Why Every State Should Enshrine Roe

Anti-abortion activists, conservative pundits and apparently Donald Trump are outraged about New York’s Reproductive Health Act. Anticipating the demise of Roe v. Wadebecause of Trump’s recent appointments to the Supreme Court, the New York Assembly overturned antiquated pre-Roe laws still on the books, removing abortion from the criminal code.

Opponents claim that the law allows for unrestricted access to abortion through the ninth month of pregnancy. They are wrong.

The Reproductive Health Act decriminalized abortion in New York State. (RHA Vote)

The New York law allows abortion after 24 weeks only in the rare circumstances when a woman’s life or health is at risk or the fetus will not survive birth as determined by a medical professional.

In fact, third-trimester abortion is extremely rare. According to the Centers for Disease Control and Prevention, only 1.3 percent of abortions occur after 20 weeks, and even fewer in the third trimester.

Most women decide whether to continue a pregnancy early on and then stick to their decisions. When third-trimester abortions are necessary is when conditions develop late in pregnancy that threaten the life or health of the pregnant woman, or the health and viability of the fetus.

Opponents of the New York law assume that women and their doctors will lie about whether the pregnancy is a threat to the woman’s life or health. Or they believe that the state should force women to risk their lives and health to sustain a fetus. Both devalue women’s lives and violate their moral authority—their trustworthiness to make decisions that are right and good.

As in New York under the new law, many states allow third-trimester abortions when the life or health of a pregnant person is at risk. These states require that doctors certify medical necessity for abortion late in pregnancy and there is no evidence whatsoever that women and doctors lie about the medical necessity of abortion.

We must not base our laws on such unfounded claims, especially when the lack of exceptions for the life or health of pregnant women is likely to result in death or grave bodily injury, as history has amply demonstrated. These dangers fall particularly harshly on women who are African-American, Latina, Indigenous and immigrants and are more likely to lack access to quality health care.

The recent attacks on third-trimester abortions are part of a long-standing strategy by those seeking to criminalize abortion to target the most vulnerable women for restrictions.

After the Supreme Court decided Roe v. Wade in 1973, the anti-abortion movement quickly mobilized. When they were not able to achieve a federal constitutional amendment to ban abortion, they adopted the strategy of targeting the most vulnerable women—often with deadly consequences—to build a precedent upon which they could then broaden abortion restrictions to all women.

This incremental strategy has been very successful. First, anti-abortion advocates targeted poor women through the 1976 Hyde Amendment, which prohibited Medicaid funding for abortion. The first woman known to die because of the Hyde Amendment was Rosie Jiménez in October of 1977.

Next, they targeted young women with laws that required parental permission to obtain an abortion. Becky Bell died in 1988, the first woman known to die because of parental involvement laws.

Since 2000, the anti-abortion movement has targeted abortion in later pregnancy, and most recently, they have pushed for a wide range of abortion restrictions that increase the cost, decrease the availability and delay access to abortion health care. These laws put women’s lives and health at risk, especially poor women, young women and women of color.

Across the globe today, 68,000 women die annually of unsafe abortion associated with restrictive abortion laws. The dangers of abortion restrictions are driving many countries around the world to legalize abortion and lift restrictions. In Ireland, for example, abortion legalization was spurred by the case of Dr. Savita Halappanavar, who died in 2012 from septicemia—an infection she contracted after she was denied an abortion during a miscarriage.

Forcing women to continue nonviable pregnancies or pregnancies that endanger their lives and health is wrong and cruel. No other person in society is forced to sacrifice their life or health for another, even parents of children already born. And since the majority of women seeking abortions—59 percent—are already mothers, forcing a woman to continue with a dangerous pregnancy risks leaving an already-born child motherless.

Why is there so much concern before birth and so little after?

The unfortunate fact is that some women will require third-trimester abortions for medical and health crises that occur far along in their wanted pregnancies. It is also a fact that abortion restrictions have increased the need for later abortion across the country.

If opponents of legal abortion were truly interested in reducing the number of third-trimester abortions, they would repeal the many laws that create financial and logistical barriers to abortion that result in delays to abortion care, rather than demonize women who make heartbreaking decisions to end already-doomed pregnancies.

Before Roe, thousands of women died each year because abortion was illegal. Thousands more women experienced severe health consequences from abortion restrictions. With Trump’s appointment of Neil Gorsuch and Brett Kavanaugh to the Supreme Court, we may not have Roe v. Wade’s federal guarantee of legal abortion much longer.

New York’s law removing pre-Roe abortion restrictions that were still on the books is a critical measure to preserve women’s lives and health so never again will another woman die from abortion restrictions. Other states should follow suit.

This post originally appeared in the Daily Hampshire Gazette.


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.