In Trump’s America, abortion is as contentious as ever

Holding banners reading “choose adoption, choose life” and “I am the Pro-Life generation”, tens of thousands of people recently descended on the National Mall in Washington for the annual March for Life demonstration.

The protest marks the anniversary of the Supreme Court decision of January 1973 that legalised abortion in the US.

A day later, on January 20th, protesters again flooded into Washington. This time it was for the Women’s March, a political movement that emerged after the election of Donald Trump last year.

Though not mutually exclusive – many opponents of abortion also oppose Donald Trump – the Women’s March is politically aligned with the pro-choice movement, with the Planned Parenthood group its largest sponsor.

Voters need to be convinced on abortion change, says Doherty

---

Jim Daly will support repeal of the Eighth Amendment

---

Anti-abortion group paid for Mattie McGrath to visit US

---

The two demonstrations, less than 24 hours apart, capture the deep divisions that underpin America’s attitude to abortion.

Abortion may have been legalised through the landmark Roe v Wade judgment in 1973, which legalised terminations on the grounds that women's right to privacy as granted by the 14th amendment extended to medical decisions including abortions.

However, the issue is far from settled.

“Abortion remains a live political issue in the United States,” says Suzanne Goldberg, clinical professor of law at Columbia Law School and director of the Centre for Gender and Sexuality Law.

“Even before the election of the current administration, it has long been the subject of intense debate, with groups seeking to impose restrictions on abortion access, since the Supreme Court judgment was handed down.”

The latest poll by Pew Research shows that most Americans – 57 per cent – favour abortion in most or all cases. But a sizeable minority – 40 per cent – believe it should be illegal in most or all cases. But, unpacking these numbers further, it becomes clear that more people hold a more nuanced view, with only 25 per cent believing it should be legal in all cases, while 16 per cent believe it should be illegal in all cases.

Closely aligned

Unsurprisingly, views are closely aligned with political affiliation, with about two-thirds of Republicans contending that abortion should be illegal and 75 per cent of Democrats holding the opposite view.

In terms of the number of abortions carried out each year, the CDC – Centres for Disease Control and Prevention, a government agency – issues an abortion Surveillance Report, though states are not obliged to submit data.

Figures from 2014 shows that close to 653,000 abortions were reported that year, equating to a ratio of 186 abortions per 1,000 live births. The Guttmacher Institute, a body that supports abortion, puts it at 926,200 that year based on a survey of abortion providers. It estimates that 19 per cent of pregnancies that year ended in abortion.

What all data shows, however, is that the number of abortions carried out has been falling in the US since it peaked in the early 1980s.

The debate over abortion has intensified since Trump’s election. During the campaign, he pledged to overturn Roe v Wade.

Anecdotally, it appears his stance on abortion was one of the reasons evangelical Christians backed him as a candidate. While many may have been uncomfortable with the moral position of the thrice-married billionaire, he was seen as a far better bet than Hillary Clinton at implementing real change on the abortion laws. Many chose to overlook his apparent U-turn on the issue – as recently as 1999 he described himself as “very pro-choice”.

For those who feared that the Trump administration could seek to curtail abortion rights, his presidency has given cause for concern. Since his election he has followed through on many of his promises and pursued the pro-life agenda of many of those around him, such as vice-president Mike Pence and Republican establishment figures like Paul Ryan.

In January, Trump became the first president to address the March for Life, delivering a speech via videolink from the Rose Garden in the White House.

“Under my administration, we will always defend the very first right in the Declaration of Independence, and that is the right to life,” he told the campaigners.

The president declared January 22nd “National Sanctity of Human Life Day”, while vice-president Pence praised his boss as “the most pro-life president in American history”.

Rolling back Obama-era law

The Trump administration and the Republican-controlled Congress have been pushing through measures to limit abortions. This includes rolling back an Obama-era law that prohibited states from defunding abortion providers, and reinstating a rule prohibiting nonprofit organisations that receive US foreign aid from carrying out or promoting abortions.

