1. Over-Medicalization and Corrupted Medicalization

TRAP laws represent an over-medicalization of abortion. Although they are often introduced and supported by legislators who make no secret of their aim to reduce the number of abortions performed,^{Reference Anderson11} they are later defended in court as necessary to protect the health of pregnant women. In the 2016 case of Whole Woman's Health v. Hellerstedt, the Supreme Court invalidated two TRAP provisions adopted by Texas House Bill 2 (HB2).¹² Justice Ginsburg explained in her concurrence that “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements. … Given those realities, it is beyond rational belief that HB2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’”¹³

An example of corrupted medicalization — medical practice corrupted by law — includes laws that require physicians to offer medication abortion only as approved by the Food and Drug Administration (FDA), even when the standard of care was a regimen that differed from that followed in the early clinical trials that led to FDA approval.^{Reference Flynn and Wilson14} Such “off label” physician prescribing is not only permitted in most other contexts, it represents the better provision of care. A second example of corrupted medicalization: Requirements that physicians provide patients with false or misleading information, such as that abortion carries risks of infertility or breast cancer.^{Reference Richardson and Nash15}

Mandatory ultrasounds represent an example of both over-medicalization and corrupted medicalization. North Carolina's ultrasound law, struck down in 2014 by the Fourth Circuit Court of Appeals in Stuart v. Camnitz, is an extreme example.¹⁶ That law required a physician to display the ultrasound monitor where the patient could see it, and to describe for the patient what the physician observed on the screen. If the patient wished to avoid seeing and hearing this information, she could cover her eyes and ears, but the physician had to push on, with no discretion to avoid the display and description, even if clearly unwanted by the patient and causing her distress. The Court found the statute's requirements to be “ideological in intent and in kind,” far removed from general informed consent requirements in other medical contexts and beyond even the heightened, pro-life state-supplied information approved in past cases. The Court explained: “This provision … finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired.”¹⁷

2. Effect on Women Living in Poverty

The over-medicalization and corrupted medicalization of abortion care disproportionately affect poor and low-income women. In 2014, 75% of abortions in the United States were performed on poor or low-income women.^{Reference Jerman, Jones and Onda18} While abortion rates have declined dramatically in recent years — early research suggests that the decline is due to greater use of contraception^{Reference Jones and Jerman19} — the use of abortion services has increasingly been concentrated in poorer women, as has the rate of unintended pregnancies.^{Reference Finer and Zolna20}

But poorer women are disproportionately affected by abortion restrictions in another way: such restrictions are likely to have a greater effect on the experience of women seeking an abortion. Longer waiting periods between an initial visit and the abortion can require more time off work, with greater consequences for hourly wage earners. With the implementation of Texas HB 2, women seeking a medication abortion in Texas were generally required to make four visits to a facility — a visit for pre-abortion counseling and ultrasound, first dosing of medication, second dosing of medication, and then a check-up.^{Reference Baum21} Along with other restrictions imposed on medication abortion by Texas law, these requirements were associated with a 70% decline in the number of medication abortions over a period of six months.²² Medication abortion in early pregnancy is preferred by many women because it is noninvasive and can be completed at home or in another setting preferred by women.²³

The delay caused by waiting periods and extra, medically unnecessary visits is compounded when women lack access to nearby facilities. Across the country, many women travel great distances to access a clinic providing abortion services. In 2018, six states had only one health care provider performing abortions.^{Reference Sanders24} Over 90% of women in the U.S. live in a county in which there are no providers offering abortion services.²⁵ Unnecessary restrictions on telemedicine to provide certain abortion services further impede access.²⁶

According to the district court in the Whole Woman's Health case, had the Texas law that was eventually struck down been given full effect, the number of Texas women of reproductive age living more than 200 miles from the nearest abortion clinic would have increased from 10,000 to 750,000.²⁷ But as the Court also pointed out, for some women, 50 miles can matter as much as 200: “The act's two requirements erect a particularly high barrier for poor, rural, or disadvantaged women throughout Texas, regardless of the absolute distance they may have to travel to obtain an abortion.”²⁸ Women in the border communities would have been most affected “due to longer travel distances (in some cases exceeding 500 miles), higher-than-average poverty levels, and other issues uniquely associated with minority and immigrant populations.”²⁹

