Table of Contents:
The “War on Women” currently being waged by
conservatives in the U.S. Congress and state legislatures is well
documented. From attacking contraception to insulting rape survivors to
threatening funding for reproductive healthcare, anti-choice legislators
and activists are staging an assault on women’s health, privacy and
autonomy.
But while extreme attacks on reproductive rights – such as radical
“personhood” bills that threaten to criminalize even some forms of birth
control – rightly receive significant attention and opposition, more
incremental anti-choice proposals frequently escape wide notice and face
minimal resistance as they become law. Often presented as
“common-sense” or “women’s health” measures, these laws are in fact
meant to gradually chip away at reproductive health access, undermining
the foundation of long-standing rights.
By passing mandatory ultrasound and waiting period laws, or requiring
doctors to provide inaccurate medical information, anti-choice
politicians create a culture in which women’s rights are up for grabs.
As conservatives call for smaller government, they pass laws that
intrude into our most private and significant decisions, put a script in
our doctors’ hands, and tell us we do not know our own minds. In
addition, these laws are meant to chip away at women’s constitutionally
protected right to autonomy over our own bodies in a deliberate attempt
to undermine
Roe v. Wade.
The list of anti-choice tactics below is by no means comprehensive.
State legislatures in recent years have had some success in restricting
women’s healthcare through defunding Planned Parenthood and other family
planning services. At the national level, activists and legislators
have staged a very public battle to restrict access to birth control and
emergency contraception through the Affordable Care Act.
But this report outlines some of the quiet ways that anti-choice
activists and legislators are working to restrict women’s access to
safe, affordable and reliable reproductive care. These tactics are often
overshadowed by louder, broader debates, but their ultimate goal is the
same: to whittle down women’s reproductive rights, and eliminate access
to safe and legal abortion.
Five Quiet Threats to Women’s Health
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TRAP Laws
One of the most common ways state legislatures restrict women’s
access to healthcare is through Targeted Regulation of Abortion
Providers (“TRAP”) laws, which subject clinics and doctors to burdensome
and unnecessary restrictions in order to force them to close.
Designed to look like harmless regulations, TRAP laws often evade
scrutiny and are frequently passed without significant opposition. But
these laws are far from harmless: In fact, TRAP laws have a devastating
impact on women’s access to quality, affordable healthcare.
Currently, 45 states and the District of Columbia have TRAP laws in
place. State legislators claim that these laws make clinics safer for
women and ensure that abortions are performed in an appropriate medical
setting. In reality, however, TRAP laws burden clinics with overly
stringent and unnecessary requirements that often necessitate major
remodeling or other cost-prohibitive measures.
Some TRAP laws take the form of building regulations that require
clinics to perform costly and unnecessary renovations. A Virginia clinic
threatened by new TRAP regulations this year estimated that the cost of
compliance could exceed $500,000. It ultimately decided to shut its
doors. In Texas, a TRAP law proposed in early 2013 would require
abortion clinics to adhere to the same standards as surgical clinics,
even though many of the clinics only administer medical abortions, which
do not involve surgery. The bill stalled in the Senate, one vote short
of the supermajority needed to bring it to the floor.
It has since been proposed again, and is currently in committee in the Texas Senate.
Other TRAP laws require doctors providing abortions to obtain
official affiliations with local hospitals. This can be a difficult or
impossible task, especially for clinics that rely on doctors visiting
from out of state. A 2012 Mississippi law targeting the state’s lone
abortion provider required all doctors performing abortions to have
hospital admitting privileges; when the clinic’s doctors sought those
privileges, every local hospital denied their requests.
(One concern was that anti-choice protestors would interfere with the hospitals’ work if they supported abortion providers.
)
Fortunately for Mississippi women, a federal court granted an
injunction against enforcement of the admitting privileges requirement.
The court found that, by forcing the state’s only provider to close,
the law would place an undue burden on women seeking abortions.
