Roe and us

“Do not engage with any counter-protestors; avoid using ‘Handmaid’s Tale’ imagery; avoid using coat hanger imagery.” So warned a Planned Parenthood of Western and Central New York flyer inviting abortion-rights supporters to attend a rally protesting the Supreme Court’s apparent imminent takedown of Roe v. Wade.

Like many pro-choice advocates, Planned Parenthood went on red alert with the leaked release of Supreme Court Justice Samuel Alito’s draft opinion explicating an expected vote by a majority of the court’s nine justices to strike down Roe v. Wade, the 1973 decision that made legalized abortion the law of the land. 

The court confirmed the authenticity of the draft opinion but said the text could be subject to alteration. As written, the ruling would not ban abortions but would end nationwide protection, allowing states opposed to abortion to ban or limit the procedure. 

At the Planned Parenthood rally, held Saturday at downtown Rochester’s Parcel 5, the several hundred men and women who showed up enthusiastically chanted pro-choice slogans on cue. Not a single counter-protestor appeared to be in sight.

However, says Michelle Casey, executive director for Planned Parenthood of Western and Central New York, a contingent of roughly two dozen noisy anti-abortion demonstrators that regularly appears on Saturdays at Planned Parenthood’s University Avenue Rochester clinic did show up there. 

At the anti-abortion activists’ regular Saturday protests, “people have been really aggressive in the past,” Casey says. Whether Roe v. Wade’s elimination would bring even more aggressive tactics by local abortion foes—or fuel more forceful efforts to defend abortion rights—is a great unknown.

A nation divided

For more than a half century, the abortion issue has divided the nation and at times led to acts of extreme violence. Between 1993 and 2015, seven U.S. abortion providers were murdered by anti-abortion activists. These attacks include the 1998 murder of Barnett Slepian M.D., an abortion provider who was shot to death in his suburban Buffalo home by James Kopp, who claimed he only meant to wound Slepian. Kopp is now serving a life sentence for the crime.

Many health care providers remain reluctant to spotlight the fact they offer abortion services. This was evident in the responses of representatives of area health care organizations when I contacted them to ask what changes if any New York’s 2019 passage of the Reproductive Health Act had made for area health care providers. I also wanted to learn what they might anticipate if Roe were struck down.

“They probably won’t want to talk about (it),” one representative texted. I heard nothing further from that person. 

Another representative also declined to speak but called to tell me that in the interest of its providers’ safety, the organization thinks it would be best not to call attention to the fact that it provides abortions. 

New York’s law

The Reproductive Health Act was explicitly designed to protect choice in the event of Roe v. Wade being overturned. For the first time in the state’s history, the 2019 law decriminalized abortion, putting the procedure into the realm of health care rather than criminal law.

In addition to decriminalizing abortion, the law specifically allows the procedure, expanded who can perform the procedure from beyond solely physicians, and sets limits on it. It states that abortions “may be performed by a licensed, certified, or authorized practitioner within 24 weeks from the commencement of pregnancy, or there is an absence of fetal viability, or at any time when necessary to protect a patient’s life or health.”

So far, Casey says, the act has made a positive but “small difference.” The state’s Department of Education has yet to promulgate regulations under which qualified nurse practitioners and physician assistants can perform abortions. Until it does, the providers who can do abortions still is limited to doctors. And that, says Casey, ultimately limits access to the procedure.

Currently, Planned Parenthood offers surgical abortions at clinics spread throughout its 14-county service area. The procedure is available to women up to 13 weeks and six days after the start of their last menstrual period. It also offers medication-induced abortion up to 10 weeks after the start of a woman’s last period. Past the 13-week, six-day deadline, women seeking abortions have to go to other providers such as hospitals.

Due to a shortage of providers, women seeking in-clinic abortions at some area Planned Parenthood clinics can now face up to a three-week wait.

“That’s too long,” Casey says. 

Women forced to wait that long can go past Planned Parenthood’s 13-week, six-day limit or edge uncomfortably close to the state’s 24-week cutoff. 

