It is only March of 2012 and already this is turning out to be the year Republicans took their war on women to entirely new heights.
It might seem like it all began when the powers that be at the Komen Fund decided it was time to get into the game of shutting down Planned Parenthood. Shutting down Planned Parenthood has been a goal of the right since the abortion wars began. Controlling the type of healthcare available to women, effectively renders us children to the state, it’s right out of A Handmaid’s Tale, it is scary how far some of the foes of reproductive health will go. They do no only employ intimidation through threats of bodily harm, they have coupled that with enacting legislation effectively curtailing the rights of women to be full and total citizens of this country. It’s shameful.
The quest for full citizenship for women has been ongoing since the founding of our nation, certainly the 19th amendment were the efforts of a very long struggle. We had to wait a longer time to gain control over our bodies. We are now losing that fight.
In 1965 women began to gain our own right to privacy over our own bodies, men somehow were born with that right, we had to fight to gain those rights. Griswold V Connecticut, established that a couples had the legal right to make family planning decisions, it established individuals have a fundamental right to privacy. This is why Griswold is so important and this is why Republicans attack Griswold, it wasn’t Roe V Wade that established the right to privacy, it was Griswold V. Connecticut and if they can successfully neuter Griswold state by state Roe v Wade can be effectively overturned.
William O. Douglas argued in the majority opinion that marriage is defined as an “association” and argues that because the Supreme Court had already found a right to privacy in associations, marriage was likewise protected. But it wasn’t on those grounds alone, Douglas also noted that the Third Amendment’s prohibition against forced quartering of soldiers, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth Amendment’s self-incrimination clause, and the Ninth Amendment’s provision that rights not specifically named are reserved to the people combine to create a broad constitutional right to privacy.
In 1972 those rights were extended to unmarried couples Eisenstadt v. Baird (1972) extended Griswold to unmarried couples. If married couples had a “right of privacy” then unmarried couples and individuals have the same right under the Equal Protection Clause of the Fourteenth Amendment. Justice Brennan writing for the majority, ” If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child.”
Then came the 1973 Roe V Wade decision. What is particularly telling about this decision is that the Justices knew that this would cause a firestorm of criticism. Let’s look at what Justice Blackmum wrote for the majority:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.
The decision itself is a highly technical decision siting decisions that went as far back at 1891 in establishing an individuals right to privacy as an implied requirement of the constitution as it is not explicitly stated.
Part VIII of the decision begins this way:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
They went further to state the the right to privacy is not absolute and site other cases as to why it is no absolute and then go on:
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
Their summary reviews their decision defines viability as the first trimester and sites the fundamental individual right to privacy.
And then all hell broke loose and ever since there has been a drumbeat to take reverse Roe V Wade. Roe was decided at a time when legislatures and courts around the world were showing increasing respect for women’s right to self-determination in all aspects of life, including in deciding whether or not to bear children. Slowly the right wing has been winning the fight to restrict our fundamental right to privacy and control of our bodies by attempting to chip away at that right state by state.
Webster V Reproductive Health Services (1989) was the first Supreme Court decision that began to curtail Roe V Wade and chip away at the individual right to privacy. The Webster v. Reproductive Health Services ruled to what extent any state can impose restrictions on abortion by, for example, specifying at what stage in the life of an unborn fetus abortions might be obtained or whether government funds or facilities could be used to perform abortions. They did this under the watchful eye of Sandra Day O’Connor, she was the cover the Rehnquist Court needed and she willingly participated in the War on Women. Although she would never let them touch Roe V Wade, she did in this case allow a conservative supreme court to begin chip away at the edges of Roe V Wade.
It’s been downhill ever since. Think Progress has this great interactive map of current legislation in state legislatures to curtail women’s reproductive rights.
Let’s look at this map:
Legislation 2009 – Present
(incomplete I am sure)
Alabama SB 20: This bill would be known as the Abortion Coverage Prohibition Act.
SB 5: This bill would define the term “persons” to include all humans from the moment of fertilization and implantation into the womb.
SB 12: This bill would require a physician to perform an ultrasound, provide verbal explanation of the ultrasound, and display the images to the pregnant woman before performing an abortion.
