Undue Burdens on Abortion

By: Lauren Roemke

The Supreme Court has made it clear that women have a constitutional right to abortion, and that states can not pass laws that create an undue burden for women exercising that right (Planned Parenthood v. Casey). In an attempt to circumvent the constitution, anti-choice politicians in Texas passed a law known as HB2 in 2013. While the stated aim of HB2 was to “protect women’s health,” its restrictions effectively transformed legal abortion into a mere theoretical right in Texas (http://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt). Two of the law’s most notable requirements are that doctors who provide abortion services must obtain admitting privileges at local hospitals and every health care facility offering abortion care must make costly changes to conform with the same building requirements as ambulatory surgical centers (ASC)(http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). Supporters of HB2 cite botched abortions and reckless doctors as evidence of the need for these greater requirements. Opponents of the law argue that abortions are already very safe and the tales of botched abortions are an overblown propaganda tactic (http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). On March 2nd, the Supreme Court heard oral arguments for the case Whole Woman’s Health v. Hellerdstadt, which challenges the constitutionality of HB2. The Court’s decision will have widespread implications. According to the Guttmacher Institute, states have adopted 288 different abortion restrictions since the 2010 mid-term elections (https://www.guttmacher.org/article/2016/01/2015-year-end-state-policy-roundup?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Guttmacher+%28New+from+the+Guttmacher+Institute%29). At oral argument, Justice Kennedy, considered the crucial vote in the case, said, “The undue burden test is weighed against what the state’s interest is.” The weaker the state’s justification for the law, he suggested, the greater burden it imposes (http://www.nytimes.com/2016/03/03/us/politics/supreme-court-abortion-texas.html?_r=0). As explored below, these new requirements impose an undue burden because they are not only medically unnecessary, but also jeopardize women’s health.

Medically Unnecessary

The new requirements for abortion centers are medically unnecessary because abortion is already one of the safest medical procedures and the new requirements fail to provide additional benefits. Data do not support the state’s briefs that suggest abortion clinics are a lawless frontier in which reckless doctors operate on frightened young women and dump them in hospital ER’s if anything goes wrong (http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). Instead, abortion procedures have a mortality rate 14 times lower than that associated with childbirth (the likely outcome if a woman does not obtain an abortion) and less than half the mortality rate of a colonoscopy (a comparable outpatient procedure that is not subject to hospital admitting and building code requirements)( http://www.austinchronicle.com/news/2016-01-29/roes-end/). In effect, the requirements unfairly single out women’s health care providers and serve to drive them out of practice. In addition to being medically unnecessary, the American Medical Association, the American College of Obstetrician & Gynecologists, and the American Academy of Family Physicians wrote, “There is incontrovertible evidence that [the Hb2’s ASC and privileges requirements] are impeding women’s access to quality abortion care” (http://www.austinchronicle.com/news/2016-01-29/roes-end/).

Jeopardizes Women’s Health

HB2’s new requirements jeopardize women’s health by creating longer wait times, which increases the risk of complications from legal abortions and the number of self-induced abortions. About half of Texas’s abortion clinics closed when the admitting privileges requirement went into effect. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive age women in Texas (http://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt). According to research by the Texas Policy Evaluation Project (TXPEP), wait times at clinics increased from five days or fewer to sometimes as much as 20 days after the first requirement went into effect. Planned Parenthood experienced a 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014 (http://www.austinchronicle.com/news/2016-01-29/roes-end/). Due to these delays, women have to get later term abortions, which have a higher risk of complications and are more expensive. Studies have shown that the number of second-trimester abortions have risen in Texas since the law went into effect (http://www.austinchronicle.com/news/2016-01-29/roes-end/). The decreased number of clinics and increased cost of later term abortions are particularly significant given that more than 40% of women that receive abortions are poor and 61% already have at least one child (https://www.guttmacher.org/fact-sheet/induced-abortion-united-states). The strain of increased travel time and the cost of childcare, lodging, and time off work makes access to abortion procedures all the more infeasible. The decline in availability of legal abortions drives many women to perform self-induced abortions. Amy Miller recounts a phone call to her clinic. Temporarily closed, the clinic referred the caller to the nearest licensed facility, 250 miles away in San Antonio. The caller responded, “I cannot take that much time off work and afford childcare to travel to San Antonio... So how about I tell you what I have in my cupboards, under my sink, and in my medicine cabinet, and you tell me what to use and how to use it in order to do my own abortion” (https://www.guttmacher.org/fact-sheet/induced-abortion-united-states). According to studies by TXPEP self-induced abortions are more common in Texas than in other parts of the country (http://www.utexas.edu/cola/txpep/releases/self-induction-release.php). Reproductive health advocates warn that if the Supreme Court fails to block the final part of the law, the number of women who are forced to self-induce will inevitably rise.