Anti-choice legislators often tout TRAP laws as pro-women. But these
laws in fact prevent women from obtaining care. By closing clinics, TRAP
laws cut off access not only to abortion services, but to women’s
access to contraception, cancer screenings, STD testing and other vital
healthcare services.
Because TRAP laws are often embedded within complicated legislation
and involve seemingly reasonable or innocuous regulation, they can fail
to attract attention from the public. This allows legislators to pass
these harmful laws without meaningful opposition or debate. In addition
to casting TRAP laws as beneficial for women’s health, anti-choice
lawmakers have employed a deceptive strategy of loading TRAP legislation
with more controversial provisions. The contested portions of the bill
are later dropped, so that conservative lawmakers can make a show of
compromising, even while they achieve their ultimate goal of passing
TRAP laws. For example, in January 2013, Indiana legislators introduced a
bill
that would have required two transvaginal ultrasounds before a woman
could be given RU-486 for a medical abortion, and included various TRAP
provisions.
In response to considerable public protest, the ultrasound provisions were later dropped.
However, the TRAP provisions passed.
In this way, legislators use extreme and controversial anti-choice
measures as a Trojan horse for insidious laws that chip away at a
woman’s right to choose.
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Crisis Pregnancy Centers
Crisis pregnancy centers (CPCs) are so-called “abortion alternative” sites run by private organizations
that claim to provide support, information and medical care to pregnant women.
CPCs use misleading tactics to draw women in: The centers advertise
themselves as legitimate health centers, purposely distorting the truth
to take advantage of vulnerable women.
In reality, CPCs do not present women with a full range of reproductive
health options; instead, they use false information about abortion to
pressure women into continuing unwanted pregnancies.
CPCs receive significant government funding but are subject to minimal oversight.
In 2011, Texas cut its annual funding for family planning services by
two-thirds (from $111 million to $37.9 million) over a two-year period,
while increasing state funding for CPCs.
All but one of Texas’ 33 CPCs have overt religious affiliations,
and a government contractor’s inspection found that many clinics failed
to properly label religious material as separate from educational
material.
A NARAL investigation in North Carolina found that most CPCs in the
state had no medical professionals on staff, yet 75 percent of the
centers failed to disclose that they were not medical facilities.
What’s more, over two-thirds of the clinics that NARAL investigated
provided false or misleading information about abortion to those seeking
care.
An investigator posing as a Jewish woman was told she would not go to
heaven unless she converted to Christianity – at five different centers.
CPCs also receive federal funding. Between 2001 and 2006, CPCs received approximately $30 million in federal funds.
A 2006 congressional report found that 20 out of 23 federally funded
centers had given false or misleading information about the risks of
abortion.
CPCs employ a variety of misleading tactics, including enticing
low-income and uninsured women with promises of free medical care,
usually pregnancy tests and ultrasounds.
Although many centers actually do provide these services, this is the
extent of the medical assistance they offer. The results are then used
as a tactic to pressure women into forgoing abortion.
CPCs have also been known to rent spaces next door to legitimate
women’s health clinics in an effort to confuse women seeking medical
advice or abortions.
CPCs have become such an effective tool for the anti-choice movement
that conservative legislators are increasingly including the centers in
their efforts to block women from obtaining abortion care. In March
2013, South Dakota became the first (and, to date, only) state to
require a woman to visit a CPC before obtaining an abortion.
The state also extended an existing 72-hour required waiting period to
exclude weekends and holidays, with the alleged purpose of ensuring that
a woman has ample time to schedule an appointment at a CPC before the
procedure.
The CPC visit law is currently blocked while a legal challenge from Planned Parenthood proceeds in federal court.
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Mandatory Waiting Periods
Mandatory waiting periods require a woman to wait a certain amount of
time (usually 24 hours) between consulting with a physician and
undergoing an abortion.
To date, more than 25 states have passed such laws
;
the longest current waiting period is in South Dakota, where women are
forced to wait 72 hours, excluding weekends and holidays, before
accessing abortion care.