The distance that women have to travel to obtain abortion services adds to the time off from work and perhaps time away from other children — 59% of women who obtain an abortion already have one child³⁰ — as well as to the expense for travel and hotel. In order to find the money for these additional expenses and time, abortions can be further delayed. While 91.5% of abortions occur in the first trimester, 7.2% of abortions occur in the second trimester.^{Reference Jatlaoui, Shah and Mandel31} Later abortions require more intensive medical intrusion, with greater medical risks.^{Reference Kliff32}

Mississippi's 2018 Gestational Age Act claims that it protects women's health by banning most abortions after 15 weeks; it cites the increased risk of medical complications as gestational age increases.³³ At the same time, Mississippi has instituted various restrictions that can add to women's delay in obtaining an abortion — for example, the requirements of an in-person counseling session followed by a waiting period.³⁴ Mississippi has also passed facility-based restrictions aimed at closing down clinics and in 2012 placed impossible-to-meet restrictions on the state's single remaining facility. The governor proclaimed quite transparently that the aim of the legislation was “to end abortion in Mississippi.”³⁵ He did not even pretend it was for women's health.

In sum, abortion access is denied, restricted, or delayed by unnecessary regulations that add to the expense of obtaining the procedure, require multiple visits, result in clinic closures or depress the number of facilities and providers, or simply ban or limit certain methods such as medication abortions. There are other costs as well — to privacy, for example. Women living under the burdens of Texas's laws say that arranging for the extended travel caused by clinic closures meant that they had to disclose their situation to more people than they wanted to.³⁶ In addition, restrictive legislation and the political rhetoric surrounding it stigma-tizes abortion care, piling shame and embarrassment onto the women seeking such care.

The effect of these barriers to safe abortion care fall disproportionately on poorer women and cause them both direct and indirect harm — a reality that has long been recognized but about which little has been done. Speaking at a Duke Law School event in 2015, Justice Ruth Bader Ginsburg observed:

3. A Punishing Burden

Do similarly disproportionate burdens on the poor occur in other contexts of health and medical care? Yes, but also in an important way, no. The “Medicalization of Poverty” project of which this article is a part brings attention to the fact that we treat illness and disability associated with poverty in the clinic, rather than preventing these down-stream ills by addressing the causes and consequences of poverty, such as sub-standard housing. The human toll is greater than the fact that a person living in a food desert may become diabetic, the child living in moldy housing gets asthma, the woman without access to contraception is now pregnant.^{Reference Weeks, Mendenhall and Oberman38} The people who come to the clinic or hospital because of poverty-induced illness or disability not only have to bear its physical burdens, they also have to endure being in the sick role — with the dependency, infantilization, lack of privacy, and indignity that often accompanies that role.^{Reference Sage and Laurin39} The human dimension of medicalizing poverty is not adequately appreciated in practice and in policy.

But what we see happening in the realm of women's sexual and reproductive health is of a different order. It is not merely a failure to alleviate poverty and its medical harms because of other priorities or legislative or ideological disagreements about private or public solutions, or even greed or lack of interest or compassion. Instead, in the case of unnecessary abortion regulations, the medical harms and indignities are inflicted on women, and women living in poverty in particular, with full knowledge and intention. It is meant to punish.