Beacon readers want the Supreme Court to uphold Roe v. Wade

The overwhelming majority of readers who participated in a Rochester Beacon poll want the Supreme Court to uphold Roe v. Wade. Eighty-five percent support the 1973 decision that legalized abortion nationwide, versus 13 percent who want Roe struck down.

However, a majority of readers think abortion should be legal in all cases only in the first trimester. Roughly 72 percent of survey participants think abortion should be legal in the second trimester, but a plurality (41 percent) say “some of the time.” By contrast, 76 percent say abortion should be illegal in most or all cases in the third trimester.

Nearly 260 readers participated in the survey, conducted May 11. See the results in the charts below.

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A call for stronger protections

Casey says Planned Parenthood regularly is in close touch with state officials and lawmakers, urging that current protections be strengthened and that the 2019 law’s provisions be implemented as soon as possible, and officials have been responsive. 

In the wake of the Supreme Court leak, Gov. Kathy Hochul this week announced creation of a $35 million fund to support the state’s abortion providers and provide security at sites where abortions are performed. 

The end of Roe v. Wade has been widely anticipated by both sides of the abortion debate since former President Donald Trump’s appointment of three anti-abortion Supreme Court justices: Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett. 

After confirmation of the Trump appointees switched the balance of the court from a more evenly balanced left-right orientation to a strongly right-leaning 6-3 conservative majority, several states have rushed to enact legislation to either protect abortion rights or end them. 

According to an analysis released last month and updated this month by the pro-choice nonprofit the Guttmacher Institute, in advance of any Supreme Court ruling, 10 states have so far signed 37 measures to restrict abortion, while eight states including New York have passed 14 measures to protect choice. The analysis counted 42 states with a total 546 measures to restrict abortion at various stages of their legislative processes. 

“The May release of a leaked Supreme Court draft opinion … could further bolster efforts by anti-abortion policymakers at the state level,” the Guttmacher Institute analysis predicts. 

“(States’) preemptive actions to flood statehouses with restrictive bills so far this year may accelerate in anticipation that federal protections for abortion rights will soon be gone.” 

A move to restrict abortions

The pro-choice Center for Reproductive Rights concludes that once Roe v. Wade is struck down, more than 20 states are likely to move to enact outright abortion bans. Some of those bans could attempt to reach to residents of states like New York that are moving to protect women’s right to choose abortion. 

If a flood of states opt to restrict or ban abortion, Planned Parenthood’s Casey says, states like New York that are working to protect abortion rights are likely to see a flood of women from states that have banned abortions seeking the procedure. 

Among states the Center for Reproductive Rights sees as likely to outlaw abortions if the Supreme Court strikes down Roe v. Wade is Texas, which in 2021 enacted a ban on abortions performed more than six weeks after conception. To enforce the ban, the Lone Star State added a controversial vigilante provision that turns enforcement over to citizen informers who can sue individuals they suspect of violating the six-week ban.

If enforcement were assigned to a governmental agency, the Texas law likely would not survive a constitutional challenge. In a controversial 5-4 ruling last year, the Supreme Court’s conservative majority—with the exception of Chief Justice John Roberts—declined to block the law. The ruling came on the court’s so-called shadow docket, which consists of cases in which justices rule dispensing with discussion or argument on grounds that matter in question is an emergency measure.  

Targeted regulation

Judy Hager is a Rush-Henrietta middle school teacher who describes herself as someone who is pro-choice but would probably not herself seek an abortion. 

In 2004, midway between the birth of her two sons, Hager became pregnant but learned early on that the fetus she was carrying had no heartbeat. On her doctor’s advice, she underwent dilation and curettage. That procedure, known as D&C, consists of a health care provider dilating a woman’s cervix and scraping and scooping out the contents of her uterus. It is used for first-trimester abortions as well as therapeutically to treat women who miscarry. 

“It was terrible,” Hager says. “But I had to do it. If I hadn’t, I would have become infected and would have died.”

What would be the fate of women like herself who live in states moving to ban abortions? Hager wonders.

