Finally, the bottom line is the obstacles cause a lot of mental and physical harm, but do not block many abortions. (They must block some, and a few times we hear tell of people not able to obtain one, but the book is not inclined to estimate.) For instance, the lack of Medicaid coverage in many states puts pressure on private methods, but seems most people* find a way somehow.
The net result is gratuitous cruelty in the promotion (though this angle is not focused on much) of ideological goals. And, it is applied selectively, the poor and POC particularly burdened. Again, some unclear number of people are blocked from getting abortions while the increased burdens of those who still manage are often hidden as well.
The book is unapologetically pro-choice, which is fine. For instance, there is no abortion that are a bad idea unless the person doesn't want to obtain them. And, are there any problems in abortion care from the clinics' side? Surely, no one is perfect. But, this is not the book for that honest critique.
Obstacles:
[1] Making the Decision -- most people are clear on what they want and providers carefully screen patients. Barriers here include: gag rules, reason bans (gender etc.), misinformation ("abortion causes breast cancer"), minor consent/notification laws, crisis pregnancy clinics, and doctors themselves not wanting to refer patients or even hiding key information like how far along.
[2] Few Clinics / getting there
[3] Money (insurance/Medicaid limits) / resulting delays
[4] Clinic Protestors
(Not surprisingly, they do not come off well, though the "prayers" might be mostly harmless if something of a nuisance. I do wonder what the best usage of their time might be. Nasty yelling can't be too useful.
"Sidewalk counselors" are liable not to be too successful either. But, a low key approach would seem to be the best. For instance, say you are there if people want to talk. Offer, kindly, an alternative. And, even if you oppose their decisions, offer a praying hand -- after all, Jesus supports sinners.)
[5] Biased ("unborn child") or fraudulent "informed consent" including forced ultrasounds / better to use normal informed consent pattered to the patient's needs.
[6] Waiting periods
[7] Limits on procedure including limits on telemedicine, on types of procedure ("partial birth"), limits on medical abortions, doctor only requirements [physician assistants/nurses very good], unnecessary TRAP laws regarding clinics (admission privileges etc.), and skittish clinics/hospitals who don't do many more controversial procedures
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It is not the focus of the book, though some cases do come up, but the Supreme Court have dealt with these issues over the years. The original rule was that the second trimester could have rules intended to protect the women while (with a life/health exception) the state could ban post-viability abortions. The basic first trimester rule was that an abortion might only be allowed to be performed by a physician.
(Three liberal justices in the 1990s flagged one law that seemed to target a single physician assistant to make it harder to have an abortion.)
A mid-1970s case dealt with some more regulations. It turns out "may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy" does not mean NO regulations. The case, e.g., allowed in the first trimester record keeping and consent laws specific to abortion as long as they were reasonable.
Meanwhile, a 1980s case reminded that second trimester rules that departed from acceptable medical practice could easily be found unreasonable barriers to abortion. Recall too that the trimester scheme in Roe was tied to current medical knowledge. Viability is basically the same. OTOH, what was unsafe in the 1970s very well might be safe now. Perhaps, one basic pre-viability rule makes sense. How "clean" was the trimester scheme applied?
Casey held: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." This opened up more regulations, but not sure how much different it would be on the ground. Court personnel would be key. And, the Whole Woman's Health ruling (2016) said any burden had to have benefits. Some pointless law with minimum burden would still be bad.
Compare this to the dismissive way the Casey plurality said that clear burdens of waiting periods were not undue in that case. Other waiting periods (including 72 hours and in states with less clinics) very well might be different, but even beyond the basic principle of second guessing women, this sort of thing surely sounds undue:
The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to "the harassment and hostility of antiabortion protestors demonstrating outside a clinic." 744 F. Supp., at 1351. As a result, the District Court found that for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome." Id., at 1352.
As to informed consent, the plurality required it to be "truthful, nonmisleading information," but allows something like "probable gestational age" of the fetus, which might not be appropriate for a given patient. An early case, which it deemed too restrictive, more carefully limited such information requirements, including something like "the unborn child is a human life from the moment of conception."
This the earlier opinion said was an illegitimate insertion of "one theory of life" into the "informed consent' portion. Casey allows the state to do something like that though "the interest in potential life must be calculated to inform the woman's free choice, not hinder it." Note previous cases allowed the selective denial of Medicaid funds to promote said interest (one brief in the upcoming Mississippi case lists the various thing the state could do to protect life but does not). I find this to have First Amendment problems, along with the equal protection problems many flag.
The state is not only forcing ideological messages -- not mere professional speech requirements -- but it has religious sectarian overtones. The matter has not been addressed much by the Supreme Court and the selective application of the rules is seen by the crisis pregnancy case cited below. See also, Hobby Lobby where a minimum burden on beliefs in a public sphere was seen as problematic while pro-choice burdens are ignored.
Justice Stevens touched upon the possible Establishment Clause in his Webster opinion and multiple religious liberty amici in the upcoming Dobbs case covered the overall issue of religious freedom issues here. Casey itself spoke of the choice to have an abortion being a matter of "conscience." Ronald Dworkin, the now deceased liberal law professor, also argued along with euthanasia issues, religious liberty is a big issue here. A major Medicaid funding case avoided the question though the judge below addressed it in detail.
One other area of dispute that is relevant to the book is free speech cases. The Supreme Court upheld certain court determined injunctions that set up buffer zones or bubbles, but rejected unanimously when Massachusetts tried to set a buffer zone by law. I am sympathetic though it is easier to see the law as unnecessary there than in a red state.
Hill v. Colorado upheld a more limited law that makes it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person." [Cleaned up]
(The Roberts Court in the later case -- Roberts wrote the opinion though the other four conservatives at the time concurred separately -- cited Hill without suggesting it is no longer good law.)
Finally, there is the crisis clinics disclosure case that was a travesty. Of course, abortion law is one big to be continued.
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* The book was published in 2020 and notes early on the relatively new (from my vantage point) practice of reminding us that everyone that has an abortion do not represent as "women." But, given most are, the book tends to still use "women," though at times "persons."
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