Ironically, as the international community has generally moved toward greater respect for women’s equality and self-determination through increased recognition of reproductive rights, the United States has swung on a counterpendulum. Since Roe was decided in 1973, the anti-choice movement in the United States has engaged in a coordinated and well-financed campaign to chip away at the right to individual autonomy and privacy recognized by that landmark Supreme Court decision.⁵⁹ The concerted efforts of that movement would eventually obtain disproportionate power and influence, ultimately effusing all three branches of federal government⁶⁰ as described in the next section. Using a "divide-and-conquer" tactic aimed at the easiest targets, anti-choice policy makers have focused their efforts on the most vulnerable and disenfranchised populations— such as low-income women, young women, and impoverished women living in other countries.

This section provides a brief synopsis of the history of increasing federal and state restrictions on access to abortion by women within the United States, and the accompanying judicial backsliding in constitutional protections that have occurred since Roe. It also demonstrates how anti-choice forces within the United States have expanded their assault on reproductive rights to target women in other countries. This review will provide the historical context through which to view the current onslaught against women’s reproductive rights addressed in the next section.

A. Backsliding of Abortion Rights Within the U.S.

One unfortunate and largely unanticipated outcome of Roe v. Wade was the galvanization of far-right elements within the United States who oppose women’s right to individual autonomy and privacy and support government control of women’s reproductive capacity.⁶¹

Soon after the Roe victory in the U.S. Supreme Court, conservative forces began to chip away at women’s reproductive rights both in the federal and state governments and in the courts. Their anti-choice strategy has been multifaceted, including attempts to carve out exceptions to Roe, marginalize certain groups of women, and impose barriers to exercising reproductive privacy rights. The right wing has specifically targeted low-income women and young women. Additionally, although initially rebuffed by the U.S. Supreme Court, the anti-choice conservatives have become increasingly successful in their efforts to impose generally applicable restrictions on women’s access to abortion in the United States.

1. Restrictions on Access to Abortion by Low-Income Women

One early strategy to restrict abortions targeted low-income women by cutting off their funding for abortion services.⁶² Just three years after Roe was decided, Representative Henry Hyde initiated restrictions, passed by Congress in 1976 and renewed regularly ever since, that eliminated Medicaid funding for abortions except in limited cases, such as rape, incest, or when a woman’s life was endangered by her pregnancy.⁶³ These restrictions have become known as the "Hyde Amendment."⁶⁴ Congress has also repeatedly prohibited funding for abortion services for other specific groups of women. These policies obviously have more of an impact on low-income women within these categories than they do on women with greater resources. For example, each year Congress includes a specific provision in the treasury postal appropriations bill prohibiting coverage of abortion services under the Federal Employees Health Benefits Program. The contraceptive coverage provision of the program explicitly states: "Nothing in this section shall be construed to require coverage of abortion or abortion- related services."⁶⁵ Additionally, Congress has, either through the appropriations process or through statutory provisions, banned funding for abortions for women in federal prisons, low-income women in the District of Columbia, women serving in the Peace Corps, Native American women, and teenagers participating in the State Child Health Insurance Plan.⁶⁶

The U.S. Supreme Court has consistently upheld restrictions on funding for abortions. In the Supreme Court’s 1977 decision in Maher v. Roe, the majority held that the principles expounded upon in Roe did not require states to provide funding for abortions that are not medically necessary under their Medicaid program, even if the state provides public funding for childbirth services.⁶⁷ The Court held:

An indigent woman who desires an abortion suffers no disadvantage as a consequence of [the] decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. . . . The indigency that may make it difficult—and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the . . . regulation . . . . [Therefore, the] regulation does not impinge upon the fundamental right recognized in Roe.68

The Court dismissed this distinction, finding the right to choose did not include a right to access abortions, even if the woman’s health was at risk. The Court held that the state is not required to remove obstacles to obtaining an abortion: "[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."⁷¹

