A New Political Era in Determining Reproductive Rights

Anisha Raju and Sarah Margaron Edited By Alasdair Macleod

Anisha is a second yearfrom San Ramon, CA. She is a Psych and Brain sciences major and is pursuing a minor in writing and feminist studies. She is currently an intern at UCSB’s Legal Resource Center which aligns with her goal to go to Law school after graduation.

Sarah is a History Of Public Policy and Law major with a minor in religious studies who plans on going to grad school to study colonization of religion in antebellum America. She plans on attending law school as well. She plans on going into either constitutional or immigration law.

ABSTRACT

The 1973 Supreme Court ruling in Roe v. Wade protects a pregnant woman’s right to terminate her pregnancy under the Constitution.1 The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution establishes a fundamental right to privacy whichprotects a woman’s freedom to choose to have an abortion without excessive government restriction.2 The Texas Heartbeat Act, which bans abortion after a fetal heartbeat is detected, is a violation of this right. A fetal heartbeat is detected six weeks after conception, and most women are unaware of their situation this early into their pregnancy. The Roe v. Wade ruling led to a decrease in abortion death rates, however, the new Texas law will pose significant health concerns for women who seek unsafe abortions without the supervision of medical

1 Roe v. Wade, 410 U.S. (1973). 2 U.S. CONST. amend. XIV, § 1.

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professionals.3 The act passed by Texas’ Congress affects all people but specifically targets those of lower socioeconomic class who lack access to reproductive healthcare.4 The Heartbeat Act gives private citizens the right to prosecute medical professionals who perform abortions, as well as the people who seek them out.5 The implications of private civil lawsuits restrain those who are targeted from pursuing offensive litigation against the state itself. Dismissing the state’s responsibility to uphold constitutional rights, by allowing the private citizens to file lawsuits, may impose future consequences on other constitutional rights. The Supreme Court’s ruling to let the law stand is unconstitutional and posesa threat to all people with uteri.

I. INTRODUCTION

The present condition of a woman's right to bodily autonomy in the United States is the subject of contentious debate amongst lawmakers across the country. The pro-choice movement fights for abortion to be legal, prioritizing the mother’s free will over the fetus. Contrarily, the pro-life movement argues that the rights of the fetus must be protected regardless of the mother’s feelings towards the pregnancy. While abortion rates have gradually declined over the past decade, state legislatures’ efforts to restrict abortion access have increased.6 In the battle against reproductive rights, fetal

3 Rebecca Wind, Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, GUTTMACHER INSTITUTE (Oct. 19, 2017), https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-uswomen-despite-dramatic-declines-rates 4 Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html 5 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.208. 6 Rebecca Wind, Abortion Is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, GUTTMACHER INSTITUTE, (Oct. 19, 2017), https://www.guttmacher.org/newsrelease/2017/abortion-common-experience-uswomen-despite-dramatic-declines-rates

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“heartbeat” bills have become the anti-abortion legislative measure of choice. These restrictions dictate the timeframe in which a woman may seek an abortion before the procedure is criminalized. Several states including Texas have successfully enacted these limitations by the abetment of the Supreme Court. The tactics used to pass the Texas Heartbeat Act by the State’s House of Representatives have been distinguished as unconstitutional by the prochoice movement. Previous Supreme Court precedents have protected the peoples’ rights to bodily autonomy under the Constitution of the United States yet the law itself presents many legal complications in claiming that civil rights have been breached.

II. IMPORTANT AMENDMENTS

The Fifth Amendment to the Constitution of the United States explicitly protects life, liberty, and property from impairment by the federal governmentunder the Due Process Clause (U.S. Const. amend. V, §5). The definition of the terms ‘life, liberty, and property’ has since expanded to support numerous rights related to enumerated rights, including bodily autonomy, without which neither liberty nor justice would exist. At the same time, the Ninth Amendment to the Constitution asserts that the enumerated rights listed within the Constitution are not exhaustive. Therefore the federal government cannot restrict rights not mentioned in the Constitution from the people (U.S. Const. amend. IX). Although abortions are not directly referenced in the Constitution, the people are still awarded this right according to the Ninth Amendment. The Fourteenth Amendment to the Constitution of the United States prohibits the states from curtailing the privileges or immunities of their citizens under the Due Process Clause. The Equal Protection Clause of this legislative addition restrains the states from creating or enforcing laws that deprive their citizens of life, liberty, or property without due process of the law, nor deny any person within its jurisdiction the equal protection of the

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laws (U.S. Const. amend. XIV, §1). The final section of theAmendment proposes that Congress possesses the power to enforce the provisions of this article. Prior to its ratification, the protection of individuals provided by the Bill of Rights was held accountable only against the federal government.7 These new provisions to the Constitution further applied these rights to the states. It is imperative to recognize the significance of the 5th, 9th and 15th Amendments in order to understand the legal battle waged over anti-abortion legislation.

