Weeks after the 1973 Roe v. Wade decision, anti-abortion activists began to strategize about challenging the decision. One tactic was a “whittle away” plan. If they could make abortion too costly for women to access and too burdensome for providers to offer, they would be able to erode Roe.
On June 27, the Supreme Court hindered this four-decade-old anti-abortion strategy and invited more challenges to it.
In a 5-3 decision, the court declared unconstitutional HB2, a Texas law requiring that physicians working at abortion clinics have admitting privileges at local hospitals and mandating that clinics be ambulatory surgical centers. Texas’s unduly burdensome legislation, the court stated, caused the shuttering of more than half of the abortion clinics in Texas. In turn, many women found themselves hundreds of miles away from clinics and unable to access them. For many, the means to travel, the cost of the procedure, and the ability to take time away from home and work are prohibitive.
Some women, unable to reach abortion providers easily, attempted to self-induce abortions. Others abandoned plans to terminate their pregnancies. Needy women with fewer means of course were affected disproportionately by HB2.
Religious leaders and laity in the Jewish community have long recognized that the ability to pay for an abortion is as important as laws protecting the right to have one and the availability of doctors willing to provide the service. In the 1960s and early ’70s, rabbis joined with Protestant ministers to set up an international abortion referral service that shepherded women to affordable and safe providers domestically and abroad. Further, rabbis played crucial roles in raising funds for women who could not afford to access the procedure.
One of the places where women went was a small town in Texas where a former Southern Baptist preacher turned medical doctor, Curtis Boyd, performed over 35,000 illegal abortions for clergy referrals. Today Boyd recalls the desperation his clients experienced before Roe. And he remembers that the scarcity of clinics and the widespread demand for abortion prevented him from helping all the women in need.
They came from Minnesota, from South Dakota, from New York, from Louisiana, Texas, Oklahoma, all around. They came from all over the United States…. I couldn’t come close to meeting the need.
In cities such as New York, Cleveland and Philadelphia, rabbis encouraged medical professionals in their own congregations to offer affordable abortion services. Over a half-decade, these clergy helped upward of a quarter of a million women safely obtain non-ambulatory abortions. This experience taught rabbis that without a means of accessing affordable abortion providers, women will endanger themselves by pursuing unsafe medical options, or carrying unwanted pregnancies to term.
Today, groups such as Keshet, the Jewish Social Policy Network, the Society for Humanistic Judaism, the National Council of Jewish Women, the Union for Reform Judaism, the Central Conference of American Rabbis, the Women’s League for Conservative Judaism and the Workmen’s Circle/Arbeter Ring all continue this legacy in their advocacy for reproductive rights and unburdened access to medical services. As they made clear in their amicus brief, the stakes of the case were about a woman’s “moral authority to make her own decisions about her pregnancy.”
Although Texas legislators claimed that these regulations were necessary to protect women from medical malpractice or dangerous practitioners, HB2 was not about protecting women’s health. It was about limiting access to abortion. In finding that HB2 was a solution in search of a problem, the court exposed the falsehood perpetuated by Texas legislators and anti-abortion activists, which holds that abortion is a medically dangerous procedure. The court, in other words, recognized what has been demonstrated and thoroughly documented over the past half-century: First-trimester abortion is a nonambulatory and low-risk procedure far less dangerous than tonsillectomies or colonoscopies.
The decision will have national implications and will help preserve women’s ability to access abortions nationwide. However, in her concurring decision, Justice Ruth Bader Ginsburg reminds us that it would be a mistake to see the matter of abortion access as fully settled. She practically invites further challenges to TRAP laws, writing, “Targeted Regulation of Abortion Providers laws like H. B. 2 that do little or nothing for health, but rather strew impediments to abortion… cannot survive judicial inspection.”
The proliferation of TRAP legislation across 44 states has created a web of regulations that makes every aspect of running an abortion clinic cumbersome and costly. Endless laws stipulating minutiae, including the width of hallways, the color of paint on the walls and the size of the closets, have forced clinics to expend time and money undertaking expensive renovations. A parallel set of laws target patients and include mandatory waiting periods, unsolicited counseling and provisions regarding the disposal of fetal remains. Such regulations have made women’s process of accessing abortion clinics emotionally and financially harrowing. Each of those laws might now face judicial review or revocation.
For now, Texas’s clinics can reopen, and access has been restored. Nonetheless, to understand the moral stakes of abortion access in Texas and nationwide, perhaps it’s best to turn back to Dr. Boyd who has been offering abortions in Texas for over half a century:
Abortion services are not about abortion primarily… It’s about women’s place in society, women achieving equality. It’s a much bigger issue. This is the battle that must be won if we are ever going to win this so-called war on women. If women are ever going to achieve equality and full citizenship, this they must wipe out because this is where they most clearly say: ‘We’re taking over your body. We’re taking over your decision making.’ … No matter how far women go, as long as [abortion restrictions] exist they have not achieved the proper place of respect, have not achieved societal equality. So we must win this issue. And we will for that very reason. Women eventually will prevail.