Public Health Policy
9/19/2022

Complex and Controversial: An Overview of American Abortion Policy

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Few issues in political and social discourse are as polarizing as that of abortion. Abortion policy has been shaped by influential Supreme Court decisions like Roe v. Wade, Planned Parenthood v. Casey, and most recently, Dobbs v. Jackson, each of which has presented unique viewpoints on the constitutionality of abortion in the United States. Abortion policy has a major influence on public health, especially maternal and neonatal health. Often intertwined with public health arguments are moral and philosophical arguments about abortion, which further contribute to its controversial nature. In this brief, we will examine the evolution of abortion policy in the United States and the debates surrounding it in the present day with a special emphasis on public health.

Introduction

Overview

Abortion, otherwise known as the termination of a pregnancy, is an issue that has broad political, social, and public health implications. It is perhaps one of the most contentious and controversial issues in American political discourse. Abortions can be carried out via medical pills or surgical procedures. Women comprise the vast majority of people who seek abortions, so for the sake of conciseness, the term “woman” will be used to broadly encompass all those who can become pregnant.

There exists a rich history of abortion policy in the United States. While church officials frowned on abortion in the early days of the republic, there were no actual laws regulating the procedure. Starting from the time of the Civil War, a coalition of male doctors and followers of the Catholic Church started the movement against abortion, and by 1910, abortion was banned nationwide. Criminalization of abortion incentivized women to seek illegal abortions, which were the cause of death for about 1 in 5 (18%) of all maternal deaths in 1930. In 1967, some states began rolling back abortion restrictions, and by 1973, Alaska, Hawaii, New York, and Washington had repealed their statewide abortion bans.

In 1973, the Supreme Court handed down the landmark Roe v. Wade decision. The U.S. Supreme Court ruled that the Due Process Clause of the 14th Amendment protects the right of individuals to receive an abortion and that the constitutional right to privacy encompasses abortion services. Roe v. Wade expanded abortion rights nationwide, securing it as a constitutional right.

However, Roe did not mark the end of the anti-abortion movement. Throughout the years, state and federal restrictions on abortion continued, as well as court challenges to Roe. Notably, the Supreme Court reaffirmed the Roe decision in  Planned Parenthood v. Casey (1992), but established a constitutional challenge test in which a law must be shown to have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion in order to be deemed unconstitutional.

In 2022, following an unprecedented draft leak, the Supreme Court ruled in the landmark Dobbs v. Jackson decision that the Constitution does not guarantee the right to an abortion, effectively overruling Roe and Casey. This ruling returned the question of the legality of abortion to individual states. Prior to the Dobbs ruling, many states had enacted trigger laws that would go into effect in the case that Roe was overturned. The true large-scale impact of the Dobbs decision will be revealed in following months, but it is reasonable to expect a dramatic reduction in abortion rights, particularly in more conservative states.

Pointed Summary
  • Abortion is a contentious political, social, and public health issue. Pro-choice advocates support abortion rights, whereas pro-life advocates oppose abortion rights.
  • There are various health risks associated with abortion, but legal abortion remains safe in the United States.
  • Women may suffer economically and medically when denied an abortion, but abortions are also linked to other negative health results, especially mental health outcomes.
  • A variety of arguments exist on both the pro-life and pro-choice sides, but the overarching theme relies on different perspectives on the value of the fetus versus the bodily autonomy of the mother.
  • There has been a long history of legislation passed to restrict or expand abortion rights, which are divided quite cleanly along political lines.
  • Monumental Supreme Court cases like Roe v. Wade, Planned Parenthood v. Casey, and most recently, Dobbs v. Jackson, have created national fluctuations in abortion rights and policy. 
  • The recent Dobbs v. Jackson ruling that overturned Roe v. Wade has stirred up major national debate regarding the morality and legality of abortion.
Relevance

Abortion comes with its share of health risks, although continuous research and honing of abortion techniques has made the process much safer throughout the decades. Like many major medical procedures, abortions come with side effects like bleeding, cramping, dizziness, and nausea, but they tend to resolve within a week.

Abortions can also lead to complications that could become serious health issues like damage to the cervix, excessive bleeding, uterine infection, uterine scarring, sepsis, uterine perforation, or in severe cases, death. Aside from immediate complications, abortions have also been linked to a variety of future health risks like preterm deliveries. Studies indicate that one induced abortion increases the risk of a subsequent premature birth by between 25% and 27%.

After two or more abortions, a woman’s risk of preterm birth increases by between 51% and 62%. Infants who survive preterm deliveries also have serious health risks, including an increased risk of serious disabilities like cerebral palsy, intellectual impairment, and psychological developmental disorders. Additionally, abortions have been linked to an increased risk for breast cancer, STDs, pelvic inflammation, mental health problems, infertility, and increased risks in future childbearing.