III. ROE V. WADE

In 1854, the state of Texas first enacted a criminal abortion statute that prosecuted those who sought to terminate their pregnancies. In 1879, this statute wasamended to permit the removal of a fetus in the case of a medical emergency, to preserve the mother’s life.8 The next time the state of Texas would revise its abortion laws came when a woman under the pseudonym Jane Roe challenged the Texas’s unconstitutional law by filing a lawsuit against the district attorney, Henry Wade. Citing the Ninth Amendment,the defense argued that a woman’s right to privacy and liberty applies to family, marriage, and sex matters which may include the right to discontinue an unwanted pregnancy. The Fourteenth Amendment was also reviewed in relation to the state’s abortion laws which was rendered a violation of the Due Process Clause. In June 1970, the court ruled that the state’s abortion laws were unconstitutional due to their obstruction of privacy. In the opinion of the Court, the right to privacy is broad enough to encompass a woman’s decision on whether or not to terminate her pregnancy.9 In 1973, Roe v. Wade became a super precedent, a case widely referenced for its interpretation of women’s rights in the constitution, when the Supreme

7 U.S. CONST. amend. XIV, § 2. 8 Texas Abortion Statute Law 1854, c. 49, § 1. 9 Roe v. Wade, 410 U.S. at 152-53.

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Court ruled that the Constitution protects all pregnant persons' right to terminate their pregnancy within the first two trimesters with the exception of medical emergencies during the third trimester.10

IV. THE HEARTBEAT ACT

Forty-eight years after Roe v. Wade was enacted, a new bill regarding abortion was proposed to the Texan Congress. Enacted as Senate Bill 8 (“SB8”), the Texas Heartbeat Act took effect in September 2021. The Heartbeat Act prohibits the termination of pregnancy once an embryonic or fetal cardiac activity is detected which occurs around six weeks after conception. The prolife movement defended that an unborn child’s right to life precedes a mother’s right to bodily autonomy. The exception under, outlined in section 171.204, prevails for medical emergencies which necessitate an abortion to preserve the pregnant person’s life. Section 171.207 of the act grants citizens the right to prosecute those who seek, perform or aid the inducement of an abortion in a court of law. The court may then award the claimant $10,000 for eachabortion that the defendant participated in, performed, or induced in violation of the act.11 The statute expresses that questioning the act’s constitutionality is impermissible as a defense in a court of law.12 The legal debate over abortion now centers around whether the Texas Heartbeat bill is constitutional or not.

V. QUESTIONING THE VALIDITY OF THE HEARTBEAT ACT

10 Roe v. Wade, 410 U.S. at 113. 11 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.208. 12 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.209.

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As aforementioned, The Fourteenth Amendment protects individual rights to privacy which extends to various other rights deemed fundamental tothe definition of liberty.13 Previously referenced in the precedent case Roe v. Wade, these rights include but are not limited to family, marriage, procreation, child-rearing, and the right to bodily autonomy. It is on this basis that the Supreme Court ruled in favor of a pregnant person’s right to choose in Roe v. Wade. The Court decreedthat the privacy protections granted under the 14th amendment do not extend to an unborn fetus.14 The Court also noted that until the fetus is considered viable to survive outside of the womb, it is not justifiable to protect the fetus's rights as any other life. The Constitution does not include the applications of any provisions to prenatal beings therefore the motion to recognize and protect a fetus’s potential rights under the Constitution lacks legal standing.15 The debate about when a fetus holds value as a human life has been the foremost issue of reproductive politics in modern American history. Those in favor of the bill, also known as the pro-life movement, argue the fetus is a life when a heartbeat is first detected. SB8 defines fetal heartbeat as the repetitive rhythmic contraction of the fetal heart within the gestational sac which has been interpreted as the sixth week of pregnancy.16 However, the idea that the embryo has developed a definitive heartbeat by six weeks has been discredited by many professionals in the medical field as an inaccurate portrayal of the gestational timeline. Renowned OB-GYN who specializes in abortion care, Nisha Verma, explains that the "the flickering that we're seeing on the ultrasound that early in the development of the pregnancy is actually an electrical activity, and the sound that you 'hear' is actually manufactured by the ultrasound machine.”17 Dr. Jennifer Kerns, an OB-GYN and associate