HB 18: Abortion, prohibited on or after 20 weeks post-fertilization, exceptions for health of mother, Legislative findings regarding pain felt by unborn child, reports to Office of Vital Statistics, civil and criminal penalties, Alabama Pain-Capable Unborn Child Protection Act
Alabama has not repealed its ban on abortion, enacted in 1852, last amended in 1975.
Alaska: SB191 An Act requiring an ultrasound before an abortion
Arizona: HB 2865 A bill to restrict women’s access to birth control and abortion care.
HB 2036 Prohibiting abortion after twenty weeks
HB 2625 Allows businesses to refuse to cover contraceptive coverage
HB 2800 calls for a defunding of Planned Parenthood
Arkansas HB1113: “Partial-Birth Abortion Ban Act”
Connecticut: HB 5635 Intended to restrict the practices of crisis pregnancy centers, which often attract women by offering free ultrasounds. The law prohibits anyone from performing an obstetric ultrasound unless it has been ordered by “a licensed health care provider” and is for a “medical or diagnostic purpose.”
HB 6247 An act requiring the administration of an ultrasound procedure prior to the termination of a pregnancy.
HB 5099 Also requires the administration of an ultrasound procedure prior to termination of a pregnancy.
Florida: HB 277: 20 week ban
HB 839 20 week ban, no exceptions
SB 290 20 week ban
HB 1327 would require a physician to sign an affidavit stating that she/he is not performing an abortion because of the potential race or sex of a fetus or because of the pregnant woman’s race.
Georgia: HB 954: Fetal Pain bill, seeks to ban abortions after 20 weeks. McKillip argues that this is the point when a fetus can feel pain.
Idaho: SB 1349 Mandatory Ultrasound prior to abortion
HJMO 10 Employers right to refuse to cover contraception
Illinois: HB 4085: Forced ultrasound
HB 4117 targets facilities in which abortions are performed for excessive and unnecessary regulation in an effort to shut down women’s health care in Illinois.
Iowa: HF 2298 An Act relating to the prohibition of terminations of pregnancy and abortions, providing penalties, and including effective date provisions. (This Act attempts to ban any and all abortions, and is meant to challenge Roe V Wade)
HF 2033 a bill for an act establishing prerequisites to the performance of an abortion.
Kansas: SB 238 Pre-Abortion Notification Requirement
HB 2598 no health care services provided by any state agency, or any employee of a state agency while acting within the scope of such employee’s employment, shall include abortion.
Louisiana: SCR 101 & 102: Urges congress to reject a “Freedom of Choice Act” (an act that has never passed)
Michigan: HB 5343 20 week ban/fetal pain act
SB 150 Ultrasound requirement prior to abortion
Missouri: SB 749 Provides protections for religious beliefs as to the imposition of certain health care services such as abortion, contraception, or sterilization
HR 294 Urges the United States Congress to summarily reject the enactment of the federal Freedom of Choice Act.
Mississippi:HB 857 Unborn Child Protection Act 20 week ban
HC 61 Constitution; amend to provide that the right to life is a fundamental right and “person” applies to all humans from conception.
SC 555 Legislation to protect the life of an unborn child and to prohibit the use of public funds to pay for an abortion, except to save the life of the mother.
HB 1107 Forced Ultrasound prior to abortion.
Nebraska:LB 540 the bill which prohibits funding under this bill from going to “any entity that performs or promotes elective abortion services or with any entity that affiliates with any entity that performs or promotes elective abortion services.”
LB 675 Requiring ultrasound prior to abortion
New Hampshire: HB 1653 It is the purpose of this act to protect as a basic civil right the right of all health care providers and/or institutions, to decline to counsel, advise, pay for, provide, perform, assist, or participate in providing or performing health care services that violate their consciences. Such health care services may include, but are not limited to, abortion, artificial birth control, artificial insemination, assisted reproduction, human cloning, euthanasia, human embryonic stem-cell research, fetal experimentation, physician-assisted suicide, and sterilization.
New Jersey: AB 848 Requires physicians to provide patients opportunity to undergo obstetrical ultrasound or sonogram within 48 hours of performing abortion.
Nevada: Initiative — Personhood
North Dakota: HB 1371 limitations on the performance of abortion and abortion reporting requirements.