Proponents
of these laws claim they ensure that patients have time to receive
counseling and consider all the options before having an abortion.
In fact, studies have shown that mandatory waiting periods hurt patients, causing both emotional and financial harm.
Eighty-seven percent of U.S. counties do not contain a clinic that performs abortions.
This leaves millions of women without sufficient access to abortion
care, forcing some patients to travel hundreds of miles to reach the
nearest clinic.
Waiting periods disproportionately impact low-income and rural women
because these laws require a woman to make two separate trips to an
abortion clinic within a short period of time.
This
may necessitate taking unpaid time off from work, making childcare
arrangements, paying for lodging and traveling long distances. Many
women seeking abortions are low-income single mothers,
and these laws place an enormous burden on such women; their limited
means are stretched by anti-choice laws, and waiting periods mean that
they must spend more time away from their children and jobs.
Waiting periods do the opposite of what legislators claim – rather
than giving women time to consider their choice, they simply make it
more difficult and costly to access desired care. These paternalistic
laws assume that women do not carefully consider their options before
choosing abortion. In fact, evidence shows just the opposite.
Studies show that waiting periods have an adverse emotional impact on women
and do not change their minds about abortion.
The primary impact – and intent – of waiting periods is to make it more
difficult for women to obtain the care they need and want, and to which
they are legally entitled.
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Race- and Sex-Selective Abortion Bans
Conservative lawmakers are increasingly turning to seemingly
innocuous bans on race- and sex-selective abortion in the effort to
restrict women’s access to reproductive healthcare. Evidence suggests
that the actual incidence of race- and sex-selective abortions in the
U.S. is minimal.
In practice, these laws do nothing to combat actual discrimination, but
instead serve as one more barrier to access, especially for minority
women.
In 2011, Arizona became the first state to ban race- and sex-selective abortions.
The law made it a felony to knowingly perform or finance an abortion sought due to the race or sex of the fetus.
A federal ban – Prenatal Nondiscrimination Act (PRENDA) – has also been proposed, but it failed to pass in the House.
The ACLU is currently suing over the Arizona law, arguing that it
creates an unconstitutional interference with a woman’s right to choose,
and that it requires doctors to engage in racial profiling and
discrimination.
A major concern is that Asian-American women will be profiled and
discriminated against in seeking abortion care, due to stereotypes that
such women would be more likely to seek abortions of female fetuses.
Advocates are also concerned that African-American women will face
discrimination and incorrect assumptions about their motivations for
seeking abortions.
Higher rates of abortion among African-American women have led
conservatives to claim that race-selective abortion is a widespread
problem and even to allege that abortion rights advocates are
perpetrating a “genocide” against African Americans.
These claims are not only false; they are insulting to women making private, personal choices about abortion.
These laws are dangerous to women of color and immigrants, as they
place yet another barrier in the way of accessing safe reproductive
healthcare. Women may be deterred from seeking care if they fear
discrimination, refusal of service or criminal liability. These bans are
virtually impossible to enforce; they only make it more difficult for
vulnerable women to access care, while doing nothing to achieve the
stated goal.
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Interference with Medical Providers
Some of the most insidious laws seeking to limit women’s access to
reproductive care create barriers between women and their doctors by
mandating that doctors provide medically inaccurate information or
perform medically unnecessary procedures.
Restrictive laws do not protect women or lower rates of abortion;
instead, they worsen the burden on women and may have a deleterious
effect on the trend toward early abortion.
Such laws also waste medical resources by mandating unnecessary
treatment and interfere with physician judgment. Instead of a decision
made by a doctor, in consultation with a patient and considering her
health and circumstances, the government tells doctors what they must
do, regardless of patient needs or medical necessity.
Outdated Constraints on Early-term Abortions
In the early stages of pregnancy, a woman can choose medical abortion instead of a surgical abortion.