13 U.S. CONST. amend. XIV, § 5. 14 Roe v. Wade, 410 U.S. 164. 15 Roe v. Wade, 410 U.S. 164. 16 Texas Heartbeat Act of 2021, TEX. HEALTH & SAFETY CODE ANN. §§ 171.201. 17 Selena Simmons-Duffin & Carrie Feibel, The Texas abortion ban hinges on 'fetal heartbeat.' doctors call that misleading, NPR (Sept. 2, 2021, 4:47 PM ET),

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professor at the University of California, San Francisco, adds that “the term ‘fetal heartbeat’ is misleading…the sound of the heart valves usually can't be heard with our Doppler machines until about 10 weeks.”18 The group of cells that produce this electrical activity does not constitute a fetal heartbeat according to experts in the medical field and thus calls into question the legality of the Texas Heartbeat bill. Despite their informed opinions, SB8 was passed under the pretense that a fetal heartbeat is detectable at six weeks. The Texas Heartbeat Bill recognizes and prioritizes the rights of embryonic cells over the protected rights of the person who is carrying it. Section 171.008 of SB8 requires documentation of induced abortions, when medically necessary, to preserve the health of a pregnant woman. The failure to acknowledge mental health as a part of a woman’s overall health sends a contradictory message. Many mental health conditions that arise from unwanted pregnancies exacerbate physical symptoms which also affect a woman’s health. Indeed, 15% of women develop severe postpartum depression due to a variety of factors including limited social support, marital conflict, and ambivalence about the pregnancy. 19 The risk for suicide is significantly elevated among women suffering from severe postpartum depression and suicide has been found to be the leading cause of death within this population in the United States.20 The Due Process Clause of the Fifth and Fourteenth amendments If the State of Texas authorizes acts that

https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnta-medical-term-but-its-still-used-in-laws-on-abortion 18 Selena Simmons-Duffin & Carrie Feibel, The Texas abortion ban hinges on 'fetal heartbeat.' doctors call that misleading, NPR (September 2, 2021, 4:47 PM ET), https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnta-medical-term-but-its-still-used-in-laws-on-abortion 19 Postpartum depression: Causes, symptoms & treatment, CLEVELAND CLINIC (Apr. 18, 2022), https://my.clevelandclinic.org/health/diseases/9312-postpartum-depression 20 V. Lindahl, J. L. Pearson & L. Colpe, Prevalence of suicidality during pregnancy and the postpartum, 8 Archives of Women’s Mental Health, (2005), 77-87.

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infringe upon the life of the people, it is impossible to protect the liberty of the people.

VI. WHY CAN THE HEARTBEAT ACT PASS ALTHOUGH IT SEEMS TO DEFY THE CONSTITUTION?

Although the Texas Heartbeat Bill infringes upon the rights of the people, SB8’s dependency onthe ambiguousness of Constitutional law made the act permissible. Offensive litigation gives people the ability to challenge unconstitutional laws against the government or any officers responsible for enforcing the law. The citizens may seek a declaratory judgment to rule the law constitutionally invalid and prohibit enforcement of the law within their respective cases.21 By eliminating public enforcement of the act, SB8 removes the option to pursue offensive litigation. Since the government officer is not responsible for the violation of the rights holder’s legal rights, the rights holder is not entitled to legal remedy.22 This also applies to state clerks from filing SB8 actions and judges from adjudicating them. State clerks and judges are not true defendants in offensive litigation and therefore cannot challenge constitutional validity. Furthermore, the existence of a law itself does not infringe upon the rights of the people. A potential unconstitutional law regardless of the rights it may violate is insufficient to warrant federal intervention.23 It is only when the actual enforcement of the law imposes punishment against a rights holder through adjudicative proceedings, they may seek offensive litigation. The act imposes crippling sanctions which deter many people from violating the law to avoid incurring liability.24 This has

21 Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021). 22 Anwar v. Fairfield Greenwich Ltd., 118 F. Supp. 3d 591 (S.D.N.Y. 2015). 23 Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021). 24 Ex Parte Young, 209 U.S. 123 (1908).