Constitutional Rights

Theoretical rights without practical availability are no rights at all. The constitutionally protected right to abortion isn’t meaningful if there isn’t access to clinics. HB2 and similar laws around the country work to eliminate access to safe abortions. In terms of the significance of Whole Woman’s Health, lead attorney Stephanie Toti summarizes, “The justices will determine whether women will continue to have access to safe and legal abortion or whether we’re going to turn the clock back 40 years and force more women to take matters into their own hands” (http://www.austinchronicle.com/news/2016-01-29/roes-end/). Although abortion continues to be a divisive issue, effectively eliminating a previously constitutionally protected right should give all Americans cause for concern.

To Find Out More:

• http://www.trappeddocumentary.com

Defining the State in 2016: America’s Financial Oligarchy

-- By LaurenRoemke - 23 Mar 2016

America’s state in 2016 most reflects a financial oligarchy. A few wealthy citizens and interest groups disproportionately control U.S. policymaking compared to median-income citizens (https://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf). Over half the money given to presidential candidates in the 2016 campaign came from just 158 families (http://www.nytimes.com/interactive/2015/10/11/us/politics/2016-presidential-election-super-pac-donors.html?_r=0), and in 2012, lobbyists and interest groups spent $6.7 billion to influence Congress (http://sunlightfoundation.com/blog/2013/11/25/how-much-lobbying-is-there-in-washington-its-double-what-you-think/). As a result, people have lost faith in our political institutions; Americans’ trust in Congress declined from 42% in 1973 to just 7% in 2014 (http://www.gallup.com/poll/171710/public-faith-congress-falls-again-hits-historic-low.aspx). There is a widespread and accurate belief that our political institutions have lost all remnants of legitimacy and can no longer be used to effectuate change, as reflected by the Occupy Wall Street movement of 2008 and citizen rage in the 2016 election. In order to dismantle the oligarchic structure and create a participatory democracy, it will help to first understand the financial oligarchy’s origins and consequences.

Origins of America’s Oligarchy

In Winner Takes All Politics, Hacker and Pierson argue that President Carter’s administration kicked off income inequality through tax code revisions. In 1978, the Carter administration and congress cut the top rate of the capital gains tax from 48% to 28% - “an enormous boon for wealthy Americans” (http://www.motherjones.com/politics/2010/12/how-oligarchs-took-america). Simultaneously, efforts to make it easier to unionize died in the Senate and a powerful business lobby defeated a proposed new agency that was to work on behalf of average Americans. Carter’s successor, Ronald Reagan, achieved a “fundamental rewriting of the nation’s tax laws in favor of winner-take-all outcomes” through his 1981 Economic Recovery and Tax Act, which cut taxes for corporations, reduced capital gains and estate taxes, and provided a 10% income tax exclusion for married couples in two-earner families (http://www.motherjones.com/politics/2010/12/how-oligarchs-took-america).

