Abortion’s Legislative History: Roe v. Wade, Hyde Amendment, and State Regulations

January 22nd, 1973, marks the 40th anniversary of the Supreme Court’s decision to legalize abortions in the first trimester of pregnancy.  Outside of Roe v. Wade’s historical and expansive victory, recent years have seen the abortion-rights movement pummeled by smaller scale, but incredibly significant, measures that have ultimately prevented abortion access for many women. Simply put, the years since abortion’s legalization have amounted to a continual chipping away of reproductive rights. A claim to total reproductive rights victory should be tempered by these strides that anti-abortion advocates have made.  Such set-backs should fuel health and women’s-rights advocates to reassess the current working model that propels the abortion-rights movement and propose alternative approaches that can prioritize women’s reproductive health.

The passage of The Hyde Amendment in 1976 initiated the slow path to shrinking access by not allowing federal Medicaid dollars to provide comprehensive health care services (including abortion) to women.  This legislation has disproportionally been felt by groups of lower-income women. In 1992, Planned Parenthood v. Casey gave states the

right to regulate abortion law under the condition that the regulations were not inflicting an “undue burden” on women.   Since then, numerous states have passed abortion regulations, which include providing parental notification or consent, mandating a waiting period (Women’s Right to Know), receiving counseling on a fetus’s ability to feel pain, and ultrasounds.  In 2011, state legislatures enacted 92 abortion-restricting regulations and in 2012 an additional 43 regulations were put in to law.  Both numbers represent a tremendous increase in these mandated restrictions, breaking the yearly record in 2005 of 34 passed regulations.  These regulations include Targeted Regulation of Abortion Providers (TRAP) laws such as requiring doctors who perform abortions to have hospital admitting privileges and abortion clinics to meet specific architectural zoning regulations. TRAP laws have had far-reaching implications (45 states and the District of Columbia have TRAP laws) when considering access and their future potential success is a sure threat to women’s reproductive health rights.

Reproductive Justice: A Template for Moving Forward

The tenant of reproductive justice provides an inclusive circle of reproductive health related rights that can re-invigorate the abortion-rights movement and re-institute reproductive rights of women.  Reproductive justice “seeks to expand and protect the rights of all women and girls to make informed decisions about and exercise control over their sexual and reproductive lives.”  The consideration of reproductive rights as a matter of justice allows for the inclusion of factors both directly and indirectly related to reproductive health–health care, education, employment, safe and affordable housing, socioeconomic status and positive social connections and interactions. All of the aforementioned factors present as potential barriers to fair reproductive health access; therefore, each factor is imperative to consider when seeking to provide equal reproductive access.  Why is a distinction of justice a necessary question to pose when considering reproductive rights?   It can be argued that justice not only demands choice, but provides a much more holistic array of factors that point to root causes.  Pulling out these roots is the key to creating a society wherein a woman can make the most informed reproductive health decision regardless of her ethnicity, her income level, her employment status, or her housing situation.  Advocating for justice is distinct, then, because justice is what makes choices possible.

An article published in the most recent edition of the American Journal of Public Health highlighted three areas that are imperative to both sustaining and increasing reproductive rights. These measures meld with the notions of reproductive health justice and are vital components to evaluate when considering success:

• Emphasizing youth-focused advocacy and leadership: At present, a generational rift exists within the movement that has pitted younger generations of women, interested in advocating for a more expansive repertoire of reproductive health rights against older generations of women whose tireless advocacy and presence defined the post-Roe era.  Both the talents and voices of this younger generation need to be integrated into this movement in such a way that increases leadership capacity instead of just producing numbers for rallies and fundraisers. Choice USA, Young Women’s Empowerment Project, and the Feminist Majority Foundation are organizations committed to promoting and uplifting the youth voice.
• Emphasizing safe and legal abortion as a public health issue: In order to preserve and expand reproductive rights, public health practice is necessary for both providing evidenced based research and garnering high-profile advocacy movements that can create change movements.  Through each of these venues, myths can be realized and greater funding and programming can be instituted.
• Emphasizing the the silence and stigma often associated with abortion: Reproductive justice should be concerned with removing the negative image that abortion often conjures and in creating spaces that foster healthy dialogue.  Instead of presenting abortion as the lesser of two evils, redefining abortion as a human rights and justice topic may alleviate outdated critiques of a woman’s right to choose.

Conclusion

As public health practitioners, it is wise to embrace the changing face of reproductive rights.  Lack of advocacy and action will result in the continued chiseling away of women’s reproductive rights.  Inaccessibility ultimately violates human rights and makes handling an unwanted pregnancy punitive and potentially unsafe.  Reproductive justice is a viable solution that encompasses a woman in her entirety and one that supports the reproductive-rights movement in a more holistic manner.