On the other hand, pregnant women have also reported benefits from choosing an abortion. For the most part, abortion remains a relatively safe choice for women. In the US, the mortality rate associated with legal abortion is about 0.7 deaths for every 100,000 procedures, which is a lower mortality rate than that of childbirth, plastic surgery, colonoscopy, and tonsillectomy, among other medical procedures. Additionally, women may suffer serious health effects from taking an unwanted pregnancy to term, such as an increased risk of gestational high blood pressure, joint pain, and headaches or migraines.

Economically, women denied abortions are more likely to fall into poverty and end up in a single-parent household. At the population level, a nationwide abortion ban would result in a 21% increase in pregnancy-related deaths overall and a 33% increase among Black women, according to a CU Boulder study. Additionally, women of color, poor women, and women with pre-existing health conditions are more likely to seek abortions, resulting in a disproportionately negative impact on these vulnerable populations.

In general, abortion advocates would argue that abortions are the safer option for women compared to childbirth. On the economic front, states that oppose safe and legal abortions also tend to spend far less money per child on a range of services like foster care, education, welfare, and the adoption of children with physical and mental disabilities, which many point to as an example of hypocrisy in the practical manifestation of anti-abortion policy.

Policy Questions

History

Current Stances

The two sides of the abortion argument gave rise to the pro-life and pro-choice movements. The former seeks to limit or ban abortions; the latter seeks to make abortions more accessible. The root cause of the clash between these two ideologies lies in prioritizing the value of the fetus versus the bodily autonomy of the mother.

Many pro-life advocates ascribe to the fetus’s status argument, which states that abortion is wrong and should be prohibited, restricted, or avoided when possible because the fetus has certain properties and interests that confer on it the same or equal moral status to that of a person. Additionally, the paternalistic argument states that abortion is wrong and should be prohibited, restricted, or avoided when possible because, by impeding the realization of motherhood, it harms women's psychological health or their well-being. Religious people, especially Christians, are more likely to be opposed to abortion.

On the other hand, pro-choice advocates argue that women should be able to choose when to bear and rear a child. The pro-choice movement is strongly intertwined with the feminist movement, as many pro-choice advocates also proclaim that the right to an abortion is vital to achieve true gender equality since abortions disproportionately affect women. Other arguments include that the fetus is considered part of the woman’s body, so she ought to have the right to decide its fate, and that the right to an abortion should be part of a portfolio of pregnancy rights given to women.

The issue of abortion is also split quite cleanly along political lines: conservatives are more likely to support banning abortion, while liberals are more likely to support abortion rights. Most Americans hold a nuanced view of abortion, supporting neither a complete ban nor zero restrictions. 

Tried Policy

Beginning in the 1960s, states began loosening their restrictions on abortion in response to a renewed women’s liberation movement that had slowly but steadily granted women more autonomy in their private affairs, including the increased accessibility of birth control. As some states loosened their restrictions on abortion, the ones that didn’t were the subject of intense controversy and debate as the women’s liberation movement gained more traction.

Calls for a constitutional amendment ensuring gender equality became increasingly popular. Eventually, in 1973, the Supreme Court decided to hear the case Roe v. Wade, which dealt with the constitutionality of a Texas statute prohibiting abortion at all stages of pregnancy.

The split court, in a 5-4 decision, recognized abortion as a constitutional right under the Equal Protection Clause of the Fourteenth Amendment, arguing that the Constitution granted women a constitutional right to privacy, which included obtaining an abortion. This ruling was largely upheld in the 1992 Supreme Court case Planned Parenthood v. Casey, which dealt with a Pennsylvania statute requiring spousal awareness before obtaining an abortion. The Court upheld the right to an abortion but also stated that some restrictions, such as a 24-hour waiting period and parental consent, were constitutional.

The Supreme Court would not hear another landmark case regarding abortion until 2021, when it heard Dobbs v. Jackson Women’s Health Organization, which addressed the constitutionality of a Mississippi statute prohibiting abortion at 15 weeks. In a 6-3 decision, the Supreme Court ruled that the Constitution conferred no right to abortion within its provisions, thus overruling Roe and Casey. Now, the decision to regulate abortion has returned to voters and elected officials. Currently, 17 states have implemented total bans on abortions, mostly in the South and Midwest, while several more states are likely to impose bans.

The bans of some states, such as Louisiana and Kentucky, have been temporarily struck down by judges. Other states, like California and Illinois, will continue to protect abortion access. As a response to statewide abortion bans, the House of Representatives recently passed a bill codifying Roe v. Wade into federal statute, although this bill is not likely to overcome a filibuster in the Senate. The Hyde Amendment, adopted in 1976, also prohibits the use of federal funds to pay for abortion. 

