Roe v. Wade: An unhappy 40th birthday

Tuesday marked the 40th birthday of Roe v. Wade, and on paper that should’ve been a happy occasion for women who prize their well-established constitutional right to choose abortion. A Republican chief justice wrote the landmark decision — decreeing that the right to choose was inherent in the right to privacy — and it remains the law of the land.

Sort of.

To really understand the status of Roe today, check out what’s happening in states as diverse as Michigan and Mississippi. Earlier this winter, Michigan’s Republican governor signed a new law that requires all abortion clinics to install gooseneck scrub sinks, an expensive commodity. The clinic corridors must be a minimum of six feet wide. Clinic recovery rooms must have 80 square feet of floor space for each bed. Clinics must have one bathroom for every six patients, and if that standard isn’t met, they’ll be required to build more bathrooms. All told, the clinics are very upset with these rules. They say that all these pricey renovations may force them to shut down.

Which is precisely why the rules were enacted in the first place. Abortion opponents know that Roe is likely to survive — just as it has already survived numerous challenges, just as it has been saved numerous times by high court Republican appointees — so instead they have shifted tactics. The foes have been successfully chipping away at Roe one state at a time, aiming to make it virtually impossible for women to exercise the right to which they are constitutionally entitled.

In 2011, predominantly Republican lawmakers in 24 states enacted 92 provisions that either restrict women’s access to abortion services or hamper the clinics that serve women. The Guttmacher Institute, a reproductive health research firm, says that’s a record number of restrictive provisions — triple the previous record set in 2005. It’s no accident that the old record has now been surpassed; Republicans scored major gains in the 2010 midterm elections, capturing a slew of state legislative chambers, thus providing them with fresh opportunities to impose conservative morality via government fiat. Guttmacher says that in 2012, another 43 restrictions were enacted in 19 states.

“Shut it down”

Abortion foes and their lawmaking allies say they’re merely seeking to ensure that women are being treated in a safe medical environment, but anyone with a pulse knows that claim is a crock. Federal health data conclusively shows that the risk of death from abortion is lower than the same risk from a shot of penicillin. We all know what these state restrictions are really all about — and sometimes, as in the case of Mississippi’s Republican governor, the morality cops will even admit it.

The Mississippi situation is classic. The state has one functioning clinic, which means that many of the women seeking to use it must travel hundreds of miles to reach it. And new state rules, enacted by Republican lawmakers, are designed to close it. Here’s the ultimate Catch-22: The clinic can stay in business only if its doctors can gain admitting privileges at any of the local hospitals. But the local hospitals, any of which are church-affiliated, are refusing to give the doctors admitting privileges. The clinic has also tried to advertise for any doctor who already has admitting privileges, but the Mississippi State Medical Association has refused to help the clinic advertise.

The upshot: State health officials ruled last week that the clinic has failed to comply with the new rules. Unless the clinic can win in the courts, it seems destined for shutdown.

Which brings us to Phil Bryant, the Mississippi governor. The talking point, in Mississippi as elsewhere, is that these state restrictions are necessary to protect women’s health. But Bryant got real earlier this month, while addressing a roomful of conservative pastors: “My goal, of course, is to shut it down.”

The janitor’s closet

That’s clearly the real deal, not just in Michigan and Mississippi, but in states like Virginia (home of the new transvaginal untrasound probe, and a new rule which requires clinics to mirror the architectural standards of hospitals), and South Dakota (where a woman seeking an abortion is required to wait 72 hours and visit an anti-abortion “Crisis Pregnancy Center,” typically run by conservative Christians), and Kansas (where clinics are required to provide each woman with a private dressing room and toilet; where each clinic procedure room is required to have a 50-square-foot janitor’s closet), and Ohio (which now bars state hospitals from perfoming abortions), and a few dozen more.

Women in most highly urbanized blue states need not fear this systemic assault on Roe, but what we’re witnessing is a blatant violation of a fundamental principle, equal protection of the laws. The constitutional right to a first-trimester abortion is becoming a mirage for women in red and rural states. Currently, 87 percent of America’s counties lack an abortion provider. Four states (North Dakota and Arkansas, in addition to Mississippi and South Dakota) have only one provider.

Abortion foes have been very shrewd. They can be checked and balanced only if Roe allies recover from the devastating gubernatorial and state legislative losses in 2010. It’s not enough to reiterate the spirit of Roe — that abortion should be a private choice between a woman and her doctor — when Roe itself is being systematically eroded, state by state. Constitutional principles are fine and dandy, but what matters most is how they play out in practice.

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