Will the Court Restrict Abortion to the Wealthy?

Olivier Douliery/Sipa USA via AP Images)

Supporters of legal access to abortion, as well as anti-abortion activists, rally outside the Supreme Court as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt on March 2, 2016. 

The United States has failed to harness the economic potential of women and people of color, concludes a recent report by the Organization for Economic Cooperation and Development that points to a gender wage gap, the use of criminal records in hiring decisions, and a lack of support for paid family leave and child care as the main culprits

But in a major omission, the June 17 report failed to note another important factor blocking women from full economic participation: a growing set of restrictions on women’s reproductive autonomy, which have a disproportionate impact on low-income women.

As the Supreme Court prepares to decide on the blockbuster abortion case Whole Woman’s Health v. Hellerstedt, it’s worth remembering that one of the ruling’s main implications will be economic. That’s because women’s control of their own fertility is a key driver of our nation’s economic success. Women’s economic well-being, moreover, is also a core element of the legal doctrine undergirding both Roe v. Wade and Planned Parenthood v. Casey, the two major Supreme Court cases that provide a constitutional framework for abortion rights in the U.S. While these two cases are remembered for protecting abortions in the context of a trimester structure, freedom from undue burdens and a right to privacy, both also rest on a recognition of the connection between reproductive decision-making and economic self-sufficiency for women.

The data are incontrovertible that access to contraception and abortion have benefitted women tremendously. The availability of the pill in the 1960s marked a major advance in women’s economic participation and educational achievement, as did subsequent advances in reproductive technologies and legal abortion. Family planning programs have had major consequences not only for the women who have been able to get educations or to enter the workforce, but also for communities where they have affected poverty levels and children’s health and wellbeing.

Those opposed to abortion and to women’s full emancipation have found a clever way, however, to undermine legal access to reproductive health care. By focusing on restrictions that raise the cost of abortion and contraception, they have targeted low-income women, eroding the gains of past decades. In 1976, Congress sacrificed poor women’s rights when it approved the Hyde Amendment ban on federal funding for abortions under Medicaid, but since then those determined to erode legal abortion have gone much further.

At issue in the Whole Woman’s Health case is a set of Texas abortion restrictions that have led to widespread clinic closures by applying regulatory burdens ostensibly designed to make reproductive care safer, but that in fact simply make it too costly to provide this needed health care. As women have lost access to clinics in Texas and other states with similar restrictions, they have been forced to travel long distances. That has meant paying for transportation, as well as for hotels and restaurants, both because the clinics are so far away and because many states have also imposed waiting periods and counseling requirements on women seeking abortions. The resulting delays have forced many women to bear unwanted children because they got into clinics too late in their pregnancies.

For wealthier women, these restrictions have less impact because travel costs do not pose the same insurmountable barrier, and because they enjoy better access to quality contraception and preventive care. Such women don't face the same existential dilemma and may not even be aware how much women’s rights have eroded. 

In a recent opinion piece for The New York Times, Texas educator Valerie Patterson described the horrific experience of finding out that her pregnancy would end in either miscarriage or the likely delivery of a stillborn child due to a fetal abnormality. After deciding that abortion was the least-worst option, Patterson discovered that she could not have the procedure done in Texas because so many clinics had closed. Patterson was forced to travel to Florida, at a cost of close to $5,000. She warns that women will not stop needing abortions, but that those who can’t afford the travel costs will use dangerous and unregulated methods to end their pregnancies. Patterson asks, “What happens to people in my situation who don’t have the ability to do what I just did?” 

Sadly, we already know the answer. In Texas, the restrictions at issue in Whole Woman’s Health have already had an immediate impact on low-income women. Researchers at the University of Texas, Austin, documented that after Texas cut funding for Planned Parenthood clinics, these women had to resort to less-effective contraception and had more unwanted pregnancies, resulting in a 27 percent increase in births paid for by Medicaid. 

“This new research shows the devastating consequences for women when politicians block access to care at Planned Parenthood. Politicians have claimed time and again that our patients can simply go to other health care providers—and tragically that's not the case. Instead, women were left out in the cold,” Cecile Richards, president of Planned Parenthood Federation of America, said in a statement.

Conversely, low-income women in Texas and elsewhere with better abortion access have, up until now, described it as a vital aspect of their success. An amicus brief filed in the Hellerstedt case by the Center for Reproductive Rights recounts the stories of women lawyers whose abortions enabled them to escape poverty, or others in difficult circumstances who went on to flourish in the legal profession because they had the freedom to make their own reproductive choices.

Said one signer to the brief, “I had not considered an abortion until one day I stepped back and took an honest look at my very grim reality: I had just quit my job at a fast food restaurant where I was earning minimum wage, I took a leave of absence from school, I had no source of income to support myself and no health care, I had already missed a semester of 11th grade and was behind in my studies, I was living in a three-bedroom house with nine people in an economically struggling area of town and I had no child care options available, besides dropping out of school. … My ability to have access to a low-cost abortion fundamentally altered the cost of my life and my ability to fully participate not only in society; but in my life.”

Women today make up two-thirds of minimum wage workers—will they be able to escape situations like this one without the same reproductive freedoms? It seems unlikely.

Such restrictions are all the more onerous coming on top of the Hyde Amendment, whose terrible impact the nation has done little to remedy. The combination of new restrictions that make it difficult to access contraceptive care and the ban on federal funding for abortion has created a reproductive health fissure between American women of different wage levels, and has made it increasingly difficult for those on the lower end of the income scale to climb out of poverty. Low-income women in Texas are not the only ones facing much greater difficulties obtaining abortions. Over the past year, 14 states have passed more than 30 anti-abortion laws, including longer waiting periods, 20-week bans, elimination of common methods of second-trimester abortions, and higher regulatory requirements for clinics.

The nation’s growing income inequality in America has moved to the center of this presidential election, thanks in part to the Occupy Wall Street movement and the Bernie Sanders campaign. But a major cause of the growing divide between rich and poor is the economic inequity in women’s access to contraception and abortion. For some women—women who can afford to pay—reproductive rights are not in danger. But if the Supreme Court upholds Texas-style restrictions in Hellerstedt, the effect will be to make abortion completely inaccessible to far too many women. For these women, abortion won’t be technically illegal, but as a practical matter, because of its prohibitive cost, it might as well be.

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