In a medical abortion, the pregnancy is terminated by taking an
FDA-approved medication that consists of the drugs mifepristone and
misoprostol (sold under the brand name Mifeprex).
Medical abortion is a safe and effective treatment for women in the first seven to nine weeks of pregnancy.
The pill is safe enough to be taken at home, and normally does not require any follow-up care.
The World Health Organization has long recommended that
nurse-midwives, nurse-practitioners and physician assistants be
permitted to prescribe Mifeprex.
However, FDA guidelines state that only a licensed physician may
prescribe Mifeprex, and the agency requires that women seeking to take
the drug make three separate visits to a doctor.
On the first visit, the patient is counseled and given a dose of Mifeprex.
Two days later, she returns for a second dose.
Two weeks after that, she has a follow-up visit.
These cumbersome requirements are severely outdated and place an
unnecessary burden on women. One study found that by 2001, 83 percent of
providers were not using the FDA guidelines for medical abortion.
However, several states still require doctors to comply with some or all of these guidelines.
Two states have laws requiring complete compliance with the FDA
guidelines, while 39 others require compliance with some of the
guidelines.
Most of these states limit prescribing authority to licensed
physicians, while 10 require an ultrasound before Mifeprex is prescribed
and eight require a physician to be present when the patient takes the
medication, ruling out telemedicine.
Nine out of 10 abortions occur in the first 12 weeks of pregnancy, partly due to the advent of Mifeprex.
Laws that restrict access to medical abortion place a burden on women
by requiring multiple unnecessary doctor visits, depriving them of the
chance to take the medication in the privacy and comfort of their own
homes, forcing them to undergo unnecessary ultrasounds and attend
counseling sessions, and requiring them to see a physician for a simple
prescription. Instead of respecting the judgment and autonomy of women
and their need for healthcare access, these laws complicate what should
be a simple medical treatment.
Mandatory Counseling Laws
Mandatory counseling laws are another tactic used by anti-choice
legislators to interfere with the doctor-patient relationship. Such laws
limit a doctor’s ability to adequately address a patient’s needs on an
individual basis, and threaten patient health by requiring that they be
misinformed by their medical provider.
Currently, 25 states require that a woman be informed about the abortion procedure and fetal development.
Thirty-three states require that a woman be told the gestational age of
the fetus, and 27 states require counseling on the stages of fetal
development.
Twelve states mandate that a patient be told of the ability of a fetus
to feel pain, despite the lack of scientific evidence for such a claim.
(An article published in the Journal of the American Medical
Association found that fetuses cannot experience pain before 35 to 37
weeks of pregnancy.)
Five states require that a woman be told that personhood begins at conception (a blatantly unscientific claim).
Twenty-four states require counseling about the potential risks of abortion.
Several of these states mandate that a doctor provide inaccurate
information on the connection between abortion and breast cancer, and
abortion and infertility.
Several states mandate that doctors give women biased information about the emotional and psychological impact of abortion.
By requiring medical professionals to provide biased and incorrect
information, mandatory counseling laws corrupt the doctor-patient
relationship and sacrifice women’s well-being. To the lawmakers behind
these bills, it is more important to dissuade women from abortion than
it is to provide comprehensive and accurate medical information. Doctors
are often unwilling participants in this charade, in which they are
given a politically motivated script that they must present to their
patients. Instead of receiving competent medical care, patients are
bombarded with anti-choice propaganda that disregards their wishes,
needs and rights.
Mandatory Ultrasound Laws
Mandatory ultrasound laws are another way in which legislators
interfere with the doctor-patient relationship. Such laws require
abortion providers to perform an ultrasound on a woman seeking a
first-trimester abortion, even though such a procedure is generally not
medically necessary.
Anti-choice activists claim that these laws help women to understand
their decisions by giving them the benefit of more information.
However, by mandating unnecessary medical procedures, these laws burden
women, make abortion more costly and time-consuming, waste medical
resources and interfere with a doctor’s discretion.
