What The Language In Abortion Laws Really Means
The ways state governments restrict women's abortion rights — without actually coming out and saying it. Written by a lady who's had one.
On Tuesday, Texas Democratic State Senator Wendy Davis embarked on a 13-hour filibuster to try to stop legislation that would effectively ban abortion in the Lone Star State. The new legislation would criminalize abortions in the 20th week of pregnancy, force abortion providers to have hospital-admitting privileges, and would effectively reduce the amount of abortion clinics in the state from 42 to 5.
While it is unconstitutional to ban abortions outright, states like Texas, Wisconsin, Virginia, and a dozen others have been chipping away at women's right to choose by keeping abortion technically legal but increasingly difficult to obtain. Here's how they do it.
1. Mandated Psychological Counseling
"Why are you terminating this pregnancy?"
This was the question posed to me during a mandatory counseling session I had to endure before I was able to get an abortion. I panicked. What was the right answer?
I wanted to say, "Because I want to." But I was afraid I would be denied the procedure. I lied and said I was broke and couldn't raise a child. This seem to satisfy the Planned Parenthood worker.
Thirty-five states do not allow a woman to undergo an abortion unless she has been "counseled." The substance of these "counseling sessions" runs the gamut from informing the woman about the purported link between abortion and breast cancer (five states), the ability of a fetus to feel pain (twelve states), long-term mental health consequences of abortion (eight states), or that personhood begins at conception (five states). In several states, a counseling session must be done in person, at the facility, 24 hours before the procedure, meaning at least two trips the facility must be made.
A three-year study of over 300 women, conducted by the Texas Policy Evaluation Project, found the 24-hour waiting period had a negative emotional impact on 31% of women surveyed. Nearly half of the women reported additional costs caused by the waiting period — $141 on average — for extra transportation, child care, and other services not related to the abortion.
2. Cooling-Off Period
Twenty-six states require women seeking an abortion to wait, usually 24 hours, before they are allowed to undergo the procedure. If you live in Utah, you must wait 72 hours between the first counseling session and the procedure. Consider what this type of restriction means for those living in rural areas of states like Utah, where the nearest clinic can be up to 200 miles away and/or for women who are low-income or rely on public transit — a hardship, to say the least, and often an impossibility. These restrictions meet the definition of the Supreme Court's of undue burden, which means, as Sandra Day O'Conor explained, places "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." And yet, these restrictions are still in effect.
On the opposite end of the spectrum, if you live in California, you can undergo the procedure the same day as entering the clinic with no counseling session or mandatory wait time.
3. Medically Unnecessary Ultrasounds
There is no medical reason for a woman to undergo an ultrasound for a first-trimester abortion, yet nine states require it. States began to impose this procedure in the 1990s in what the Guttmacher Institute calls "a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion."
Five of those nine states require the ultrasound provider to ask the woman if she would like to see the ultrasound. Wisconsin's new lawrequires the ultrasound tech offer the woman a description of the fetus and a "visualization" of the heartbeat.
I underwent a medically unnecessary first-trimester ultrasound before my abortion. I asked the technician if I could see the image when it came on screen. She looked surprised but showed me. I asked because I wanted to know all the details of what was happening to my body. All the image did was heighten my fear and anxiety.
I tried to understand what the ultrasound image meant. I did not have an answer, which caused me to panic further. I was put back in the waiting room for another two hours (I still had to do my mandatory counseling session). I considered leaving and rescheduling my procedure at least 10 times during that agonizing wait because I thought I could be braver another day.
4. Heartbeat Law and the High Cost of Transvaginal Ultrasound Probe
Once a fetal heartbeat is detected, which can be as early as six weeks, a woman loses her right to an abortion in North Dakota — the only state to do so. How is a fetal heartbeat best detected in this super-early stage of pregnancy? Through a transvaginal ultrasound probe. That means a plastic rod inserted into the vagina for no medical reason. Since this is a separate and medically unnecessary procedure, many insurance carriers do not cover it, meaning a woman has to pay out-of-pocket for a transvaginal probe.
North Dakota requires a woman to receive a transvagainal probe before she can undergo an abortion. The cheapest probe option in Grand Forks, North Dakota? $440.
5. TRAP Laws
TRAP stands for Targeted Regulation of Abortion Providers. Six states have made it illegal for abortion clinics to operate unless the physician has admitting privileges at a nearby hospital. In rural areas of Virginia and Wisconsin, two states that have recently passed TRAP laws, there is no local hospital.
But what if an abortion provider is willing to travel out of the rural areas in order to get access privileges to closest hospital? In Wisconsin that doctor cannot travel more than 30 miles. Dozens of rural clinics face closure now because of new TRAP laws. The House-approved Texas measure also includes a 30-mile rule.
Proponents of TRAP laws say these measures help ensure the safety of women by forcing their doctors to get admitting privileges. The overwhelming majority of abortions are outpatient procedures that are less invasive than some dental work, colonoscopies, vasectomies, plastic surgeries, and cardiac operations, yet only abortion providers are singled out for these new restrictive measures.
6. Parental Consent
Twenty-one states require underage girls to get one or both of her parents to consent to an abortion. Five states will not allow a minor to undergo an abortion if she does not also provide a notarized document of her parent's consent.
What if a 15-year-old girl wants to get an abortion but her parents won't sign off?
If she lives in one of these 13 states, she can go in front of a judge who will determine if there is "clear and convincing evidence" that she is mature enough for the procedure and the abortion is in her best interest.
If the girl lives in one of these five states and her parents will not give her permission to have an abortion, a judge can rule on specific criteria — such as as emotional stability and intelligence — about the girl before she is allowed to undergo an abortion.
two years later when the Supreme Court upheld a Massachusetts law that required parental notification OR a judicial bypass in order for a teenage girl to receive an abortion. The court reasoned that because a judge's order could override parental refusal — allowing a girl to undergo an abortion against her parents wishes — it was no longer unconstitutional.