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Fifty years after Roe and Title X, the right to reproductive freedom continues to come under fire.
Women’s reproductive freedom has advanced significantly over the past 100 years. Abortion rates have steadily declined in the United States over the last quarter century, falling to 14.6 abortions per 1,000 women aged 15 to 44 in 2014, the lowest rate ever recorded.1 As pointed out by the authors of this report, the overwhelming majority of abortions occur in the first trimester. Second-trimester abortions account for only a small fraction of all abortions in the United States; as of 2015, 7.6% of all abortions occurred between 14 and 20 weeks and only 1.4% occurred at 21 weeks or more. However, as abortion rates fall the obstacles to access for first-trimester and more critically second-trimester procedures have become increasingly burdensome.
Historical perspective on abortion
Before 1880, abortion was commonly practiced in the United States. Over the next half century, anti-abortion sentiments began to increase in response to the growing movements for women’s suffrage and birth control. Many states passed legislation that confined women to traditional childbearing roles and banned abortion except in extreme circumstances. These regulations forced women to seek illegal abortions from unregulated, often unskilled abortion providers or to use unsafe self-induced methods which often led to sepsis and, sometimes, death.
The Comstock Act of 1873, an “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” criminalized publication, distribution, and possession of information about devices or medications for “unlawful” abortion or contraception.2 Violators faced a fine and imprisonment. Although vestiges of the act remained into the 1990s, Congress removed most of the contraception-related language in 1971.
In the late 1960s, the Clergy Consultation Service on Abortion, a network of concerned pastors and rabbis, set up referral services to help women find safer procedures. Between 1967 and 1973, 14 states reformed their abortion statutes in favor of women seeking safer abortion care; four states repealed restrictive abortion laws.
Landmark Supreme Court cases
In the landmark Roe v Wade (1973), the U.S. Supreme Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.3 Following that decision, which established this “right to privacy” as related to abortion care, federal- and state-funded Medicaid programs covered abortion as part of comprehensive healthcare services for low-income women. The Roe Supreme Court decision (410 US 113) ruled on the constitutionality of laws that criminalized or restricted access to abortions. Before Roe legalized abortion, dedicated, well-trained physicians and other medical practitioners risked imprisonment, fines, and loss of their medical licenses to provide abortions. Then came the Hyde Amendment, passed by Congress in 1976 and renewed every year since, that bans use of federal funding for abortion care except in limited cases. Because so many women depend upon Medicaid for their health care, the Hyde Amendment effectively makes it much more difficult for women of lower socioeconomic status-disproportionately women of color- and adolescent girls who are also disproportionately represented in rates of unintended pregnancy and subsequent abortion to get abortion care. Today, several states have initiated legislation (heartbeat bills) that would again go as far as to criminalize performing an abortion, and the Hyde Amendment still lives.
Subsequently, Planned Parenthood v Casey 505 U.S. 833 (1992), was a landmark United States Supreme Court case regarding abortion. This was a first case in abortion history attempting to overturn Roe v Wade and came on the heels of the replacement of two liberal judges with two more conservative judges. The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982; among them were requirements for a waiting period, spousal notice, and (for minors) parental consent prior to undergoing an abortion procedure. In the opinion, the Court upheld the constitutional right to have an abortion that was established in Roe v Wade (1973), but altered the standard for analyzing restrictions on that right, crafting the “undue burden” standard for abortion which permits legislative restrictions to abortion access that do not impose an “undue burden” on women seeking care.
Paralleling the judicial expansion of reproductive rights, in 1970 Congress enacted Title X of the Public Health Service Act. The Title X program established the only federal grant dedicated to providing individuals with comprehensive family planning and related preventive health services, including access to contraceptive services, supplies, and information, with priority given to low-income women. There was bipartisan consensus in the 1960s and early 1970s that access to family planning was a universal human right; the Senate passed the Act with a unanimous vote and only 32 members of the House dissented. For nearly 50 years Title X family planning clinics have played a critical role in ensuring access to a broad range of family planning and related preventive health services for millions of low-income and uninsured individuals.
Title X programs are jeopardized by recent legislative efforts such as the Title X “Gag Rule.” The proposed final rule would force a medical provider receiving federal assistance to refuse to promote, refer for, perform or support abortion as a method of family planning. This has led many family planning programs, such as Planned Parenthood, to drop out of participation in Title X rather than attempting to comply with these restrictive regulations. Those who are most vulnerable to the “Gag Rule” are minority women, lower socioeconomic status women, and adolescent girls who are disproportionately impacted by unintended pregnancy rates and subsequent abortion rates, and many rural and urban community health centers, particularly those serving poor women on Medicaid, are left with fewer options for family planning services. The result could be reversal of the 30-year drop in adolescent pregnancy rates and the lower rates of abortion that we have seen over the last quarter century.
Access to affordable and available contraception is the premise of the foundation for Title X and one of the guaranteed preventive women’s health services described under the Affordable Care Act. In 2018, ACOG along with at least 10 other health care organizations provided testimony opposing elimination of the contraceptive mandate proposed for Health and Human Services. Worldwide almost 25% of maternal deaths are due to an unmet need for contraception.
Current legal restrictions
More than a century since the Comstock Act, women’s access to reproductive health care including abortion and contraception is threatened through legislative backlash against reproductive choice, and abortion access is more vulnerable than ever due to legislative attempts at the state and national levels to disenfranchise women and marginalize rights to legal reproductive choices. States have enacted a growing number of abortion restrictions that the courts have found not to be “undue burdens,” including mandatory waiting periods, physician scripting, parental involvement, and specific facility requirements for abortion clinics. Since Roe v Wade, 1200 restrictions have been enacted; recently the pace of abortion restrictions has accelerated, and the nature of the restrictions more severely curtails access. An increasing number of states have passed extremely restrictive abortion laws intending to test the protections of Roe v Wade in the Supreme Court.