Policy Problem

Stakeholders

In terms of reproductive healthcare policy, women are the primary stakeholders, as statewide abortion legislation directly impacts their ability to seek out an abortion procedure if they so desire. Moreover, differing abortion policies across states have the most impact on women of color living in rural areas who do not necessarily have the financial means to travel out of state to obtain an abortion if state law prohibits the procedure.

However, judges have temporarily blocked abortion bans in some states such as Louisiana, and the Biden administration has taken executive action to protect abortion and reproductive healthcare access. Many local and nationwide women’s health clinics, including Planned Parenthood clinics, are also at risk of permanently ceasing their operations if abortion becomes illegal in the states they operate in, although legal battles continue to develop.

Given the highly personal element of abortion, women will not be the only ones impacted by abortion bans. Their families will also be affected, as will community and religious leaders who provide moral and spiritual guidance. These leaders speak for the values of the communities women live in; some communities are pro-choice, while others are pro-life.

Additionally, fetuses are stakeholders in changes to abortion policies as well; when exactly a fetus achieves the status of personhood, and what traits a fetus must possess in order to be considered a person, is a matter that has been fiercely debated for decades. Different viewpoints, including the religious belief that life begins at conception, has shaped abortion policy in a number of states.

Nonpartisan Reasoning

Roe v. Wade, and subsequent Supreme Court cases that have reaffirmed it, including Planned Parenthood v. Casey, have relied on the argument that the Fourteenth Amendment of the United States Constitution guarantees citizens a right to privacy, which includes the right for a woman to obtain an abortion. Opponents of Roe argue that such a right does not exist since the rights to privacy and abortion are never explicitly addressed in a constitutional provision; therefore, the issue of abortion should be decided by the states.

While these are the main legal arguments in favor and in opposition to Roe v. Wade, there are also several moral arguments in favor of and against abortion itself. Those who oppose abortion often argue that life begins at conception (a religious principle), or that fetuses have certain qualities and properties that grant it the same moral status as a person, such as brain activity and possessing a human genotype.

However, those in favor of abortion argue that fetuses do not achieve the status of personhood because they are unable to demonstrate their interest in continuing their life. Most pro-choice advocates often make a libertarian argument in favor of their position, arguing that bodily autonomy is a fundamental right and that governments should not have a say in both the personal healthcare decisions women make and what people decide to do or not do with their own bodies. 

Policy Options

Now that Roe v. Wade has been overturned by the Supreme Court, abortion policies differ from state to state. However, the House of Representatives has passed two bills that not only codify abortion rights into law but also restrict states from regulating interstate travel with the intent of receiving an abortion. The bills are yet to be passed by the Senate, and the chances of them passing are low since the possibility of a filibuster is quite high. President Biden has also issued an executive order protecting interstate travel abilities and requiring health providers to provide abortion services in the event of an emergency.

As of July 22, 2022, states that have bans in effect, including full and six-week gestational bans, include: Texas, South Dakota, Oklahoma, Wisconsin, Missouri, Arkansas, Alabama, Mississippi, Tennessee, Georgia, South Carolina, and Ohio. Some states, including Utah, Arizona, Kentucky, Louisiana, and West Virginia, have had their abortion bans blocked by judges. Idaho, Wyoming, and North Dakota are expected to impose abortion bans. Utah, Kentucky, and Florida currently have gestational bans in place, but not total bans on abortion.

Several more states, including Montana, Nebraska, Iowa, Michigan, Indiana, Pennsylvania, Virginia, and North Carolina are yet to impose any abortion bans and will let courts, voters, and lawmakers decide the issue. In August 2022, Kansas voters rejected a ballot measure which would amend their state constitution by removing abortion rights.

Abortion is likely to remain legal in California, Oregon, Washington, Nevada, Alaska, Hawaii, New Mexico, Colorado, Minnesota, Illinois, Maryland, New Jersey, New York, Massachusetts, Rhode Island, Connecticut, Delaware, New Hampshire, Vermont, Maine, and the District of Columbia. In fact, Washington, Oregon, and California have all pledged to be safe havens for those seeking abortion services.

Conclusion

Abortion policy has been shaped by centuries of legislation, monumental Supreme Court cases, and civil rights movements. Through the lens of public health, abortion has both benefits and drawbacks for women. While abortion inherently carries both risks and benefits for health and safety, it also has many moral and ethical debates surrounding it. With the overturning of Roe v. Wade by Dobbs v. Jackson, the divisiveness surrounding abortion in the United States is likely to be further exacerbated.

Acknowledgment

The Institute for Youth in Policy wishes to acknowledge Lucas Yang, Elizabeth Miller, Marielle DeVos, Luke Drago, and other contributors for developing and maintaining the Policy Department within the Institute.

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