No One Wants an Abortion: But We Have the Right to One When We Need One.
Ever since the United States Supreme Court held that abortion is legal in the United States, in Roe v. Wade (1973) (Cornell University Law School, 2014), there has been considerable debate and pushback from Americans who disagree with the ruling (Ziegler, 2014b). Interestingly, this ruling preceded the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which was adopted by the United Nations General Assembly December 18, 1979 (United Nations, 1979). A clear statement of the international community’s commitment to women’s reproductive rights is made in Article 12 (1) of this Convention; the Convention declares that States agree to “take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to heath care services including those related to family planning (United Nations, 1979).“ Family planning has been interpreted as including abortion and contraceptive care for women (Shalev, 1998; World Health Organization, 2014), thus establishing the right to these reproductive options.
The United States (US) signed, but did not ratify, this Convention, which means that it is not actual State law; however, the US is subject to the laws set forth in its Constitution, which include equal protection under the law and natural human rights which are not explicitly outlined in the Constitution (Cornell University Law School, 2014; United Nations, 2014). Therefore, the right to family planning, as outlined in the Convention, is a human right that should be realized for citizens of the United States.
The purpose of this paper is solely to establish that the right to family planning, including abortion, is a fundamental human right; this is a right that should therefore be afforded in the United States. Many nations, including the United States, have agreed to the Convention, which means that the agreement must be enforced. As the title of the paper indicates, it is the author’s opinion that many women do not “want” to have an abortion, but the right to one exists for women who decide that this is an essential decision for them. Therefore, author offers a solution to the dilemma women face when deciding whether or not to exercise their right to an abortion: improving access and freedom of choice to birth control among vulnerable populations.
This paper is an updated brief literature review of what is currently happening with respect to abortion and women’s access to birth control in the United States. Hein Online, Google Scholar, and Google were all used to find relevant articles and websites. Although the original search limitation was to 2014 articles and websites, which have been updated in 2021 to reflect what is currently going on, the number of resources remained large in quantity. Search terms included “women’s right to reproductive health birth control US,” “States with barriers to birth control in the United States,” and “women’s right to reproductive health and United States and abortion Not surrogacy.” When using Hein, sources were limited to Core US Journals, Women and the Law (Peggy), US Supreme Court Library, and US Treaties and Agreements Library. Initial searches returned 381 for Hein and 7,120 for Google Scholar. After the surrogacy limitation, Hein sources were reduced to 270. Google Scholar returns were reduced to 3,780 when using “state barriers to abortion US birth control.”
Articles discussing women’s reproductive rights and abortion and/or birth control were included. Empirical research articles were included as well as law reviews. For background information and idea generation, some of articles and rulings before 2021 were included. Articles reporting on countries outside of the United States were excluded. Websites with information about current laws on abortion and birth control were included for review.
Abortion in the United States (US)
Roe v. Wade ruled that women have a choice in their medical decisions, including abortion, due to the protection of US Constitution Amendments 9 and 14 (Cornell University Law School, 2014). Amendment 9 protects human rights not included explicitly in the Constitution, related to life, liberty, and the pursuit of happiness; Amendment 14 provides equal protection of the laws for all American citizens (Cornell University Law School, 2014). As indicated above, since the ruling of Roe v. Wade, there have been several subversive tactics employed to limit or eradicate abortions in several States, and the number of attacks has increased over the past decade (American Civil Liberties Union, 2014; Guttmacher Institute, 2014d, 2019b; Planned Parenthood, 2014; Ziegler, 2014b). Furthermore, other cases (such as Gonzales v. Carhart) have since challenged portions of Roe v. Wade through upholding partial-birth abortion bans (Siegel, 2014). Twenty one states have since prohibited partial-birth abortions (Guttmacher Institute, 2020a). These tactics to limit or eradicate abortions are not only unconstitutional, they are also human rights violations (Shalev, 1998; United Nations, 1979).
Note. This figure was reprinted from the (Guttmacher Institute, 2019a).