But other efforts at a federal level have run into difficulty – for example a ban on abortion after 20 weeks was passed in the House of Representatives but looks set to fail in the Senate.

It is, however, at state level that the real efforts to change the US abortion regime are happening.

Clare Huntington, professor of Law at Fordham University, explains: “The federalist system of government in the United States means that the federal government only has limited powers under the constitution, while states retain considerable power. This is the case with abortion for example, where the day-to-day regulation of abortion and abortion clinics happens at a state level.”

While the federal government still plays a role in some important ways, she says, for example through the regulation of the medical abortion pill, or the allocation of money for abortions through the medicare healthcare programme for low-income people, most abortion regulation is managed at state-level.

For this reason, individual states have been the main battleground for abortion legislation in the US for decades.

Elizabeth Nash, of the Guttmacher Institute, says changes to abortion regulation at state level have been the biggest challenge to American women’s right to choose whether to proceed with a pregnancy as enshrined in the Supreme Court judgment.

“From 1973 to the end of December, 1,193 abortion restrictions were enacted in states across the country,” she says. “Not all went into effect but the vast majority did. We see 29 states as being hostile or extremely hostile to abortion rights. 58 per cent of women of reproductive age live in those states.”

These restrictions range from laws requiring waiting periods before women can have an abortion, demanding the involvement of a second physician, or insisting on mandatory counselling sessions – all barriers to abortion that pro-choice campaigners argue restricts the constitutional right to abortion.

Travel for hours

In Missouri, for example, there has long been just one abortion clinic – the Planned Parenthood-run facility in St Louis – with the result that women have to travel for hours, or into neighbouring states, to secure abortions. However, the number of clinics is set to increase following a district court ruling which found that women’s constitutional right to abortion was being restricted, despite Missouri’s governor Eric Greitens declaring his intention to fight “for the lives of the innocent unborn” and attempts to pass new abortion restrictions.

Many cases have reached the Supreme Court.

In a landmark case in 2016, the Supreme Court struck down a Texan law on abortion which it ruled would have placed an “undue burden” on abortion access. In Whole Women’s Health v Hellerstedt, the court ruled by a 5-3 majority that state laws obliging abortion clinics to have doctors with hospital-admitting privileges, and that those clinics should meet the standards of ambulatory surgical centres, were placing an undue burden on women’s right to an abortion.

Late last year a federal court blocked another law in Texas which would have restricted second trimester abortions in the state. The ruling is likely to be appealed and could go to the Supreme Court.

Another case likely to come before the Supreme Court this year relates to California. Two years ago a new law went into effect obliging crisis pregnancy clinics in the state to post a sign saying the state of California subsidises family planning services including contraception and abortion and including the phone number of the local social services office.

The law was introduced after the Californian state legislature found the 200 or so clinics in the state pose as full-service women’s health clinics but in fact discourage women from seeking abortions.

First major case

The National Institute of Family and Life Advocates (NIFLA) sued and the case is likely to be heard this year. Significantly, it will be the first major abortion case to come before Neil Gorsuch, the Supreme Court judge appointed by Trump last year.

Whether the Trump administration can push through any further substantive changes that can erode women’s constitutional right to an abortion is unclear, but attempts to restrict abortion access are likely to continue at a state level.

This is one reason why pro-choice Democrats are eyeing state legislature and gubernatorial elections this November, amid concern that Republican wins at state-level could further undermine abortion rights.

Trump’s lasting legacy on abortion access may be his appointment of Gorsuch to the Supreme Court, as well as his appointment of many conservative judges to federal and district judges over the past year. The age profile of the liberal members of the Supreme Court means it may also fall to Trump to appoint at least one other justice before the end of his presidency.

Cementing the conservative hue of the US Supreme Court could be Trump’s parting gift to his Republican supporters and could have long-term implications for abortion laws in the US.