It has been more than 40 years since the United States Supreme Court held in Roe v. Wade that a woman, in consultation with her physician, has the right to decide whether to have a child in the early months of pregnancy.
In the years since, the Supreme Court repeatedly has rejected efforts to overturn Roe v. Wade — efforts which, if successful, almost certainly would have galvanized a national movement of middle-class women, privileged college students and young working women that would have changed the face of national politics.
But we on the pro-choice side won those battles, convincing a majority of even the most conservative Burger, Rehnquist and Roberts Courts not to overrule the underlying decision.
In the meantime, we have been losing the war.
The war, as I put it, is to provide access to safe, legal, affordable medical treatment for the women who need it most: those who are young or poor or live in rural communities with few health care options, those who cannot afford to take days off of work to travel to another state, who cannot afford repeated and unnecessary visits or hospital admissions required not by good medicine but by divisive politics.
Make no mistake: If a middle-class woman in a big city or a college student at a private university needs a safe and legal abortion, she will get one. When I tell my students, my students at a private university in the bright blue state of California, about friends who hemorrhaged in the bad old days, I might as well be talking about growing up in a log cabin and walking miles through the woods to school. They take their choices for granted, which would be a wonderful thing if it were true for everyone. It isn’t.
The most recent case comes from Arizona, where the law has been changed to allow the state to bar access to RU-486, an abortion-inducing medication, from women who are more than seven weeks pregnant, as opposed to the current law, which allows such access up to nine weeks.
Sound like a meaningless difference? It isn’t. In counting the weeks, you start with the day of your last menstrual period. Seven weeks pregnant means, in basic terms, that your period is three weeks late as opposed to five weeks late. But many young women have irregular periods to begin with and are “late” to recognize that they are pregnant. And the advantage of RU-486 is that it is, quite simply, cheaper and easier than alternatives.
Arizona is one of five states that are currently embroiled in litigation about restrictions on the right to choose, one of a dozen that continue to regularly pass laws that would take the abortion decision from a woman and her doctor and put it in the hands of politicians and judges.
And each time one of these states passes one of these laws, lawyers run to court, judges hold hearings, enormous resources are spent, and poor and needy women get caught in the middle.
If a woman has a right to choose, which is what Roe v. Wade says, then how that medical decision is executed — that is, in a hospital or in a clinic, using a surgical or a nonsurgical method, by one doctor or two doctors or a highly qualified nurse or a physician’s assistant — is and should be a medical decision, not a political one. I don’t know how many doctors serve in the Arizona legislature, but as someone who has been a law professor for 33 years, I can promise you that we in the legal profession are no more qualified to make medical decisions than doctors are to provide legal advice.
If you had told me back when I worked on my first abortion case nearly 40 years ago that we would still be at it, still be fighting and litigating over new efforts to restrict abortion, I would not have believed it. It is not just a waste of lawyer time and court time. It is nothing short of cruel.