Even though the abortion incidence continues to decline, and in 2017 was at the lowest rate since 1973, US citizens and lawmakers continue to be concerned with limiting access to this lawful procedure (see Figure 1) (Guttmacher Institute, 2019a; Jones & Jerman, 2014; Pazol, 2011). It is noteworthy that in 2018, abortion rates increased by 1% (Centers for Disease Control and Prevention, 2020), which coincides with policy and court cases that were enacted and advanced to increase barriers to birth control (Amiri, 2020). Unconstitutional acts instigated by states can include bans determined by gestational limits by which pregnant women can seek abortions; attacks on Planned Parenthood, including its funding, vendors, services, and patients; physician and hospital requirements; public funding; coverage by private insurance; targeted restrictions of abortion providers (TRAP); non-surgical abortion bans; biased counseling; waiting periods; refusal; parental involvement; and “personhood” legislative measures (American Civil Liberties Union, 2014; Guttmacher Institute, 2014d; NARAL Pro-Choice America, 2014; Planned Parenthood, 2014). These unconstitutional acts are important to recognize if something is to be done about the injustice of limiting women’s rights to family planning, therefore, the author has provided a brief outline of each of these forms of anti-abortion legislation here. Many of the forms of restriction or regulation listed below are largely unjustified tactics masquerading in the form of protecting women’s health. As the CDC has stated, abortion is a safe procedure when performed in the legal existing medical structures available in the United States: there were 10 deaths out of 100,000 abortions performed in 2011 (American Civil Liberties Union, 2014; Centers for Disease Control and Prevention, 2020; Pazol, 2011). Although no amount of morbidity is ideal, a low number (.01%) seems like a safe number.
Gestational limits. Several states (43) have legislated a ban on abortions occurring after certain gestational periods (American Civil Liberties Union, 2014; Guttmacher Institute, 2020a). Fifteen states have attempted to ban abortion before viability, but these laws were struck down by court order (Guttmacher Institute, 2020b).
Attacks on Planned Parenthood and public funding. Planned Parenthood is a national non-profit organization that provides family planning services for women in the United States. It is estimated that 1 in 5 women will visit Planned Parenthood at some point in their lives to receive gynecological care, birth control, abortions, education, general health care, STD testing, and other services (Planned Parenthood, 2014). Planned Parenthood is funded 37% by government health services grants and reimbursements, 23% by non-government health services revenue, 36% private contributions, and 4% other (Planned Parenthood, 2019). It was estimated that 393,000 unintended pregnancies were averted due to Planned Parenthood services (Planned Parenthood, 2019).
Physician and hospital requirements. This type of legislation determines what type of healthcare provider, as well as requirements as to what sort of services and provisions a hospital or healthcare facility must possess in order to perform abortions. Guttmacher (Guttmacher Institute, 2020a) stated that “39 states require an abortion to be performed by a licensed physician. 19 states require an abortion to be performed in a hospital after a specified point in the pregnancy, and 17 states require the involvement of a second physician after a specified point.”
Coverage by private insurance. Some states (12) place restrictions on private insurance companies’ coverage of birth control (Guttmacher Institute, 2020a). Additional abortion coverage is available in some states for an additional fees (Guttmacher Institute, 2014d, 2020a). The exceptions to these rules may be in the event of the woman’s life being endangered (Guttmacher Institute, 2020a).
Targeted restrictions of abortion providers (TRAP). As of December 1, 2020, 26 states have TRAP laws (Guttmacher Institute, 2020c). TRAP laws include arbitrary restrictions on abortion providers and/or facilities to make access and provision of abortion so difficult that the number of providers (and therefore abortions) will be diminished (American Civil Liberties Union, 2014; Finer & Zolna, 2013; Guttmacher Institute, 2014e; Jones & Jerman, 2014; Planned Parenthood, 2014). Some such restrictions include requiring that providers have admissions privileges (can admit patients to a hospital), affiliations with a hospital, agreements with admitting physicians, and/or an obstetrician-gynecologist certification (American Civil Liberties Union, 2014; Guttmacher Institute, 2014e). Requirements placed on facilities include size of procedure rooms, corridor width of hallways, and that the facility must be within a certain distance from a hospital (Guttmacher Institute, 2014e).
Non-surgical abortion bans. Non-surgical abortion options, using medication in early pregnancy, are now available for women who wish to avoid the surgical procedure option (Harms, 2014; Planned Parenthood, 2021). States who ban this procedure force women to undergo surgery for abortion (Planned Parenthood, 2014, 2021).