One physician at a Texas clinic, forced to describe a fetus with a
severe molecular flaw, told his patient, “I’m so sorry that I have to do
this – but if I don’t, I can lose my license.”
After reading state-mandated literature on the risks of abortion, the
physician informed the woman that “the legal side” of her abortion care
would be over only when she returned to the clinic after a mandatory
24-hour waiting period: “Then [after the waiting period] we’ll care for
you and give you the information you need in the way we think is right.”
Currently, 21 states have laws requiring pre-abortion ultrasounds.
Louisiana and Texas require a doctor to perform an ultrasound, and then show and describe the image to the woman.
The other 19 states have varying requirements that a woman be given the opportunity to view an ultrasound image.
In 2012, Virginia was at the center of a debate over a proposed law
that would have required women to undergo an invasive and medically
unnecessary transvaginal ultrasound before accessing abortion care.
Facing a major public outcry, legislators amended the law to require an
abdominal ultrasound instead, and this version of the bill was signed
into law by Virginia Gov. Bob McDonnell.
A 2013 attempt to repeal the bill was voted down by Republicans in the state legislature.
Like many other laws that restrict abortion access, mandatory
ultrasounds burden women and make it more difficult to obtain care. An
abdominal ultrasound performed before 12 weeks of pregnancy (when the
vast majority of abortions take place)
is generally not medically necessary,
making such laws a waste of time for women and medical providers.
Mandatory ultrasound laws also cost women money. An ultrasound costs
between $200 and $1,200, and many insurance companies will not cover the
procedure, as it is medically unnecessary.
Virginia’s law requires that a woman be given information on obtaining a free ultrasound.
However, a list of free ultrasound providers compiled by the Virginia
Department of Health was dominated by crisis pregnancy centers, which
provide biased or false information and often do not have medical
personnel on staff.
Mandatory ultrasound laws are also used in conjunction with waiting
period laws to delay a woman’s access to abortion care. In states with
both laws, a woman often has to wait 24 hours or more between ultrasound
and abortion.
These delays fall especially hard on low-income women and those living in rural areas.
Finally, mandatory ultrasound laws do not change women’s minds about
abortion. A study by The American Independent found that viewing an
ultrasound image or hearing a fetal heartbeat did not change women’s
minds about abortion.
In passing these laws, legislators betray a fundamental
misunderstanding about the reasons women choose to terminate their
pregnancies. In reality, women primarily have abortions due to external
circumstances (75 percent of patients cited existing family obligations
and financial constraints, and 60 percent already had children.
).
Mandatory ultrasound policies are a coercive effort at emotional
manipulation that has no place in the law and whose only result is to
harm women.
Broadsides on Roe v. Wade: The Growing Danger of Personhood and Heartbeat Bills
Since the Supreme Court affirmed a woman’s right to choose an abortion in 1973’s
Roe v. Wade,
anti-choice activists have been split on how to go about restricting
abortion rights. Several major anti-choice groups, including Americans
United for Life, argue for taking incremental measures in legislatures
and in the courts to chip away at
Roe’s protections. AUL’s
general counsel once compared his group’s approach to carving a
Christmas ham: “Each slice makes it smaller and smaller until it is no
more.”
While this “slice-by-slice” approach still dominates the anti-choice
movement, more extreme attacks on choice have begun to enjoy some
success in states and in the U.S. Congress. These blatantly
unconstitutional head-on attacks on
Roe – including
“personhood,” “heartbeat” and “fetal pain” measures – are frequently
blocked by voters, legislatures and the courts. But even if these
measures never become law, they present a real threat to women’s health:
By spreading these extreme views, anti-choice activists create a
culture in which established rights are questioned, abortion providers
live in fear and women’s health access continues to be up for debate.
While incremental measures such as those outlined above provide the
greatest immediate threat to women’s healthcare access, it is important
to also understand the risks posed by extreme broadsides on
Roe v. Wade. In
fact,anti-choice advocates see even these extremist laws as incremental
steps in chipping away at abortion rights: Even if personhood and
heartbeat bills are overturned upon challenge, they have succeeded in
calling abortion rights into question, and forcing pro-choice groups to
spend time and money fighting these unconstitutional bans.