In fact, a Texas law passed last year bans the use of abortion-inducing drugs including misoprostol and mifepristone. The two medications are the only drugs recommended by the American College of Obstetricians and Gynecologists for treating a patient after an early pregnancy loss.

Supporters of the Texas law argue that it specifically carves out exceptions for cases like Hager’s involving a miscarriage or lack of fetal heartbeat. However, a Guttmacher Institute study found that the cumulative effect of laws restricting abortions has been to drive abortion providers out of practice in states where they are enacted. The institute calls such measures TRAP laws, an acronym for targeted regulation of abortion providers. 

Texas, for example, passed laws in 2014 requiring abortion providers to have hospital admitting privileges, a requirement that many independent clinics offering abortions in the state considered unnecessary but were not able to meet. Since then, the Guttmacher Institute study notes, “The number of clinics in Texas fell sharply between 2013 and 2014 because of admitting privilege requirements. As a result, the number of Texas women whose closest abortion clinic was more than 100 miles away more than tripled in that time.”

Twenty-three states have enacted measures the Guttmacher Institute sees as TRAP laws, a separate study found.

Since the passage of Texas’ 2021 six-week ban, other states have aped the Lone Star State to pass similar laws aimed at abortion providers and women seeking abortions. An anti-abortion lawmaker in Missouri has introduced a measure that let residents of the state sue those who help a woman in Missouri to get an abortion, even if they do so in a neighboring state.

“If your neighboring state doesn’t have pro-life protections, it minimizes the ability to protect the unborn in your state,” explained the measure’s sponsor, Missouri Rep. Mary Elizabeth Coleman. 

Counter-measures

While it is now not certain how many measures like the Missouri law Coleman proposed will ultimately be enacted, New York lawmakers are seeking to counter them if any such measures should pass. 

A bill introduced by state Sen. Liz Kreuger, D-Manhattan, seeks to protect New York abortion providers by prohibiting this state’s law enforcement officers from cooperating with out-of-state investigators. Another measure Kreuger proposes would mandate equal access to reproductive medical care for all state residents.

Also on the Legislature’s docket is a bill proposed by Sen. Samra Brouk, D-Rochester, that would require all health insurance policies covering maternity care to also include coverage for reproductive care including abortion.

A measure proposed this week by New York Attorney General Letitia James and nine Assembly members and senators would provide new funding for New York abortion providers and funding to pay providers for uncompensated services. The measure would also provide support for women seeking abortions who hail from states where the procedure is banned.

Along with the Reproductive Health Act, such measures would go a long way toward protecting New York women’s access to abortion, Casey says. But an even better protection would be to write them into the state constitution.

That could not be done quickly, however. Amendments to the constitution must be passed by two successive legislative sessions, signed by the governor and then put on the ballot as a referendum. That means the earliest such an amendment could be added would be sometime in 2024.

Congressional moves

On Capitol Hill, a push by Democrats to protect abortion rights through legislation fell short on Wednesday. The measure, which would codify abortion protections nationally, was passed by the House but died in the Senate yesterday, where it received 51 votes—nine fewer than the 60 votes needed to overcome a GOP filibuster.

Meanwhile, Texas Sen. Ted Cruz and other GOP senators have begun to test the idea of enacting a nationwide ban on abortion. A federal ban would likely face considerable barriers. The GOP would almost certainly have to regain control of both houses of Congress and vote to eliminate the Senate filibuster to see one pass. If a Democrat is in the White House, congressional ban supporters would probably also have to line up enough votes to overcome a presidential veto. 

Nevertheless, says Casey, if a nationwide abortion ban were to become law, it would spell disaster for the pro-choice movement. A federal ban would trump any abortion protections that New York or any other state might enact including state constitutional provisions. 

Theoretically, the Supreme Court could overrule such a law. But currently, says Casey, she wouldn’t count on that happening. 

Will Astor is Rochester Beacon senior writer. The Beacon welcomes comments from readers who adhere to our comment policy including use of their full, real name.