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thwarted the efforts of organizations, such as Whole Woman’s Health, to challenge the law in the pre-enforcement process.25

VII. HISTORICAL PARADIGMS OF FEMALE AUTONOMY

The protection of women's rights stems far past the right to abortions, but even the right to conceive and bodily autonomy. What the Texas Heartbeat Bill fails to directly state but enables is the harmful history of eugenics in the U.S. Buck V. Bell,the 1927 case that followed the study of Carrie Buck, a disabled woman who had been raped after being placed into foster care. The Supreme Court decided that since she was declared mentally disabled that it was well within Virginia’s rights to forcibly sterilize her. The justification for this was the fact that she had been admitted to a hospital for psychiatric care after her rape, her mother had a history of being mentally disabled, and there were suspicions that her child was. "Three generations of imbeciles are enough.”26 Supreme Court Justice Oliver Wendell Holmes Jr. argues in the closing arguments of the landmark case. Later investigations concluded that neither Carrie nor her child were mentally disabled, but that did not matter. The Court, as per the Fourteenth Amendment, should not be able to overturn someone's right to their own bodily autonomy solely because of their mental or physical well-being. The Court's decision has never been overturned. Criminalizing abortion has never led to a decline of abortion. The World Health Organization has stated that the rate of unsafe abortions is approximately four times higher than it is in countries that have restrictive

25 Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas, 114th District, et al. 595 U.S. _ (2021). 26 Buck v. Bell, 274 U.S. 200 (1927). 24 Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION, (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html

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medical access to these operations. 27According to a 2015 study in Argentina, a country with some of the most restrictive healthcare rights for abortion seekers, unsafe abortions are one of the leading causes of mortality. Access to safe abortions will not be a problem for all Americans, even under these restrictive bills. Upper-class women will be more likely to be able to seek safe abortions somewhere else. Whether that be out of state, or out of the country. Low income or women of lower socioeconomic status women will have to seek out other means of healthcare, which as we have seen historically, is predominantly unsafe, leading to the death of low-income women who seemingly had no other choice,unlike their privileged counterparts.28 This, and taking into account the fact that a large number of people of color in America are disproportionately economically disadvantaged due to systematic economic oppression from the system of enslavement, sharecropping, and Jim Crow laws, People of Color in America are inherently more likely to die due to unsafe maternal care than their white counterparts.29 The Heartbeat

27 Guía para la atención integral de mujeres que cursan un aborto, PRESIDENCIA DE LA NACION (Apr. 2015), http://iah.salud.gob.ar/doc/Documento106.pdf 28 Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, (Apr. 2018), https://www.nationalpartnership.org/ourwork/resources/health-care/maternity/black-womens-maternal-health-issue-brief.pdf Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (Feb. 23, 2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the state of occurrence, KAISER FAMILY FOUNDATION (2021), https://www.kff.org/womenshealth-policy/state-indicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, (Apr. 2018), https://www.nationalpartnership.org/ourwork/resources/health-care/maternity/black-womens-maternal-health-issue-brief.pdf 29 Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (Feb. 23, 2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the

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Bill is not as restrictive to the more privileged, typically white, women who can afford it; instead, it seeks to restrict healthcare access to lower-income women and predominantly Women of Color.

VIII. IMPLICATIONS IN OTHER STATES

The HeartbeatBill has become a massive inspiration under the Bible Belt of the United States to push for more restrictive healthcare laws for women.30 Just a month after the Heartbeat Bill was passed, over 561 restrictions on abortion were introduced, and in Septemberof 2021, 97 new restrictive abortion laws were put into place. The total number of abortion restrictions enacted since Roe v. Wade'spassing is 1,327.31 The restrictions proposed in the first half of 2021 would make about a third of the total restrictions enacted since Roe v. Wade itself. The restrictions for people who need access to abortion that are quickly spreading throughout more conservative states just further the dangers of unsafe abortions potentially resulting in unsafe abortion procedures in these states.32 With the rise in the criminalization of abortion, many women who are unable to access legal abortions because of

state of occurrence, KAISER FAMILY FOUNDATION (2021), https://www.kff.org/womens-health-policy/state-indicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, (2018), https://www.nationalpartnership.org/our-work/resources/healthcare/maternity/black-womens-maternal-health-issue-brief.pdf 30 Justine Coleman, Texas law opens door for other states to pursue abortion restrictions, THE HILL, (Sept. 3, 2021, 10:04 PM ET), https://thehill.com/policy/healthcare/570801-texas-law-opens-door-for-other-states-topursue-abortion-restrictions/ 31 Elyssa Spitzer & Nora Ellmann, State Abortion Legislation in 2021: A Review of Positive and Negative Actions, CENTER FOR AMERICAN PROGRESS (Sept. 21, 2022), https://www.americanprogress.org/article/state-abortion-legislation-2021/ 32 Racial and Ethnic Disparities Continue in Pregnancy-Related Deaths, CENTERS FOR DISEASE CONTROL AND PREVENTION (Sept. 5, 2019, 1:00 p.m. ET), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancydeaths.html