HB 1445 A bill that requires abortion-performing doctors to inform their patients that the abortion will end the life of a “whole, separate, unique, living human being.”
HCR 3015 A concurrent resolution urging Congress to reject the bill known as the Freedom of Choice Act, which would invalidate virtually every abortion-related regulation enacted by the people of North Dakota through their elected officials.
SB 2394 Bill prohibiting pregnant minors from consenting to their own prenatal care except in limited circumstances.
Oklahoma: HB 1595 The measure requires physicians to provide detailed information to the Oklahoma State Department of Health about the abortions they perform.
SB 1433 a statutory measure asserting that human life begins at conception.
SB 1274 the Heartbeat Informed Consent Act.
Pennsylvania: HB 1077 An Act providing for ultrasound test requirements to determine gestational ages of unborn children.
South Carolina: S 98 20 week ban, fetal pain bill
H 3406 Prohibits insurance plans offered through a health care exchange from covering abortion except in cases of life endangerment; prohibits private insurance plans from covering abortions except through “abortion riders” paid for with a separate premium.
H3026 Mandates a 24 hour waiting period after having an ultrasound prior to an abortion.
H3408 Allows healthcare providers and employees and health insurance providers the right to refuse to perform, counsel, make referrals for legal medical procedures or prescribe or administer drugs based on conscience objections. Amended to include insurance ban described above.
S.102 Prohibits insurance plans offered through a health care exchange from covering abortion except in cases of life endangerment, rape or incest.
S.165, S.245, and S.616 Establishes full legal personhood at the moment of fertilization, threatening access to legal abortion, contraception, and in vitro fertilization.
Tennessee: Amending the state constitution to restrict access to abortion.
Texas: 2011 Texas Legislature votes to cut off funding to Planned Parenthood leaving poor women. Some 130,000 low-income Texas women who get free exams and contraceptives through Medicaid could lose those benefits as a result of the dispute.
Mandatory Ultrasound Law: The impact of a controversial new Texas law that requires women to have a sonogram – and listen to a description of the fetus as well as its heartbeat – at least 24 hours before they can get an abortion is far from clear. Texas has at least 36 different pieces of legislation currently that will limit a what kind of health care a woman can receive in Texas.
Utah: HB 90 This bill amends the Utah Criminal Code by enacting the second degree felony of “criminal homicide abortion.”
HB 114 Mandates funding to defend HB 90 if challenged.
HB 222 requires that at least 24 hours before a physician performs an abortion of an unborn child who is at least 20 weeks gestational age, the woman on whom the abortion is performed shall be informed of any anesthetic or analgesic that would eliminate or alleviate organic pain to the unborn child and any medical risks associated with the anesthetic or analgesic.
Virginia: SB 817 Choose Life License Plate Proceeds from these plates are directed to pregnancy resource centers
HB 1285 Virginia Pain-Capable Unborn Child Protection Act; penalty prohibits an abortion after 20 weeks gestation unless, in reasonable medical judgment, the mother has a condition that so complicates her medical condition as to necessitate the abortion to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function. The prohibition is predicated on the assertion that a fetus is capable of feeling pain at 20 weeks.
HB 1 Provides that unborn children at every stage of development enjoy all the rights, privileges, and immunities available to other persons, citizens, and residents of the Commonwealth, subject only to the laws and constitutions of Virginia and the United States, precedents of the United States Supreme Court, and provisions to the contrary in the statutes of the Commonwealth.
HB 462 Requires that, as a component of informed consent to an abortion, to determine gestational age, every pregnant female shall undergo transabdominal ultrasound imaging and be given an opportunity to view the ultrasound image of her fetus prior to the abortion. Virginia’s governor signed this legislation on Wednesday March, 7, 2012.
This is a round up of some of the current assaults on reproductive health in state legislatures around the country. This is an indication of an all out war on the reproductive rights of women, including in some cases a war on contraception. Republicans all over the country should be forced to defend their party’s platform and what elected Republicans around the country are doing to curtail women’s reproductive rights. This is an assault on the constitutionally protected right to privacy. If we allow them to continue to chip away not-so-slowly at Roe v Wade it may be decades of legislative battles to to reassert those rights.
*The image above comes via the Guttmacher Institute.