On Friday, abortion rights supporters won two important legal victories. A federal judge struck down Arkansas’ 12-week abortion ban, which represented one of the most restrictive abortion laws in the nation. And a lawsuit over new clinic regulations in North Dakota was settled, ensuring the state’s only abortion clinic will remain open.
But it’s not all good news. The two cases also reveal the anti-choice community’s successful strategy to undermine Roe v. Wade bit by bit — even if it’s clear that some recent policies, like stringent bans, won’t hold up in court.
In Arkansas, U.S. District Judge Susan Webber Wright ruled that cutting off legal abortion access at just 12 weeks “impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability.” However, Webber Wright didn’t get rid of the entire state law. She left in place another provision requiring a woman seeking an abortion to undergo an ultrasound to determine whether a fetal heartbeat is present.
“While we are pleased that the court ultimately preserved women’s fundamental right to abortion, Arkansas women are fully capable of weighing their reproductive choices carefully and responsibly in consultation with their doctors — without politicians dictating what medical procedures or information they need,” Nancy Northup, the president of the Center for Reproductive Rights, noted in a statement. Along with the ACLU, Northrup’s organization filed the lawsuit in Arkansas.
Mandatory ultrasound laws are popular policies, currently in place in 23 states. The more stringent versions of these laws require doctors to offer women a chance to look at the image of their fetus and listen to the sound the fetal heartbeat. The intent behind this legislation, often couched in terms of “informed consent” or “the woman’s right to know,” is clear. Anti-choice lawmakers typically assume that if women simply have the chance to learn more about their fetus, they’ll change their mind about having an abortion. Scientific evidence has proven that this is an incredibly ineffective policy. A large study published in January found that the vast majority of women seeking abortion services have already made up their mind, and viewing an ultrasound doesn’t sway them.
Nonetheless, it’s typically hard to overturn ultrasound requirements. Thanks to Planned Parenthood v. Casey, state legislatures are now allowed to enact a whole bunch of barriers to abortion services as long as they can prove that doesn’t impose an “undue burden” on women trying to exercise their reproductive rights. In that context, it’s difficult to mount a legal challenge against informed consent requirements, and states can continue trying to emotionally manipulate the women who want to end a pregnancy.
A similar dynamic is unfolding in North Dakota, where the state’s last remaining abortion clinic is struggling to stay open. North Dakota is the only state that’s passed an abortion ban even stricter than the one in Arkansas, cutting off access to the procedure at just six weeks of pregnancy. But that law, which will almost certainly end up being permanently struck down, isn’t necessarily the real threat to abortion access in the state. The onerous requirement that abortion providers must obtain admitting privileges from local hospitals — the same restriction that’s currently forcing dozens of clinics to close in Texas — threatens to have a much more serious impact.
The Center for Reproductive Rights filed suit against the admitting privileges law, arguing that this requirement is often impossible for abortion providers to comply with. Many hospitals don’t want to enter into partnerships with abortion clinics, which ends up forcing those clinics to shut down — indeed, that’s the whole point of these restrictive laws. But last month, a North Dakota hospital granted admitting privileges to the state’s last clinic, Red River Women’s Clinic. Since there’s no reason to proceed with the legal challenge anymore, both parties agreed to a settlement.
“We are pleased that the physicians at the Red River Women’s Clinic have been able to obtain admitting privileges and reach a settlement with state officials, but the fact remains that this law’s intention was to shutter the only abortion clinic in the state,” the group’s staff attorney, Autumn Katz, said in a statement. “And we will remain vigilant in ensuring that the clinic’s doors remain open should anything change in the future.”
It’s important to remember that admitting privileges aren’t a reasonable requirement, even though North Dakota’s clinic did end up being able to get them. Many other clinics aren’t so lucky. This particular anti-choice tactic relies on construing this policy as a common-sense method to protect women’s health and ensure clinic safety. Although being granted admitting privileges is a short-term victory for Red River Women’s Clinic, it’s a long-term win for abortion opponents, who now have more ammunition to claim that every abortion clinic across the country should be able to meet this often impossible standard.
It can be difficult to understand how ultrasound procedures and admitting privileges relate to abortion access. They’re certainly less straightforward than outright bans on the procedure, and that’s why they tend to capture fewer headlines. But that’s ultimately the point. Abortion opponents are counting on the fact that these indirect attacks on reproductive rights will fall within the bounds of Planned Parenthood v. Casey, allowing them to slowly chip away at abortion access without the need to overturn Roe altogether.
For the most part, this is working out pretty well. Over the past several years, states have imposed a record-breaking number of abortion restrictions that have put the procedure increasingly out of reach for underprivileged women. There have been so many separate attacks on abortion in North Dakota, for example, that some women assume that their lawmakers have already successfully outlawed it. And although the complex restrictions that target clinics and providers are often most insidious, they tend to get the least attention. That’s why, even though reproductive rights supporters are winning most of their legal battles, they’re losing the larger war.