More than 60 new restrictions on access to abortion were passed by 19 states in 2016, according a year-end report from the Center for Reproductive Rights. The regulations run the gamut from attempts to ban abortion altogether, to excessive paperwork requirements for providers and measures that would restrict the donation of aborted fetal tissue for medical research.
In sum, 2016 was a just another normal year for advocates who have battled to protect women’s reproductive autonomy. Notably, however, state or federal courts ultimately blocked many of the onerous provisions, a circumstance that underscores how important the judiciary is in protecting women’s rights.
Still, with the looming ascension of a Trump-Pence administration, the CRR notes that advocates must remain vigilant. “Given signals from the president-elect and new administration, we know that we must renew our commitment to defend the rights of women to make decisions that affect their health, their lives, their families and their futures,” reads the report.
One of the most egregious attacks on reproductive freedom came from the vice president-elect, Indiana Gov. Mike Pence, who on March 24 signed into law a legislative package that included two particularly controversial provisions: one that would forbid a woman from seeking an abortion based on the presence of a fetal abnormality and a second that would require burial or cremation of aborted fetal tissue. “By enacting this legislation, we take an important step in protecting the unborn,” Pence said in a signing statement. “I sign this legislation with a prayer that God would continue to bless these precious children, mothers and families.”
While Pence and others framed the legislation as a way to provide dignity to the terminated unborn and as a nondiscrimination law that would prevent the abortion of a fetus strictly because of its gender or potential for disability, advocates for women’s health saw the measures not only as an undue burden on women seeking legally-protected health care, but also as a thinly-veiled attempt at a categorical ban on pre-viable, first trimester abortion. “The law does not value life, it values birth,” Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky (PPINK) said at a press conference after the bill’s signing. “What needs to be made abundantly clear is that what this is really about is making abortion go away entirely.”
The ACLU of Indiana filed suit on behalf of PPINK, seeking to block the provisions, and on June 30 a federal district judge imposed a preliminary injunction, prohibiting the state from enacting the measures while the lawsuit moves forward.
One of the biggest legal wins of the year came in late June, when the U.S. Supreme Court blocked two onerous restrictions enacted in Texas, in what the CRR calls a “watershed victory for the reproductive rights movement.” In that case, Whole Woman’s Health v. Hellerstedt, the court blocked a provision that would require abortion clinics to undertake costly renovations to transform themselves into hospital-like ambulatory surgical centers, and another that would require doctors to have hospital admitting privileges within 30 miles of each clinic where they perform the procedure.
According to the state, the measures were necessary to ensure women’s health and safety. In practice, the measures led to the closure of nearly two dozen clinics, leaving women across large swaths of Texas without any meaningful access to care. For many women, the restrictions meant having to travel hundreds of miles to access services.
Confronted with evidence of the geographical and monetary burdens that the restrictions would create, the state put the lie to its own protestations that the measures were enacted with the well-being of women in mind. In talking about the travel burdens facing women in far West Texas, for example, a lawyer for the state noted that women in the El Paso area could simply travel across the state line into New Mexico to seek care. Notably, that state does not impose the very restrictions the state was arguing were necessary in order to promote women’s health.
In its opinion, the Supreme Court placed significant weight on the evidence brought by Whole Woman’s Health that the provisions created an undue burden, evidence the state could not rebut, signaling that going forward empirical evidence would be important and that the courts could not merely defer to lawmakers’ statements of legislative intent, which previously, in various instances, had carried the legal day.