Biased counseling and waiting periods. These tactics include mandatory ultrasounds; state-mandated scripts; mandatory waiting periods; counseling about fetus pain, mental health consequences, and associations between breast cancer and abortion; and other unnecessary hurdles for women and/or healthcare providers to take in order to get an abortion (Guttmacher Institute, 2014d; NARAL Pro-Choice America, 2014; Planned Parenthood, 2014, 2021). 25 states require a woman to wait at least 24 hours between initial consultation and the actual procedure (Guttmacher Institute, 2020a).
Refusal. Also known as “conscience laws,” these types of legislation allow healthcare providers to refuse to perform an abortion procedure (Manian, 2014). These laws are especially pertinent within the nation’s largest percentage of religiously-affiliated hospitals, Catholic hospitals (Manian, 2014). Forty-five states allow refusal of services related to abortion (Guttmacher Institute, 2014d, 2020a) .
Parental involvement. Depending on the state, minors can be required to receive parental consent to receive abortion services. Thirty-seven states require parental consent for a minor’s abortion (Guttmacher Institute, 2020a).
“Personhood” legislative measures. This type of attack focuses on giving the fertilized egg “personhood” status under the law, which means the unfertilized egg has full constitutional rights (Planned Parenthood, 2021).
Birth Control Access in the United States (US)
In 2011 (the most recent year this data was available), 45% of pregnancies were unintended (Finer & Zolna, 2016). Access to birth control could help reduce the number of abortions, which is already on the decline since women began having increased access to birth control in the 1970s (Guttmacher Institute, 2014c; Jones & Jerman, 2014; Pazol, 2011). Since the passage of the Affordable Care Act (ACA), many more women have been afforded access to birth control (Guttmacher Institute, 2014a; NARAL Pro-Choice America, 2014; Planned Parenthood, 2014). The ACA provided that preventive care and birth control for women would be covered by insurance companies, with no co-pay (Guttmacher Institute, 2014a; NARAL Pro-Choice America, 2014; Planned Parenthood, 2014). However, recent court cases have challenged the universality of insured people obtaining free or no-co-pay birth control, usually on religious grounds or through other loopholes (Amiri, 2020; NARAL Pro-Choice America, 2014; Planned Parenthood, 2014). This is in direct violation of the Convention on the Elimination of All Forms of Discrimination Against Women (Shalev, 1998; United Nations, 1979), as well as Health and Human Rights Law, which indicates that the state should provide healthcare to individuals unable to obtain or provide their own, which includes supply of contraceptives (Cook, 1995; Rodriguez, Khosla, Say, & Temmerman, 2014; World Health Organization, 2014). Furthermore, it is in conflict with the World Health Organization (WHO)’s (2014) guidance and recommendations on ensuring human rights in the provision of contraceptive information and services, which is based on the Health and Human Rights Law.
In addition to Health and Human Rights Law medical purposes, there are social and economic purposes for birth control, as cited by the Guttmacher Institute (Guttmacher Institute, 2014a) study reported as
The ability to delay and space childbearing is crucial to women’s societal and economic advancement. Women’s ability to obtain and effectively use contraceptives has a positive impact on their education and workforce participation, as well as on subsequent outcomes related to income, family stability, mental health and happiness, and the well being of their children. However, the evidence also suggests that the most disadvantaged U.S. women do not fully share in these benefits, which is why unintended pregnancy prevention efforts need to be grounded in broader antipoverty and social justice efforts. (The Broad Benefits of Contraceptive Use, third bullet)
As stated above by Guttmacher, minorities, homeless, adolescents, people in lower socioeconomic groups, immigrants, and young adults who are still on their parents’ insurance are most at risk for unintended pregnancies (Coller, Chao, Lu, & Strobino, 2014; Estrin Gilman, 2014; Frost et al., 2016; Guttmacher Institute, 2014a, 2014c; Kennedy, 2014; Kortsmit, Jatlaoui, Mandel, & et al.; Rodriguez et al., 2014; World Health Organization, 2014). Cost is one of the largest barriers to birth control of any form (Guttmacher Institute, 2014a; Pazol, 2011; Planned Parenthood, 2014; World Health Organization, 2014). Frost et al. (2016) reported that of the 21 million women in need of publicly funded services in 2016, approximately 10.1 million were non-Hispanic white, 3.7 million were non-Hispanic black and 5.1 million were Hispanic. (The remaining 1.8 million women were of other or multiple races and ethnicities). One solution to this issue would be the expansion of birth control pills to over-the-counter, without age restrictions, which is an issue that has been up for discussion in the past couple of years (Grindlay, Foster, & Grossman, 2014; Gynecologists, 2019; Richters, 2014).
