge, none of these proposals have gone very far. Can states go out and define it? Sure. The key question is not whether they can pass a law saying that life begins at conception, but how it affects women’s access to abortion. If life begins at conception, then the state has an obligation to deny abortions because of the 14th Amendment, which says no state shall deny any individual life, liberty, or property. If life begins at conception, even a state that wanted to provide abortions couldn’t do so, because the fetus now is a person and they can’t authorize a killing of that fetus. If a fetus becomes a person, it’s got constitutional protections. Now, in Roe, the court explicitly said a fetus is not a person within the meaning of the Constitution. So, again, that’s where you have potential problems. States can define whatever they want in terms of when life begins; it’s just when they seek to take that definition and use it as a restriction on access to abortions that things get problematic.

Are there any constitutional amendments other than the 14th that might affect decisions on abortion rights?
There has been some discussion. I want to make clear that Roe v. Wade is not the law of the land. The law of the land as far as the Supreme Court is concerned is Planned Parenthood of Southeastern Pennsylvania v. Casey. But some have argued that equal protection principles specifically dealing with gender equality should factor in to the court’s analysis as to when a woman has a right to abortion or not. The majority of the courts have never embraced the notion that abortion is primarily about gender, and thus equal protection concerns are relevant here.

What was the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey?
In the Casey decision, Pennsylvania’s requirement was that women receive information about the weight of the fetus and also that they wait 24 hours before undergoing an abortion. The Supreme Court said that both of those provisions did not amount to an undue burden, and so they upheld Pennsylvania’s law. On the other hand, Pennsylvania also enacted a spousal notification provision, which said that the husband had to be notified about the impending abortion. And the court said that was an undue burden and struck down that provision of the law. The problem with the undue burden standard is that it is very subjective.

Are we moving in a direction where abortion rights could be completely overturned?
No. I think, though, that there will be continued restrictions, and the courts are going to continue to uphold most of those restrictions until there is a change among the five so-called conservatives on the Supreme Court. Until one or two of them are replaced by so-called liberal judges, you’re not going to see any changes at the Supreme Court level. And the Supreme Court sets the tone. State courts are willing to interpret to give women access to abortions, and they don’t have to follow the Supreme Court. But that’s not the general rule. Most of them follow what the Supreme Court says in this question.

Allison Thomasseau can be reached at althoma@bu.edu.