These policies continued into the presidencies of George H.W. Bush, Bill Clinton, and George W. Bush, allowing the rich to pull ahead of everyone else. Citizens and interest groups with this accumulated wealth could now mount stronger lobbying campaigns to achieve policies that tilted the playing field ever more steeply in their favor. The U.S. Supreme Court’s decision, Citizens United v. FEC (2010), allowed the wealthy few to gain an even stronger foothold in influencing U.S. policy by allowing unlimited funds to be spent in U.S. elections. America’s financial oligarchy has its origins in the 1970’s and 80’s tax cuts for the wealthy. These tax cuts not only enabled the concentration of wealth, but also of power through use of the lobby industry, revolving door policies, and campaign finance reforms.

Consequences of America’s Oligarchy

Holmes suggests that in order to understanding something, we must look at what it does, or its consequences. In order to fully understand America’s financial oligarchy, we must look at what it does. First, it is not surprising that under a financial oligarchy, wealth inequality continues to grow. Today, the wealthiest 160,000 families own as much wealth as the poorest 145 million families (http://fortune.com/2014/10/31/inequality-wealth-income-us/). Second, laws in the U.S. disproportionately favor employers over employees. Of developed countries, the U.S. has the smallest percentage of women receiving paid maternity leave (http://www.politifact.com/truth-o-meter/statements/2015/jan/21/barack-obama/barack-obama-says-united-states-only-developed-cou/). U.S. employers also have greater freedom than their European counterparts when it comes to terminating employees (https://www.jacksonlewis.com/media/pnc/9/media.2089.pdf). Lastly, unions in the U.S. have become more passive in the face of declining membership and aggressive management. Today, unions represent just 7.4% of private-sector workers and many are understandably reluctant to strike for fear of repercussions (http://www.nytimes.com/2009/04/05/weekinreview/05greenhouse.html). For example, when the nation’s air traffic controllers engaged in an illegal strike in 1981, President Reagan fired the 11,500 striking traffic controllers and immediately hired replacements. In 2008, American unions engaged in 159 work stoppages, down from 1,352 in 1981 (http://www.nytimes.com/2009/04/05/weekinreview/05greenhouse.html). These absences of employee protections impede the ability of workers to bargain for higher wages and salaries, creating a wider gulf between the haves and the have-nots. As a consequence, very few families have enough wealth to sustain a job loss or high medical bill. In fact, 44% of households have less than three months of savings to live above the poverty level (http://www.marketwatch.com/story/americans-are-trapped-in-a-cycle-of-financial-insecurity-2016-01-25).

In With Liberty and Justice for Some, Glenn Greenwald argues that legal inequality is both a consequence and contributor of financial and political inequality. The past four decades have witnessed the rise of a two-tiered justice system that shields and immunizes the elite from the consequences of their criminal acts, yet subjects ordinary citizens to very harsh criminal sanctions. Examples include the failure to prosecute 2008 financial fraud criminals, and Obama officials’ decision to shield Bush torturers from all accountability.

Considering the consequences of America’s financial oligarchy, it is clear that the wealthy elite are engaged in class-based, self-interested advocacy that tilts the playing field ever more steeply in their favor to the disadvantage of ordinary citizens.

Moving Forward

The path moving forward is far from clear. Working within the system is unlikely to achieve meaningful results given the elite’s ability to maintain the status quo through resources and accumulated experience. At the same time, Theodore Roosevelt resolved America’s plutocracy of the late 19th and early 20th century through trust busting, and in 1907, banning corporate donations to federal campaigns, suggesting reform through existing channels may be possible. Ultimately, this transformation will not be easily accomplished. We must protest, advocate for change, and devise novel solutions if we are to transform our current government of the 1%, by the 1%, for the 1%, into a government of the people, by the people, for the people (http://www.vanityfair.com/news/2011/05/top-one-percent-201105).

Works Cited

• Greenwald, Glenn (2012). With Liberty and Justice for Some. Picador.
• Hacker, Jacob and Paul Pierson (2010). Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class. New York, New York: Simon & Schuster.
• Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897)

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, LaurenRoemke
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.