Abortion: United States

Restrictions on women’s access to safe abortion are not limited to Mexico. Even in the United States, where abortion is legal, services are not readily accessible. In fact, many women and girls face serious legal or financial obstacles to accessing safe abortion services because of burdensome regulations, lack of providers, insufficient funding, or political opposition.

Obstacles to safe abortion in the United States seem to be on the rise. Since the landmark Supreme Court decision in Roe v. Wade in 1973, which established women’s right to decide with regard to abortion as a matter of privacy, both state and federal legislators have limited access to legal abortion. These roll-back measures generally seek to do one of two things:

1. curtail women’s access to legal abortion (such as through mandatory waiting periods or mandatory—and at times manifestly inaccurate—counseling); or
2. limit legal access to abortion to certain populations (such as rape victims or women whose lives are endangered by their pregnancy).

Women with limited economic resources face additional obstacles to safe abortion, resulting particularly in discrimination against women who may already be marginalized. Abortion services have been subject to a federal funding freeze since 1977 except in cases of life endangerment, rape, or incest. Furthermore, the majority of states do not provide funding for abortion services that fall outside these exceptions. A safe abortion often costs $500-$1,500. As a result, women with limited resources—who have not been raped or whose lives are not endangered by their pregnancy—may be forced to choose between carrying an unwanted pregnancy to term or taking desperate measures that could seriously jeopardize their health.

Regulatory Obstacles to Abortion in the United States

Since 1973, the United States Supreme Court has consistently ruled that an outright ban on abortion is unconstitutional. However, the Court has allowed states to regulate and limit access to abortion, so long as they do not place an “undue” burden on the individual seeking to terminate her pregnancy.

Over the past decade, legislators at the state and federal levels have pushed the limits of this Supreme Court mandate, and at times have imposed regulations with the explicit aim of challenging the constitutionality of legal abortion. Many states implement regulations that, in practice, may be unduly burdensome. For example, some states require that women and girls who wish to terminate a pregnancy submit themselves to counseling, which, in addition to being unsolicited, is often manifestly biased and medically unsound.

Inaccurate or Imposed Information

According to the nongovernmental research organization Alan Guttmacher Institute (AGI), as of September 2006 well over half the states in the United States (32) subject all women seeking abortion to mandatory counseling. Three states require clinics to inform women of a purported link between abortion and breast cancer, which numerous scientific studies have conclusively disproved. Four states also stipulate that women must be told that the fetus might be capable of feeling pain at any point during gestation. Such information, however, is contrary to recent scientific studies that conclude that fetuses cannot feel pain until the twenty-ninth week of gestation. In fact, as 90 percent of abortions in the United States occur in the first twelve weeks of the pregnancy, the mandatory information on fetal pain is not only scientifically wrong, but also irrelevant to the vast majority of abortion patients.

Access to accurate and complete information on medical procedures is an integral part of the human right to the highest attainable standard of health, and also essential to the principle of informed consent. When health professionals are required to give women and girls one-sided or inaccurate information about medical procedures—as the law mandates in many jurisdictions in the United States—the human right to health is threatened.

Mandatory Waiting Periods Add Cost

According to AGI, 24 of the 32 states that require mandatory counseling also require women and girls to wait for a specific period of time—most often twenty-four hours—between the counseling session and the abortion. While a waiting period before a medical procedure may not in and of itself be incompatible with the right to health, it can create additional, and potentially unduly burdensome, barriers to access to safe and legal abortions. For example, in those states where the law requires an in-person counseling procedure (as opposed to over the phone) a mandatory waiting period requires that the patient travel at least twice to the abortion facility. As a consequence, many must leave work for several days, and where there are no abortion facilities nearby—and 87 percent of U.S. counties have no such facilities (2000 figures, latest available)—the mandatory waiting period may require such additional cost as an overnight stay or several long-distance trips.

Added Restrictions for Girls

Many U.S.-based NGOs note that girls typically are subject to more restrictions than adult women regarding access to safe abortion. AGI and NARAL Pro-Choice America note that 44 states have laws on the books requiring parental consent or notification prior to a minor’s abortion. More than 20 states enforce parental consent laws requiring consent from a parent before a minor may obtain a legal abortion—in 3 cases the laws require consent from both parents. Further, more than 10 states have laws requiring that a parent be informed of a minor’s intent to have an abortion, and 2 states require that both parents be informed.

Mandatory parental consent and notification regulations are problematic for a number of reasons, especially in cases where both parents must consent or be notified. Abortion providers in the United States note from experience that the vast majority of teenage girls already seek support and guidance from one or both parents. The impact of notification and consent laws thus falls hardest on particularly vulnerable girls unable to involve their parents in their decision, including girls who do not have contact with either or both parents.

International human rights law requires governments to prioritize the best interests of children at all times, and to give the child’s opinion due weight according to his or her evolving capacities. A parent’s declared opposition to abortion should not automatically result in the assumption that carrying a pregnancy to term is in the best interest of the child, especially when the pregnant girl herself declares a desire to terminate the pregnancy. A U.S. Supreme Court precedent mandates that parental consent laws must have a judicial procedure to waive parental consent in specific circumstances. It is incumbent upon states to ensure that this precedent is reflected in law and adequately protects the interests of all children.

Criminalization of Doctors and Family Members

Women and girls who procure abortions are currently not subject to criminal sanctions anywhere in the United States. However, in some states, family members, doctors, nurses, and friends who support women and girls in need of an abortion soon could be.

In July 2006, the U.S. Senate passed a version of the Child Custody Protection Act, a version of which had already passed as the Child Interstate Abortion Notification Act in the House of Representatives in April 2005. If this law enters into force, any adult who helps a minor cross a state line to procure an abortion in circumvention of parental consent or notification regulations in the child’s home state would be committing a federal crime.

Furthermore, some states have passed legislation to criminalize medical doctors who perform abortions on certain types of patients. Most prominent is the blanket ban on abortion in South Dakota, signed into law in March 2006, which makes abortion illegal except when the procedure is carried out to save the pregnant woman’s life. Nongovernmental advocacy organizations that follow closely the developments of abortion legislation note that several other states—including Georgia, Indiana, Ohio, Louisiana, and Tennessee—have moved to enact similar legislation.

Conclusion

Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe and legal abortion services is first and foremost a human right. In the United States the legality of abortion co-exists with cumbersome regulations, thinly veiled political opposition to a woman’s right to make independent decisions regarding pregnancy and abortion, and a lack of federal and state funding for the provision of abortion services for poor women that seriously hampers women’s ability to exercise this right. Until access to safe abortion is guaranteed, the human rights of women and girls across the United States will not be fully secure.

What you can do:

Write letters to your federal and state senators or representatives urging them to ensure equitable access to reproductive health services, including modern contraceptive methods, emergency contraception, and voluntary abortion services. A number of bills have already been introduced on these issues. In particular, you should encourage your federal congressperson to support:

• The Compassionate Assistance for Rape Emergencies Act (“CARE” S.1264/H.R.2928). This bill would ensure that survivors of sexual assault are offered the “morning-after” pill in the emergency room.
• The Freedom of Choice Act (“FOCA” S.2593/H.R.5151). FOCA guarantees a woman’s right to choose to bear a child or to terminate a pregnancy without interference by the state or others.