From anti-abortion bills in states around the country in places like Virginia, Texas and Florida, to thousands losing access to birth-control subsidies as the battle enters the presidential campaign, reporductive rights are on many Americans’ minds these days. The Cornhusker State is no different, given recent happenings at the State Capitol.
What to make of the possible ramifications of these measures? How does the very tone and nature of the debate surrounding women’s health affect women? What legal challenges may await? University of Nebraska Assistant Professor of Law Beth Burkstrand-Reid is a national expert in the relationship between law and pregnancy, including abortion and women’s health. She shares some thoughts on recent developments on these topics.
“Women’s voices are missing from debates over reproductive rights. Women’s reproductive health is now a political sport. But no matter what side people are on, there is no winner.
“The right to have an abortion is protected by the U.S. Constitution. Any legal effort that impacts women’s health is legally questionable.
“The impact of these laws is to make it difficult to get an abortion. But there is a second impact. These laws tell women that they are not responsible decision makers.
“The law treats women like they need to be protected from themselves. That smacks of how the law treated women in the 1800s, when wives didn’t have the right to make legal decisions about themselves.
“Women make health-related decisions, especially the decision to have an abortion, after serious thought. But many of the legal restrictions on abortion portray women as people who rush into ending a pregnancy without thinking about it.
“Some of these regulations amount to legal bullying. Women are emotionally capable of withstanding that bullying. But should they have to?”
“Women who are honest about the difficulty of deciding to have an abortion aren’t rewarded for their honesty—they are chastised for it. So many of them remain quiet, which skews discussion of the topic.”
“In an effort to legally protect what some call the life of a fetus, we are harming the lives of women. This is the true impact of laws regulating abortion, which is perverse given that we are trying to propel these women toward motherhood.
“The Supreme Court has made it clear that the impact of abortion-related regulations on women’s health must be considered. How seriously we have to take women’s health, though, is in question.
“Just as we have to be honest about what we are doing when we terminate a pregnancy, we must be honest about what we are doing when we are trying to convince a woman not to. Legally and morally, the means matter.”
On how the stigma of abortion affects public discourse on the topic:
“Stigmatized doesn’t begin to describe how abortion is treated in society. Yet it is one of the more common medical procedures women may undergo in their lifetime.
“During my years of teaching law, students have told stories of being raped. None has spoken of her experience of having an abortion. That tells you how stigmatized abortion is.”
On Nebraska’s centrality to the women’s health debate:
“Nebraska is in the center of the country — and the center of the controversy. Nebraska is a flashpoint because of an unusual intersection of a powerful and conservative religious culture, a visible abortion provider and a unique form of state government that makes it easy to enact sweeping legislation.
“The state is a reproductive-health regulation pioneer, for better or worse. The major litigation over partial-birth abortion started in this state. We’ve banned most abortions at 20 weeks, which is a violation of current constitutional law. Now the state and local religious organizations are challenging the contraception mandate — even as it is still being debated and refined.
“We have one of the most conservative Catholic dioceses in the country, and it is activist, as is evidenced by its participation in the challenge to the federal birth control coverage mandate.
“Our unique form of state government, a unicameral, allows speedy passage of legislation.
“In 2006, according to Gutmaccher, we ranked last in terms of state efforts to prevent unplanned pregnancies.
“Whatever restrictions will be passed next will be certain to be exported to other states, adopted, and challenged — on the taxpayer’s dime.”
On abortion and the law:
“Women’s bodies are being treated like legal laboratories. Laws prioritize the fetus over the woman. This can been seen in the shrinking of health exceptions, which now often don’t cover mental health or illnesses that are not life threatening.
“With extremely narrow exceptions, federal law prohibits the use of government funding for abortion services. It’s not accurate to suggest that any federal money is going toward abortion.
“The impact of these laws is both to make it difficult to get an abortion and to devalue the decision-making ability of women. The impact of these laws, simply put, is to make it difficult to get an abortion. Most women in do not have access to providers, and news laws further make access harder. There are fewer clinics, they are farther away, and there is more likely to be a waiting period.
“All of this drives up the cost. This means women wait until later to have abortions, which is in no one’s interest. Later abortions are more expensive, riskier to the woman’s health, and less legally protected.
“Is it the point of the laws to make women suffer emotionally as they make this decision? It seems so. But the additional impact is to tell women that they are not responsible decision makers.
On waiting periods:
“Waiting periods are the clearest legal expression of distrust of women’s decisionmaking ability. They are tantamount to telling women to ’sleep on it’ as if they haven’t already considered the impact of a pregnancy on their life.”
On gestational and procedural limitations:
“States have a legal right to limit when a woman can have an abortion. And they have a legal right to try, within limits, to convince a woman not to terminate a pregnancy. They question is how much emotional harm they can inflict on the woman when trying to do so.
“In Nebraska, after 20 weeks, a woman who is pregnant must carry the pregnancy to term, even if the death of the fetus is inevitable, unless her life or physical health is seriously threatened. One woman, who faced terminating a pregnancy due to a fatal fetal problem, told me her decision was propelled by of the agony of carrying a fetus, of being congratulated on her pregnancy, or being asked the sex, all the while knowing that the fetus would die in utero or shortly after birth.”
On fetal pain:
“In most cases the fetal pain debate, which focuses on later-term abortions, is a red herring. That is not when the vast majority of abortions take place.”
On informed consent:
“Abortion restrictions treat women like children. By requiring women be told by the state what they should consider prior to terminating a pregnancy, we are saying to women that we don’t trust them to be thoughtful. This is insulting to all women regardless of their stance on abortion.”
On parental consent/notice laws involving minors:
“If minor women need counsel on their decision, ideally they would talk to a parent. But some minors’ circumstances are not ideal. Appearing before a judge is scary to even a seasoned lawyer, Nebraska, like many states requires minors notify a parent in order to get an abortion or to go to a judge instead and get permission. The forms necessary to request such permission are often hidden or unavailable in court clerk offices. Judicial decisions on these requests are difficult to predict.”
On post-coital contraception, or Plan B:
“Access to birth control is constitutionally protected, but even that is now in doubt given the controversies surrounding Plan B.”
“Protecting religious freedom is certainly an issue when it comes to reproductive health services, and it is a difficult one. Just as religious freedom is legally protected, so is a woman’s right to have an abortion. Often we forget the latter.”
On measures designed to defund Planned Parenthood:
“Passing a defunding bill now is tantamount to courting a legal challenge, action against the state by the federal government or both.
“Federal money granted to Planned Parenthood is given for family planning for limited income individuals. Under federal law it cannot be used for abortion services except in extremely narrow circumstances, such as saving the life of the pregnant woman. Representations to the contrary are disingenuous at best.”