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geographical reasons will find themselves in more dangerous, life-threatening situations. American women have to travel on average 11 miles to be able to access an abortion clinic, but women in these states that are already restricting healthcare will have to travel over 43 miles. Texas, Iowa, and Montana have some of the largest travel distances for abortion.33 This, along with the fact that many abortion facilities often have waiting periods that can be a few days, abortion access is becoming restricted based solely on where you live, if you have time off, and the means to travel.34

CONCLUSION

Roe v. Wade set the precedent not just on how we view abortive rights in the United States but how we interpret the Constitution. Landmark cases such as Roe v. Wade have been ruled in the same way, so that the Supreme Court could interpret the Constitution; so, many landmark cases including Obergefell v. Hodge,the 2015 case that gave LGBTQ+ people the right to marry, Loving v. Virginiawhich allowed interracial marriage, Griswold v. Connecticutwhich allowed for married couples to have access to birth control.35 These decisions were brought by the same justification that the Supreme Court used forRoe v. Wadedown to the amendment used for its justification, the 14th. Allowing Roe v. Wadeto be uprooted in this time not only uproots the right for women to practice their own autonomy but also paves the way for other landmark cases to be uprooted and overturned as well. These cases affect the very day-to-day lives of a large number of

33 Alexandra Sifferlin, This is how far women in the US have to travel for abortions, TIME (October 3, 2017), https://time.com/4967735/how-far-american-women-travelfor-abortion/ 34 Alexandra Sifferlin, This is how far women in the US have to travel for abortions Time (October 3, 2017), https://time.com/4967735/how-far-american-women-travel-forabortion/ 35 Obergefell v. Hodge, 576 U.S. 644. Loving v. Virginia, U.S. Supreme Court Pp. 388 U. S. 4-12. 206 Va. 924, 147 S.E.2d 78, reversed. Griswold v. Connecticut, 381 U.S. 479 (1965)

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Americans and stem far past the right for a mother to be able to decide when to terminate a pregnancy. The overturning of Roe v. Wade overturned the America we know today, down to who is allowed to marry who regardless of race or gender, birth control use, and bodily autonomy. Women who are disabled, lower class, and racial minorities are more likely to be victims of these laws themselves, which inclines us to ask who the laws are truly meant to target. When more privileged, often white upper class, women are able to successfully and safely gain access to abortionthen the limitations are not on women; but the lower class, disabled, and women of color who are the ones systematically more likely to be killed, criminalized, and restricted by these bills themselves.36 The issue of abortion is not just one of women's rights, but of a much larger struggle existing within race, class, sexual orientation, and disability. The Heartbeat Billwill not stop abortions, only prevent safe ones. If the public officials who proposed this bill's true intention are to stop lives frombeing lost,then their efforts are ineffective and useless. Aiming to stop abortion does nothing, but preventing safe ones kills.

36 David Blumenthal & Laurie Zephyrin, Texas's new abortion law will harm people of color, further entrench racist policies, COMMONWEALTH FUND (Sept. 22, 2021), https://www.commonwealthfund.org/blog/2021/texass-new-abortion-law-will-harmpeople-color-further-entrench-racist-policies Maternal mortality rates in the United States, 2020, CENTERS FOR DISEASE CONTROL AND PREVENTION (2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates2020.htm Reported legal abortions by race of women who obtained abortion by the state of occurrence, KFF (2021), https://www.kff.org/womens-health-policy/stateindicator/abortions-byrace/?currentTimeframe=0&sortModel=%7B%22colId%22%3A%22Location%22%2C %22sort%22%3A%22asc%22%7D. Black Women's Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES, (April 29, 2022), https://www.nationalpartnership.org/ourwork/resources/health-care/maternity/black-womens-maternal-health-issue-brief.pdf

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SECTION III POLITICAL GEOGRAPHY

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