The “personhood” movement defines life as beginning at conception; a
fetal personhood law would grant full legal rights to human embryos from
the moment of fertilization.
Personhood laws present an extreme threat to women’s rights and health,
preventing doctors from providing appropriate care to women, even when
their lives are in danger. For example, under personhood laws, doctors
could face restrictions on the treatment of ectopic
and molar
pregnancies, life-threatening conditions that necessitate early termination.
Personhood also leaves no room for considering the health or well-being
of the pregnant woman. Under such a law, a woman would be forced to
continue a pregnancy even if it was conceived against her will, through
rape or incest.
North Dakota is the only state to have passed a personhood amendment
to date, although several other states are considering such laws.
Passed by the state legislature in March 2013, the measure will come before voters in November 2014.
If successful, it would change the state’s constitution to include a complete ban on abortion with no exceptions.
Personhood laws are in blatant violation of
Roe v. Wade and
Planned Parenthood v. Casey,
which held that the state does not have a strong enough interest to
justify banning abortion before viability (about 24 weeks), and would
therefore almost certainly be struck down if challenged in court.
But any decision could be appealed to the Supreme Court, which could
overrule (or just find a way around) its precedents. The ultimate goal
of the extreme personhood agenda is to overturn
Roe v. Wade and ban all abortions in the United States.
Heartbeat bills are less extreme than personhood bills, but, if
passed and allowed to stand, would still severely limit abortion rights.
Under a heartbeat law, abortions are banned after the point at which a
fetal heartbeat can be detected on an ultrasound.
A heartbeat can be detected as early as six weeks into pregnancy –
before some women may even be aware that they are pregnant –
but can only be detected using a transvaginal ultrasound.
Under a heartbeat law, a woman seeking an early-term abortion may have
to submit to an unnecessary and invasive procedure to find out if she
can legally terminate an unwanted pregnancy.
Heartbeat bills place an arbitrary limitation on a woman’s right to
choose. The ability to hear a fetal heartbeat is completely irrelevant
to the safety, necessity or legality of an abortion. Such laws are
merely another attempt by anti-choice legislators to make it impossible
for women to access safe and legal healthcare.
To date, North Dakota and Arkansas are the only states to have passed
heartbeat bills, although similar laws are being considered by several
others.
North Dakota’s heartbeat bill will go into effect on August 1, 2013,
but the Center for Reproductive Rights (among other advocacy
organizations) has stated that it will file a lawsuit challenging the
law before that date.
ACLU and CRR are currently challenging the Arkansas law; in May 2013, a
federal judge granted a preliminary injunction blocking the law from
going into effect.
“Fetal pain” bills restrict abortion based on dubious scientific
evidence that fetuses can feel pain after 20 weeks of pregnancy.
Since 2010, 10 states have passed fetal pain bills.
In June 2013, the U.S. House approved H.R. 1797, a national version of a
fetal pain bill, which would ban abortion beginning at 20 weeks.
However, such a law is unlikely to withstand constitutional scrutiny.
Idaho’s law was the first to be rejected by the courts. A federal
district court struck down the law, citing
Roe v. Wade’s determination that pre-viability bans on abortion are impermissible.
Similar laws in other states have been temporarily or permanently enjoined.
The proliferation of extreme, blatantly unconstitutional “personhood”
and “heartbeat” bills rightly continues to dominate headlines. But
behind this troubling trend, quieter attacks on choice continue to chip
away at women’s constitutional right to legal abortion and reproductive
healthcare. Reproductive choice loses its meaning if women lose the
ability to access quality, affordable care. Anti-choice activists and
lawmakers know that short of a reversal of
Roe v. Wade, these incremental measures are the best hope they have for eliminating reproductive choice.
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