It is important to note that birth control is not only important to women for family planning purposes, but also for controlling menstrual pain and irregularity, acne, and endometriosis (Estrin Gilman, 2014; Guttmacher Institute, 2014a). Guttmacher (2014a) reports that 86% of oral contraceptive users report pregnancy prevention as the purpose; however, 58% of this same population also cites noncontraceptive (such as those listed above) purposes for taking the pill. Many women who have never had sex take the pill for these noncontraceptive purposes (see Figure 2) (Guttmacher Institute, 2014a).
Note. This figure is reprinted from the Guttmacher Institute (2014a).
Aside from the medical considerations surrounding both prevention and termination of pregnancy, the right to choose whether to have a family and how large that family should be is a basic human right that affects every area of a female’s life (Estrin Gilman, 2014; Manian, 2014; World Health Organization, 2014). Issues such as rape and coercive sexual relations (such as interfering with birth control by a male partner) may also lead to unwanted pregnancies, which cannot necessarily be avoided by birth control (Estrin Gilman, 2014; Rodriguez et al., 2014; World Health Organization, 2014; Ziegler, 2014a). Women have a right to the pursuit of life, liberty, and happiness, according to the US Constitution, the United Nations, and the World Health Organization (Cornell University Law School, 2014; United Nations, 1948, 1979; World Health Organization, 2014).
Abortion is not a popular dinner party conversation in “polite” company, but it is an important topic for protecting women’s human and constitutional rights. Avoidance of abortion, by improving the knowledge base of the US population about contraceptive methods, healthy prenatal care, and protecting women from domestic violence as well as sex in general would be a good start (Center for Reproductive Rights, 2014; World Health Organization, 2014). Increasing availability by reducing or eliminating costs, as well as providing over-the-counter solutions would also reduce both unintended pregnancies and abortions (Grindlay et al., 2014; Richters, 2014).
Discussing the importance of abortion as a safe and legal option in the event of an unwanted pregnancy, or a pregnancy that endangers the life of a woman is necessary to help people understand that this issue goes beyond politics or what people “want” to do. Most people do not want an abortion; common reasons cited include that the woman did not want to be pregnant in the first place, did not feel that she was prepared for the responsibilities of parenthood, cannot afford a child, were having difficulties with a significant other, are (or would be) a single parent, or cannot successfully carry a child to term (Guttmacher Institute, 2014b). It is an imposition of values and a disregard for women’s personal and private human rights to restrict choices about family planning.
It is imperative for American citizens to act against the harmful and unconstitutional human rights violations that are being exacted upon them on a state level in the US. Existing anti-abortion and contraceptive laws not only are in violation of human rights laws, but they also jeopardize the health of women (Manian, 2014; Planned Parenthood, 2014; World Health Organization, 2014). As Manian (2014) states, “any pregnant woman is a potential abortion patient. Limits on access to abortion care place pregnant women’s health and personal decision-making at risk regardless of whether they are actively seeking abortion (p. 1335).”
Supporting organizations such as the Center for Reproductive Rights, ACLU and Planned Parenthood, who are fighting for the reproductive rights of women is one step that citizens can take to join the movement to restore abortion and contraceptive rights in America. The Center for Reproductive Rights has provided a toolkit to help promote women’s human rights, while also providing guidance for interpreting right to life laws (Center for Reproductive Rights, 2014). Another step, perhaps using the toolkit provided by the Center for Reproductive Rights, is to let our elected officials know about our rights. It is likely that some legislators are unaware of the international treaties, and they need to be educated.
Challenges can also be made through the American court system, since many of the anti-abortion laws are unconstitutional. It would take time and money to go the court route, but for the women, children, and families who are put at risk by the inability to exercise their rights to family planning, this is a worthy crusade.
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