This infringement on the principles originally recognized in Roe became even clearer in two additional Supreme Court cases limiting access to public facilities for abortions. In Webster v. Reproductive Health Services, the Court ruled that "the State need not commit any resources to facilitating abortions," and upheld a law restricting the use of public employees and facilities for abortions.⁷² In Poelker v. Doe, the Court held that an indigent woman had no right to obtain a nontherapeutic abortion at a publicly funded hospital.⁷³

The federal government has promoted other post-Roe initiatives to limit access to abortion services by low-income women, including proposals to block funds to family planning organizations that engage in abortion-related activity with nongovernment funding sources. For example, in 1988, a restriction to the Title X program⁷⁴ was proposed, known as the domestic "gag rule,"⁷⁵ which prohibited recipients from providing full counseling on pregnancy options, thereby restricting discussion of abortion and dissemination of information about abortion. The domestic gag rule was upheld by the Supreme Court in Rust v. Sullivan,⁷⁶ but was revoked by the Clinton administration in 2000.⁷⁷

Anti-choice lawmakers have also imposed a ban on abortion for women serving in the U.S. military and for military dependents. Congress first enacted this ban in 1978 through a provision in the fiscal year ("FY") 1979 Department of Defense ("DoD") appropriations bill prohibiting DoD funding of abortions except in cases of life endangerment, rape, incest, or severe health consequences.⁷⁸ In 1988, the DoD issued a memorandum that extended the ban to include abortions paid for with a patient’s own money.⁷⁹ President Clinton lifted the restriction on privately funded abortions by executive order in 1993;⁸⁰ however in 1996, anti-choice forces in Congress maneuvered to place the ban on privately funded abortions in the U.S. code,⁸¹ which still remains despite repeated attempts to remove it.

Again, the harshest effects of this ban fall upon women in the lower ranks, who are less able to afford to travel off their base (perhaps to another country or back to the United States) to obtain an abortion, and who must also seek permission from a superior officer to be allowed to do so.

2. Limitations on Access to Abortion by Adolescents

Soon after Roe was decided, state legislatures began enacting laws that treated adolescents differently than adult women, affording young women diminished reproductive rights.⁸² Many of these laws required the consent of one or both parents for a minor to obtain an abortion ("parental consent laws"), thereby intruding upon the young woman’s privacy right by vesting near total control in her parents over the decision as to whether she would be allowed to terminate her pregnancy.⁸³ In 1979, only six years after Roe, the U.S. Supreme Court considered a Massachusetts law requiring the consent of both parents for a minor to obtain an abortion, and upheld the basic principle that states could enact limitations on a minor’s right to choose.⁸⁴ The Court in Bellotti v. Baird stated: "We are not persuaded that, as a general rule, the requirement of obtaining both parents’ consent unconstitutionally burdens a minor’s right to seek an abortion." ⁸⁵ The Supreme Court’s endorsement of parental involvement laws has been reaffirmed in numerous other cases,⁸⁶ and states continue to introduce bills restricting minors’ right of access to abortion. The Bellotti decision and its progeny thus reinforced the anti-choice strategy of dividing women into different classes and created broad exceptions to the constitutional right of reproductive choice.

3. Generally Applicable Restrictions on Abortion

Opponents of Roe sought to chip away at the Supreme Court’s decision in other ways as well, passing legislation that created further obstacles to women’s ability to exercise their right to choose. For example, anti-choice state legislatures enacted laws requiring women to wait requisite amounts of time before obtaining abortions ("waiting periods"), thereby interfering with women’s access to abortion and potentially increasing the health risks of abortion. State legislatures also mandated that women receive certain information or counseling— mostly geared toward promoting childbirth over abortion and often containing medically inaccurate information—prior to the procedure. Some legislatures went as far as enacting spousal consent requirements (which had the effect of imposing a husband’s will on his wife’s body) and unnecessary regulations of the abortion procedure (such as requiring that abortions be performed in hospitals, despite the strong safety records of clinics; or that two physicians be involved in the abortion decision, even though one doctor’s participation is sufficient).87

