HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, November 11, 2014

Guest Blogger Professor Maya Manian: The 2014 Midterm Elections and Access to Reproductive Healthcare

ManianThe Republican landslide in the 2014 midterm elections signals difficult times ahead for securing women’s access to reproductive health care. The conservative wave in state legislatures after the 2010 midterm elections led to an onslaughtof anti-abortion legislation, the effects of which continue to be felt today. For example, sweeping anti-abortion legislation in Texas has shut down over half the state’s abortion clinics so far, leaving many Texas women hundreds of miles from the nearest clinic.

Reproductive health care access—especially access to abortion and contraception—now faces threats from multiple levels of government. First, increasingly conservative state legislatures will continue assailing abortion access with legislation claiming to protect women’s health, such as admitting privileges requirements, that in fact serve no health-protective purpose and instead aim at shuttering abortion clinics. In one of the most heavily fought voter initiatives this election cycle, Tennesseevoters approved a ballot measure thatstripped protection for abortion rights from the state constitution. The measure will unleash anti-abortion forces in the state legislature, who are poised to enact new laws hindering access to abortion care. Of course, state laws will still be subject to scrutiny under the federal constitution in the federal courts—and this is where the Republican takeover in the U.S. Senate comes into play.

The second area of concern arises from the Senate judicial confirmation process. The power shift in the Senate will certainly impact judicial nominations to the federal courts. President Obama’s ability to appoint more progressive judges to the federal courts will be severely hampered, and as we are seeing in a number ofrecent federal court decisions, who is sitting on the federal bench has a huge impact on the development of abortion law and on whether women will have access to abortion care in reality as well as in theory.

A third prong of attack also seems likely from a Republican controlled Congress, which could pass restrictive abortion bills at the federal level, such as a nationwide ban on abortion at twenty weeks gestation, or burdens on access to contraception, but such proposals could be vetoed by the President.

Although the future looks daunting for women’s continued access to reproductive health care, some good news did come out of this election cycle. The defeat of two personhood ballot initiatives, in Colorado and North Dakota, follows a string of defeats for personhood proposals even in strongly anti-abortion states like Mississippi. Personhood laws claim to be about banning abortion, but in fact would likely impede access to care for pregnant women, ban some of the most effective methods of contraception, and prohibit fertility treatments such as IVF. The public’s consistent rejection of these laws reflects concern for women’s health care more broadly.Ironically, the personhood movement’s attempt to vilify abortion by personifying zygotes may help to educate the public about the importance of preserving access to abortion care in order to preserve access to less stigmatized forms of health care.

As I have written elsewhere, personhood opponents may have struck on a strategy that could apply more broadly. Part of the popularity of anti-abortion measures rests on the faulty belief that those laws affect only the “bad” women who seek abortions. This belief relies on the false assumption that abortion can be segregated from other aspects of women’s health care. However, in reality, abortion cannot be isolated from the continuum of women’s medical needs. Existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured.

Although there are important differences between personhood laws and other types of abortion restrictions, battles about personhood proposals could be instructive for reproductive health advocates. A key strategic opportunity may lie in erasing the artificial line between abortion care and other women’s health issues. Advocates should keep this in mind as the battle over reproductive rights inevitably heats up in the coming years.

-Professor Maya Manian

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