What Trump Means for Abortion Access

For more information, contact the authors:
Alice Cartwright
[email protected]
(510) 986-8927

Ushma Upadhyay
[email protected]
(510) 986-8946
Monica McLemore
[email protected]
(415) 200-6097

During his campaign, President Donald Trump emphasized that his main goals regarding abortion would be to nominate anti-choice justices to the Supreme Court to overturn Roe v. Wade, make the Hyde Amendment “permanent law,” end later abortions, and defund Planned Parenthood. He also stated at one point that if abortion were to become illegal, there should be “some form of punishment” for women having the procedure.

Before abortion became legal across the U.S. in 1973 through the Supreme Court case Roe v. Wade, an estimated 1.2 million women per year sought illegal abortions. Many thousands of women died or suffered severe injuries as a result. Today, legal abortion is safe. Recent research estimates that less than one quarter of one percent of abortions result in major complications.

OVERTURNING ROE V. WADE

An anti-abortion justice is likely to be confirmed to fill the late Justice Antonin Scalia’s seat. This would return the Court to the same split on the legality of abortion as it was before his death (5-4). This makeup of the Court likely lacks the votes to overturn Roe.

However, if Trump is able to nominate and confirm two anti-choice justices during his presidency, Roe may be overturned. States would then have the ability to make abortion illegal, even in cases of rape, incest, and when it is medically necessary to protect the health or life of the woman. Additionally, federal laws could be passed that would further restrict abortion access, such as a ban on nearly all abortions or a ban at 20 weeks.

FEDERAL RESTRICTIONS ON ABORTION ACCESS

Currently federal funding cannot be used to pay for abortions except in rare cases because funding is banned through a "rider" attached to other bills that Congress must approve annually. Under a Trump administration, this rider, the Hyde Amendment, could become permanent law.

Such a law would mean a permanent ban on federal funding for abortion services through Medicaid and any other federal government health plans. This could also lead to bans on abortion coverage for any plan offered through the Affordable Care Act. 

STATE RESTRICTIONS ON ABORTION ACCESS

Legal landscape in the states: For over forty years, the Supreme Court has held that a woman has a constitutional right to access abortion. In 1992, the Court reaffirmed this in Planned Parenthood v. Casey, holding that states may not ban abortion prior to viability, and abortion restrictions which pose an undue burden on access to care are unconstitutional. However, states continued to pass restrictions on abortion, including over 300 from 2010 to 2016.

The “undue burden” legal standard did not provide courts with clear guidance until recently, when the Supreme Court issued its decision in Whole Woman’s Health v. Hellerstedt. In that case, the Court reaffirmed that access to abortion care is a fundamental constitutional right and clarified that the undue burden standard provides robust protections for abortion access.

Looking forward: State legislators report feeling emboldened to pass new abortion restrictions with the election of Donald Trump. In December 2016, Texas passed a law that will require burial or cremation of embryonic fetal tissue after an abortion, regardless of a woman’s personal wishes or beliefs. This law is temporarily blocked by the courts as of January 27, 2017. Ohio and Kentucky are the most recent states to pass a 20-week ban on abortion. 17 states have bans on abortion after 20 weeks in effect.

This is in direct violation of Roe v. Wade, which only allows bans after viability – often interpreted to mean about 24 weeks – as long as there are exceptions to protect a woman’s health or life.

STATE PROTECTIONS ON ABORTION ACCESS

Some states have moved to introduce and enact pro-active policies around access to abortion. These include laws that protect the confidentiality of the patient-provider relationship, expanding the types of healthcare providers who can provide abortion beyond physicians, and expanding access to medication abortion through telemedicine. States have also stopped enforcing laws restricting abortion that have no demonstrated medical benefit. States also can elect to use state Medicaid funds for coverage of abortion despite the ban on use of federal funds.

IMPACT OF ABORTION RESTRICTIONS

Restrictions on abortion have important implications for women’s health.

WHAT EXPERTS SAY:

 “Targeting and restricting access to abortion care isn’t new, but we now face an era that may further increase restrictions and further limit women’s ability to decide whether and when to become pregnant. Access to the full spectrum of women’s reproductive health services is essential to women’s overall health and well-being, and we must continue to advocate for all women.” 

Professor Susan F. Wood
[email protected]
(202-994-4171)

“Women already face considerable barriers to obtaining an abortion. Most women are able to overcome these barriers, but some are not. Women who are not able to overcome these barriers tend to be the most economically vulnerable. Further restricting abortion is likely to have adverse consequences for women’s health and well-being.”

Associate Professor Sarah CM Roberts
[email protected]
(510-986-8962)

“Defunding Planned Parenthood, in a misinformed effort to reduce abortion, would leave millions of people without access to basic preventive care. Communities across the country rely on Planned Parenthood to provide affordable contraception, cancer screening, and prevention and treatment for sexually transmitted infections, often for patients who have nowhere else to turn.”

Assistant Professor Debra Stulberg
[email protected]
(773-834-1356)


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February 2017