In 1992, in Planned Parenthood v. Casey, the United States Supreme Court reaffirmed its decision in Roe v. Wade holding that a woman has a constitutional right, grounded in the right to privacy, to decide whether to carry a pregnancy to term. That right, of course, is not — and never has been — absolute or unlimited.
States may restrict that right (often in the name of protecting the woman's health) as long as the regulation does not impose an "undue burden" on a woman's choice. Past a certain point in pregnancy, abortion is prohibited unless necessary to preserve the life and health of the mother.
In the past 20 years, the "fight" mostly has revolved around two areas: the legal limits that may be imposed and the practical limits, meaning the lack of access. For all of the high-minded rhetoric, it is a very cruel debate because it takes place on the backs of the poorest and most vulnerable women in our society.
Restrictive abortion laws — and the Texas law held unconstitutional this week is example A of this — do not restrict the rights of middle-class women in big cities. The way the "undue burden" standard has played out, those who oppose abortion pass laws that put obstacles in the path of women who are the most vulnerable. Thus, the Texas law, for example, would have barred doctors from performing abortions unless they have admitting privileges at hospitals within 30 miles of the clinic.
As the judge found, there is no medical reason that the doctor performing an abortion must have admitting rights within 30 miles. Put aside the fact that abortions performed prior to 20 weeks (which is the limit imposed by law) rarely result in emergency room visits. Even if they did, there is absolutely no evidence that the doctor must have admitting privileges in order for the woman to be treated in an emergency room. Women who go to emergency rooms are treated by emergency room doctors, without regard to where the clinic doctor has privileges.
No, the reason for the limit had nothing to do with protecting women's health and everything to do with making it more difficult and more expensive for poor and rural women to exercise their constitutional rights.
In much of this country, outside of the big cities, it is nearly impossible to find doctors who will perform abortions. You shouldn't have to be a hero to be a gynecologist — and certainly not a local hero — but that is how it works. In some areas, doctors come in once or twice a week (sometimes from a distant city or even from out of state) to volunteer at a local clinic. If they can't do that, then women can't get abortions.
So, too, for the law's limits on administering the medicine that induces abortion. When the medical protocols were first established, women were required to come to the clinic to receive two doses of the medicine. Later, many doctors found that a single visit was all that was medically necessary.
Understand, every time a woman must go to a clinic, she must find a way to get there, find someone to care for her children, lose a day of work. It's no problem if you are a wealthy urban woman. It's a potentially insurmountable obstacle if you aren't.
So what did Texas do? They passed a law that would require a woman to personally come to the clinic not once, not twice, but three times. Why? Because it would reduce the number of abortions by making them more difficult and more expensive.
The judge upheld these restrictions, finding that they are a burden but not unconstitutional, although he went on to say that an individual doctor should be allowed to use his or her judgment as to what is medically appropriate, a result that left many concerned that doctors still could face discipline if they practice medicine the same way doctors do in states where the governor is not determined to block access to abortion.
What would happen if middle-class women in Dallas and Houston and Austin were suddenly denied access to abortions? What would happen if young women on college campuses in Texas could no longer get safe abortions? Texas Gov. Rick Perry would have a revolution on his hands. The reason he doesn't is because it is the poor and the vulnerable who are the pawns in this fight. And that is so wrong.
Susan Estrich is a best-selling author whose writings have appeared in newspapers such as The New York Times, Los Angeles Times, and Washington Post, and she has been a commentator on countless TV news programs. Read more reports from Susan Estrich — Click Here Now.