In the decade following Roe, while the Supreme Court endorsed the weakening of constitutional protections for such politically disenfranchised groups as low-income women and minors, the Court initially invalidated many of these other barriers to abortion access. For example, in the 1973 case Doe v. Bolton, the Court struck down requirements that abortions be performed in hospitals, that hospital committee approval be obtained prior to an abortion procedure, and that two additional physicians participate in the abortion decision.⁸⁸

In 1976, the Court invalidated a spousal consent requirement and struck down a ban on the saline amniocentesis method of abortion in Planned Parenthood v. Danforth.89 In 1983, the Court struck down a law requiring, among other things, a 24-hour waiting period and biased counseling, fetal disposal in a "humane and sanitary" manner, and the performance of second trimester abortions in hospitals.⁹⁰ Three years later, in Thornburgh v. American College of Obstetricians & Gynecologists, the Court invalidated a Pennsylvania statute with requirements that included onerous "informed" consent procedures, reporting to the state by providers regarding abortions performed, and involvement of a second physician in certain abortions.⁹¹ Thus, in the thir-teen years following Roe, the Court repeatedly struck down many state-imposed obstacles to reproductive health.⁹² With the advent of a changing Court composition and the increased stridency of antichoice rhetoric, however, the Court’s intolerance of these abortion barriers began to diminish in the late 1980s and 1990s.⁹³

4. Further Weakening of Roe

During the 1990s, opponents of reproductive choice successfully employed yet another strategy to undermine Roe—challenging the level of constitutional scrutiny and protection applied to laws infringing on reproductive autonomy. In Planned Parenthood v. Casey,⁹⁴ the Court—while claiming to reaffirm Roe’s constitutional protection of women’s right to abortion—replaced Roe’s trimester framework by explicitly extending the state’s interests in protecting potential life and maternal health to apply throughout pregnancy.⁹⁵ The Court also abandoned the strict judicial scrutiny standard established in Roe and replaced it with a weaker, ill-defined "undue burden" standard.⁹⁶

Under this new standard, regulations that would have been held unconstitutional under Roe were now considered valid unless they had the "purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."⁹⁷ Applying this new standard, the Court in Casey upheld restrictions that it had previ-ously ruled invalid in other cases,⁹⁸ such as a requirement that doctors must deliver biased information to patients and a mandatory 24-hour waiting period for abortions.⁹⁹ The new standard weakened the Court’s previously established protections and provided greater opportunity for anti-choice policy makers to continue chipping away at abortion rights. Legislatures were thus given the liberty to enact laws favoring childbirth, promoting "fetal life," burdening access to abortion, and restricting abortion based on "morality" (often a code word for anti-abortion religious views), as long as the vaguely defined line of "undue burden" was not crossed. As a result of Casey, many women now cannot exercise their reproductive rights without encountering substantial encumbrances.¹⁰⁰

Another anti-choice tactic has been to enact broad bans on abortion methods through so-called "partial-birth abortion" legislation. Legislatures thirty-one states have have enacted such laws.¹⁰¹ These laws purportedly ban abortions only late in pregnancy and ostensibly target only one specific abortion method. In reality, however, these laws limit ban safe and effective abortion methods used as early as twelve to fifteen weeks in the preganancy.¹⁰² The Supreme Court considered Nebraska’s "partial-birth abortion" law in Stenberg v. Carhart,¹⁰³ a case brought by the Center for Reproductive Rights in 2000. The Court struck down the ban in a 5–4 decision, finding it an unconstitutional violation of Roe and Casey by failing to include an exception to preserve the health of the woman.¹⁰⁴ It also found the statute unconstitutional because it imposed an undue burden on a woman’s ability to choose an abortion by banning the safest and most common abortion procedures performed before viability in the second trimester. ¹⁰⁵ Although the decision in Carhart preserved a core right to reproductive autonomy, it affirmed the Casey standard affording fewer constitutional protections to reproductive privacy, thereby further solidifying the substantial step away from Roe’s original principles. In addition, the 5–4 decision was an ominous sign for Roe’s future. The fragile majority decision indicates the new balance of the Court, which is only one vote away from overturning Roe.

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