When we visualize — and how can one not, upon reading the description in Stuart v. Camnitz — the pregnant woman forced to undergo an unnecessary vaginal ultrasound and then closing her eyes and covering her ears to avoid information her physician is forced to recite, the woman we see is likely struggling financially. The numbers alone tell us that. She is likely to be poor, as are the women who are more likely to be drug-tested when they are pregnant, and more likely to be sterilized without their consent, and more likely to be forced to submit to coercive interventions in pregnancy.^{Reference DeBruin, Marshall and Teays40}

4. Who Protects Women's Health?

Current approaches to combatting the government-imposed harms of punishing abortion regulations are inadequate. In both constitutional advocacy and in culture, we speak of protecting women's “choice.” A shift in approach is needed which recognizes the importance of women's health, well-being, and dignity, not simply their ability to make important personal decisions. Most importantly, women need the power to claim interests in their own health, well-being, and dignity. Current constitutional law vests the government and sometimes the medical profession with the power to protect women's health, not women themselves. This is a fundamental problem. Even recent cases elide it.

A quick review of abortion jurisprudence shows that although Whole Woman's Health and appeals court cases like Stuart v. Camnitz have reasonable, and indeed promising, outcomes, they rest on insufficient ground.

5. Reframing Reproductive Rights as Health Rights

Constitutional law on the right to abortion — on rights generally — is complex. It is easy to get lost in the precedents, in the precise language — or, as is often the case, the imprecise language — of the cases. Society focuses on who is on the court and whether that will make a difference to the next Supreme Court case. We debate the importance of stare decisis and the integrity of the institution of the judiciary. All of those pursuits are vitally important. But it is time to focus more directly on what the abortion right entails, what is its basis, and how women's lives and health are actually affected by the obstacles that are placed in their paths to exercising their rights.

Older cases contain the seeds of a right to abortion standing on more than choice.^{Reference Shepherd58} That basis might be described as a constellation of interests — autonomy, bodily integrity, dignity, well-being, health, and equal protection. Supreme Court recognition of the right of immature minors to an abortion if in the minor's “best interests” is clearly based on something other than minors' right to choose, as they lack the maturity to choose.⁵⁹ Why are similar interests in well-being ignored when girls become women? An expanded understanding of the basis for the right can help shape its contours towards protecting earlier, safer, and more humane access.

More boldly, it may be possible to find support in precedent for a separate constitutional right to protect one's own health. Possible avenues of inquiry are the health exception for post-viability abortions (to the extent it still remains intact, following Gonzales v. Carhart); the health exception for mandatory vaccinations,⁶⁰ the physician-assisted suicide case (where some of the justices suggested that their rejection of a right to physician aid in hastening death was conditioned on the legal availability of palliative care);^{Reference Burt61} “right to try” laws and court challenges for early access to experimental drugs;^{Reference McGinley62} and international conventions recognizing a right to health, including reproductive health.^{Reference Hammell63}

6. A More “Satisfactory Situation”

Women living in poverty are the primary objects of laws that restrict abortion practices in ways that endanger or diminish their health. Currently, they can claim a “right to choose an abortion” but have little other control — constitutionally speaking — about how they might exercise that right. A new approach is needed.

The traditional liberal mantra on abortion has been that it should be “safe, legal, and rare.”^{Reference Dehlendorf, Harris and Weitz64} But as some public health advocates have recently pointed out, this approach suggests that the goal of policy should be reducing abortions rather than reducing the circumstances in which abortion is sought⁶⁵ — whether that is an unwanted pregnancy for some women or a wanted pregnancy for others who have no reasonable means to provide for a resulting child.^{Reference Oberman66}

But there's another problem with the “safe, legal, and rare” approach to abortion. We know it's not rare. Twenty-five percent of women in the U.S. will have had an abortion before age 45.^{Reference Jones and Jerman67} That statistic means we all know women who have had an abortion. They are our mothers, sisters, aunts, nieces, friends, bosses, employees, neighbors, and sometimes ourselves.

Why do women have abortions? “The three most common reasons — each cited by three-fourths of patients [surveyed] — were concern for or responsibility to other individuals; the inability to afford raising a child; and the belief that having a baby would interfere with work, school or the ability to care for dependents.”^{Reference Finer68} Hardly reasons to demonize women seeking an abortion. And certainly no justification for increasing their risks of harm as they exercise a constitutional right.

It's time to replace “safe, legal, and rare,” with “earliest, safest and with the greatest respect for women's dignity.” And time to recognize women's right in their own health.