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Legal Moralism and Restrictions on Abortion

While abortion remains legal in the United States, efforts to restrict it have dramatically increased. In 2010, at least 11 states passed laws restricting abortion, a number regarded by those on both sides of the debate as unusually high. The laws ranged from limiting abortion coverage by private and state insurers to a ban in Nebraska on all abortions after 20 weeks, a ban that clearly violates a woman’s right to choose abortion before viability.

Eighteen states have introduced or passed legislation requiring counseling before abortions. Seventeen states encourage the use of ultrasound in abortion in an attempt to change women’s minds, while Alabama, Louisiana, and Mississippi require abortion providers to perform an ultrasound and offer the woman a chance to view the fetus.

In Oklahoma, the Republican-controlled legislature overrode a veto by the Democratic governor, Brad Henry, to enact a law that requires that women be presented with an ultrasound image (although, the statute said, they may avert their eyes) and a given detailed oral description of the embryo or fetus. The law was quickly challenged by two abortion providers, although its implementation has been stayed by a state judge pending a hearing scheduled for July.

Whether such laws actually get women to change their minds on abortion is questionable. In Alabama, which has had such a law since 2002, the number of abortions in the state has not changed. A provider in a Birmingham clinic toldThe New York Times, “I’ve never had one patient get off the table because she saw what her fetus looks like.”

In Planned Parenthood of Southeastern Pennsylvania v. Casey, a three-judge coalition (Sandra Day O’Connor, Anthony Kennedy, and David Souter) in 1992 strongly reaffirmed what they called the “essential holding” in Roe v. Wade: that a woman has a constitutional right to decide to terminate her pregnancy, prior to viability, and to obtain an abortion without undue interference from the state. However, the plurality also deemed legitimate the state’s interest in protecting potential life in the earliest stages of pregnancy. To further this interest, states may enact laws designed to inform women of the “philosophic and social arguments in favor of continuing a pregnancy to term.” States are also free to express a preference for childbirth over abortion and “to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”

What states may not do, according to Casey, is place an “undue burden” on the right to abortion prior to viability. The Supreme Court stated that a regulation places an “undue burden” on access to abortion when it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court did not define “substantial obstacle,” but simply declared that, with the exception of the spousal notification provision of the Pennsylvania law in dispute, none of its restrictions created an undue burden.

The Court acknowledged the factual finding of the district court that, due to the great distances many women would have to travel to reach an abortion provider, the practical effect would be a delay of much more than a day, and said that this made the question of whether the mandatory 24-hour waiting period was a substantial obstacle, and therefore unconstitutional, “a closer question.” Nevertheless, the plurality upheld Pennsylvania’s 24-hour waiting period, apparently for the semantic reason that the district court characterized the waiting period as “particularly burdensome” rather than as a “substantial obstacle.”

Today nearly half of the states have a 24-hour waiting period for abortion, but South Dakota is the first state to require a three-day waiting period. If requiring a woman to wait one day does not unconstitutionally burden her right to choose abortion, does requiring her to wait three days? In 2008, 98 percent of South Dakota counties had no abortion provider (there were only two providers in the state), and 76 percent of South Dakota women lived in these counties. Therefore, it is likely that most women would have to travel a considerable distance to get to an abortion provider. The women would also have to arrange care for any children they left at home, take three or more days off work, and come up with the money not only for the abortion and transportation, but also for lodging for three days during the mandatory waiting period. Those sure sound like substantial obstacles to obtaining an abortion, but given the complete absence of analysis in Casey, how are we to know?

A better approach to undue burden would not turn on the difficulty of obtaining an abortion, but would instead focus on whether state interventions serve, as Justice Stevens expressed it in his dissent in Casey, “a legitimate purpose.”

It is clearly legitimate to require that women seeking abortions get truthful information about abortion, including any health risks. It is impermissible for states to give false information or claims unsubstantiated by data: for example, several states assert that women who have abortions have a greater risk of breast cancer or serious depression. It is also legitimate for the state to try to ascertain if a woman has been coerced into seeking an abortion. This was the stated rationale of South Dakota’s HB 1217, but in fact the law, scheduled to go into effect in July, goes far beyond ensuring that her decision is “truly voluntary, uncoerced, and informed.”

South Dakota’s law, unique among the states, mandates that women seeking abortions be counseled at “pregnancy help centers.” These centers make no pretense at offering neutral counseling. In the words of the statute, they have “as their central mission providing counseling, education, and other assistance to pregnant mothers to help them maintain and keep their relationship with their unborn.” Does forcing women to undergo pro-life counseling impose a substantial obstacle to their right to choose abortion? One might think so, but if states have the right to ensure that women seeking abortions are aware of the philosophic and social arguments in favor of continuing a pregnancy to term, perhaps not.

What the South Dakota law demonstrates, I think, is the inadequacy of the approach taken in Casey. Although it claims to uphold the right of women to choose abortion, it also permits states to take an explicitly pro-life position, and furthermore to impose that moral view on its citizens. This version of legal moralism goes far beyond any reasonable or legitimate state purpose. It places an undue burden on the constitutional right to choose abortion.

Bonnie Steinbock is a professor of philosophy at the University at Albany/State University of New York and a Hastings Center Fellow. The second edition of her book, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, will be published in July.

Published on: April 11, 2011
Published in: Health and Health Care, Health Care Reform & Policy

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