In 2013, AFJ’s award-winning First Monday Film Roe at Risk documented the increasingly radical state laws that are trampling women’s reproductive rights across the country. The film highlighted anti-abortion laws in Mississippi and Texas and their devastating effects on women of color and low-income women living in those states.

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In 2016,  in Whole Women’s Health v. Hellerstedt, the Supreme Court struck down a restrictive Texas law that required physicians who perform abortions to have admitting privileges at a nearby hospital and required abortion clinics to meet ambulatory surgical center requirements, holding that such substantial obstacles place an undue burden on women seeking abortion access.

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The Court’s last abortion case prior to Whole Women’s Health, Gonzales v. Carhart, was decided in 2007. In that case, the Court upheld a federal ban on so-called “partial-birth” abortions even though the law did not include an exception to protect a woman’s health. Gonzales is also contrary to the Court’s decision just seven years before in Sternberg v. Carhart, which struck down a similar ban in Nebraska. The only difference? By the time Gonzales was decided, Justice Sandra Day O’Connor, the first woman ever to serve on the Supreme Court, had been replaced by Justice Samuel Alito, who as a government lawyer advocated a legal strategy to “advance the goal[] of bringing about the eventual overruling of Roe v. Wade.”

Over the last several years, women’s access to safe and legal abortions has continued to deteriorate dramatically. According to the Guttmacher Institute, states  enacted 334 new abortion restrictions between 2010 and July 2016. These new restrictions were increasingly written in the form of Targeted Regulation of Abortion Providers, or TRAP laws. Those laws, much like the one ruled unconstitutional in Whole Women’s Health, applied requirements on clinics and physicians performing abortions that went well beyond what is needed to ensure patient safety. As Justice Breyer wrote in the majority opinion for Whole Women’s Health, “the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”

 

The 334 abortion restrictions enacted by states from 2011 to July 2016 account for 30% of all abortion restrictions since Roe v. Wade.

While the decision in Whole Women’s Health is an important step in stemming the tide of state legislation limiting women’s access to abortion, difficulties remain. Over the last year, states have attempted to defund family planning providers (including Planned Parenthood) by, among other things, restricting reimbursement under Medicaid and limiting access to state funds. Moreover, many states have passed legislation restricting later abortions, including North Dakota and South Carolina, both of which banned abortions 20 weeks post-fertilization.

As the assault on a woman’s right to choose continues, the Supreme Court will continue playing an important role in safeguarding the promise of Roe.

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