More than 60 new restrictions on access to abortion were passed by 19 states in 2016, according a year-end report from the Center for Reproductive Rights. The regulations run the gamut from attempts to ban abortion altogether, to excessive paperwork requirements for providers and measures that would restrict the donation of aborted fetal tissue for medical research.
In sum, 2016 was a just another normal year for advocates who have battled to protect women’s reproductive autonomy. Notably, however, state or federal courts ultimately blocked many of the onerous provisions, a circumstance that underscores how important the judiciary is in protecting women’s rights.
Still, with the looming ascension of a Trump-Pence administration, the CRR notes that advocates must remain vigilant. “Given signals from the president-elect and new administration, we know that we must renew our commitment to defend the rights of women to make decisions that affect their health, their lives, their families and their futures,” reads the report.
One of the most egregious attacks on reproductive freedom came from the vice president-elect, Indiana Gov. Mike Pence, who on March 24 signed into law a legislative package that included two particularly controversial provisions: one that would forbid a woman from seeking an abortion based on the presence of a fetal abnormality and a second that would require burial or cremation of aborted fetal tissue. “By enacting this legislation, we take an important step in protecting the unborn,” Pence said in a signing statement. “I sign this legislation with a prayer that God would continue to bless these precious children, mothers and families.”
While Pence and others framed the legislation as a way to provide dignity to the terminated unborn and as a nondiscrimination law that would prevent the abortion of a fetus strictly because of its gender or potential for disability, advocates for women’s health saw the measures not only as an undue burden on women seeking legally-protected health care, but also as a thinly-veiled attempt at a categorical ban on pre-viable, first trimester abortion. “The law does not value life, it values birth,” Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky (PPINK) said at a press conference after the bill’s signing. “What needs to be made abundantly clear is that what this is really about is making abortion go away entirely.”
The ACLU of Indiana filed suit on behalf of PPINK, seeking to block the provisions, and on June 30 a federal district judge imposed a preliminary injunction, prohibiting the state from enacting the measures while the lawsuit moves forward.
One of the biggest legal wins of the year came in late June, when the U.S. Supreme Court blocked two onerous restrictions enacted in Texas, in what the CRR calls a “watershed victory for the reproductive rights movement.” In that case, Whole Woman’s Health v. Hellerstedt, the court blocked a provision that would require abortion clinics to undertake costly renovations to transform themselves into hospital-like ambulatory surgical centers, and another that would require doctors to have hospital admitting privileges within 30 miles of each clinic where they perform the procedure.
According to the state, the measures were necessary to ensure women’s health and safety. In practice, the measures led to the closure of nearly two dozen clinics, leaving women across large swaths of Texas without any meaningful access to care. For many women, the restrictions meant having to travel hundreds of miles to access services.
Confronted with evidence of the geographical and monetary burdens that the restrictions would create, the state put the lie to its own protestations that the measures were enacted with the well-being of women in mind. In talking about the travel burdens facing women in far West Texas, for example, a lawyer for the state noted that women in the El Paso area could simply travel across the state line into New Mexico to seek care. Notably, that state does not impose the very restrictions the state was arguing were necessary in order to promote women’s health.
In its opinion, the Supreme Court placed significant weight on the evidence brought by Whole Woman’s Health that the provisions created an undue burden, evidence the state could not rebut, signaling that going forward empirical evidence would be important and that the courts could not merely defer to lawmakers’ statements of legislative intent, which previously, in various instances, had carried the legal day.
Since 2011, the CRR has monitored some 2,100 legislative proposals restricting abortion rights. More than 300 have become law — many of them known as targeted regulations of abortion providers, or TRAP, laws, which are generally red-tape regulations framed as a means to increase public health and safety. In reality such laws are medically unnecessary and designed largely to construct roadblocks for women accessing care.
In 2016, and in the wake of the Whole Woman’s Health decision, each court that considered a challenge to a TRAP law blocked it. According to the CRR, courts blocked TRAP measures in Alabama, Arkansas, Louisiana, and Ohio. And state and federal courts took action to block (at least temporarily) other types of restrictions in a number of other states, including Alaska, Florida, Indiana, Kansas, and Oklahoma.
While the two Indiana provisions blocked in June were not TRAP laws, or similar to the provisions at issue in Whole Woman’s Health, another provision currently being challenged by the ACLU of Indiana on behalf of PPINK does implicate that ruling. That case is pending, says Ken Falk, the Indiana ACLU’s legal director.
Still, simply because the courts have taken an increasingly strong stance against punitive abortion restrictions does not mean states will stop seeking to enact them. Just days after the Whole Woman’s Health ruling — and after the Indiana fetal burial provision had been blocked — the state of Texas took steps to pass a new health agency rule adopting its own requirement for the burial or cremation of aborted or miscarried fetal tissue. The rule was slated to take effect December 19 — and was quickly blocked by a federal district court in Austin after the CRR brought suit, pending a hearing slated for January 3.
Given the ongoing assaults on reproductive freedom by states insistent on passing new and more onerous restrictions even in the face of negative court rulings — and given the environment that is likely to infect a Trump administration that prominently features such anti-choice actors as Pence — the strength of the state and federal judiciary could not be more critical.
Over the course of his divisive campaign, President-elect Trump flip-flopped wildly on women’s health issues — though once pro-choice, Trump eventually embraced some of the most extreme views on the rights of women, from pledging to employ an anti-abortion litmus test for his Supreme Court nominees, to opining not only that abortion should be banned but also that women should be punished for having the procedure. That has happened in Indiana. While Pence was governor, the state successfully prosecuted a woman named Purvi Patel for what prosecutors said, absent hard evidence, was an illegally induced medication abortion. Pence has said that he would like to see Roe v. Wade consigned to the “ash heap of history.”
The current wave of legislative attacks on reproductive rights began after the 2010 mid-term elections, which brought new conservative majorities to many state houses and governors’ mansions. While those elections might actually have been a reaction to concerns about the economy and jobs, notes Amanda Allen, CRR’s senior state legislative counsel, “we knew at the time that women’s reproductive rights would be collateral damage.” Since then, thousands of bills seeking to restrict abortion access have been filed — and hundreds have been enacted. “Since 2011, reproductive rights have been under a sustained assault, in which each legislative session piles more and more abortion restrictions on states where access is already extremely limited,” she said.
Still, CRR and others — including the ACLU and Planned Parenthood — have consistently fought those battles in the courts. “The Constitution provides strong protections against the types of policies the Trump administration has promised to advance,” Allen said, “and we will continue to turn to the courts to ensure that women’s constitutional rights are protected.”