Morality Politics. Abortion Laws in Idaho and Nevada

Seminar Paper 2014 18 Pages

Politics - International Politics - Topic: Public International Law and Human Rights



Abortion – laws and numbers on abortion in the United States



Abortion – laws and numbers on abortion in the United States

Unwanted pregnancy has always been a physical as well as psychological challenge for women. Historical evidences teach us that even in ancient times, the matter of abortion has already been connected to individual social, religious, and political preconditions. The Bible, the Codex Hammurapi, or later on the Constitutio Criminalis Carolina set a moral and judicial set of values with regard to abortion.

Delicate issues such as abortion are “deeply rooted in central moral and religious values and reinforced by social identities and are used by political elites to mobilize support” (Killian & Wilcox, 2008, p. 561). The United States Centers for Disease Control and Prevention (CDC) defines a legal abortion as an “intervention performed by a licensed clinician (e.g., a physician, nurse-midwife, nurse practitioner, or physician assistant) that is intended to terminate an ongoing pregnancy”1 resulting in the death of the unborn child.

In the United States, views concerning the morality of abortion have undergone substantial change over time. The legal regulations changed dramatically with the 1973 Roe v. Wade decision. The Supreme Court ruled that women, in consultation with their physician, have a constitutionally protected right to have an abortion in the early stages of pregnancy free from government interference.2 Hitherto, each state had its own abortion regulations and requirements for justifying abortion that were henceforth eliminated (Steward & Darney, 2003, p. 39). The Supreme Court defined the early stage of pregnancy as the state of the unborn before viability. Hence, the federal states’ right to make their own laws was respected, as states could regulate medical treatment and therapy.3 In the following, with Webster v. Reproductive Health Services (1989) the Supreme Court reversed its previous trend and upheld numerous state abortion restrictions (Meier et al., 1996, p. 307). Even more, in 1992, the Supreme Court reaffirmed the right to abortion in Planned Parenthood v. Casey, but weakened the legal protections previously afforded women and physicians by giving states the right to enact individual restrictions that do not create an undue burden for women in quest of abortion.4 By that time, with abortion having been legal for two decades, the American people had become more educated and more secular, and other sociodemographic trends were consistent with increasing desire for fertility control and abortion has been introduced into the public agenda for reform (Strickler & Danigelis, 2002, p. 188; Scott, 1998, p. 177).

Today, “abortion is one of the most common medical procedures undergone by women aged 15-44 in the United States, partly because of the high level of unintended pregnancy” (Jones et al., 2005, p. 6). Approximately one of every four pregnancies ends in abortion in the U.S. (Meier et al., 1996, p. 307). Over the years, the total number of abortions in the U.S. “declined from 1.61 million ( the all-time high) in 1990 to 1.31 million in 2000. Similarly, the abortion rate declined from 27 per 1,000 women aged 15-44 in 1990 to 21 per 1,000 in 2000” (ibid.). In 2010, a total of 765,651 abortions were reported to CDC.5 In general, more densely populated areas have higher abortion rates than less populated areas. As for this paper, it is interesting to keep in mind that Nevada ranks among the states that have 27 or more abortions per 1000 women, whilst Idaho can be found among those with less than 7 abortions per 1000 women (Jones et al., 2005, p. 9).

There are different ways to end a pregnancy as well as different providers. Jones, Zolna, Henshaw, and Finer (2008) distinguish between four major types of providers: hospitals, abortion clinics, other (non specialized) clinics and physicians' offices.6 In 2005, two thirds of all abortions were performed in one of the 381 specialized abortion clinics (ibid., p. 12). Depending on the provider, charges vary widely amongst them, primarily depending on the gestation. As abortion procedures at later gestations are more complex, they take longer and require special medical skills; hence they are more expensive than abortions at an early stage. (ibid., p. 14). One way to end a pregnancy is an operation, another one, which is principally used at early gestation, is medical abortion through mifepristone or methotrexate.

Research shows that women seeking for abortion do not decide spontaneously, but have assessed their individual situation with careful thought (Steward & Darney, 2003, p. 38). This contradicts the public perception, “voiced by politicians and laypeople across the ideological spectrum, that women who choose abortion for reasons other than rape, incest and life endangerment do so for ‘convenience’” (Finer et al., 2005, p. 117). Qualitative research shows that women, and couples, are concerned for their responsibility to other individuals as a reason in their choice to have an abortion.

In this paper, I will present the development of jurisdiction regarding abortion across the U.S. after Roe v. Wade briefly in a first step. Subsequently, I will have a closer look at two rather similar U.S. states, Idaho and Nevada. In both states, abortion was illegal until the Roe v. Wade decision. Apart from some general information on the state, I will depict the differences in respective laws and restrictions on abortion. Moreover, I will outline major actors who play an important role. Furthermore, I will show consequences of policies on abortion implemented by the individual states, again, in particular by Idaho and Nevada and illustrate prospects for the policy area of abortion in the future. Eventually, I will develop recommendations for the future with regard to abortion laws and evaluate them.

Firstly, one might have a look at the question, how states handle the policy problem of abortion. The Roe v. Wade decision was a groundbreaking decision that, on the one hand, limited states’ rights to abolish abortion completely, but on the other hand it provided them with the possibility to sustainably reshape their laws on abortion with regard to restrictions for women as well as for abortion providers. State laws can create a variety of possible barriers, both tangible and intangible. Having an abortion in the U.S. is safe due to rigorous standards providers have to follow. In 1996, the National Abortion Federation (NAF) published its Clinical Policy Guidelines, thus providing “a basis for ongoing quality assurance and include standards on a wide range of topics, such as infection prevention; use of antibiotics, analgesia and sedation; and treatment of complications” (Gold & Nash, 2013, p. 8). Nowadays, approximately 95% of women seeking for abortions have them “in clinics or in private doctors' offices where costs can be kept low without increasing health risks” (Mueller & Dudley, 2003). With abortion being a national issue, there is “strong support for some limitations on access to abortion” (Cook et al., 1993, p. 779) throughout the states. However, one cannot say that they intend to impose greater restrictions on access to legal abortion.

More than half of the states today have Targeted Regulation of Abortion Provider (TRAP) laws. These laws create burdensome licensing requirements providers have to meet. If they fail to do so, clinics will be shut down (Gold & Nash, 2013, p. 7). TRAP laws are also one of the reasons, why 88% of all U.S. counties do not have an identifiable abortion provider (Mueller & Dudley, 2003), as traveling distance to a licensed abortion provider is, apart from the financial aspect, one of the major factors hindering access to abortion services (Henshaw, 1995, p. 54) for women who want and have to right to have a legal and safe abortion. Moreover, TRAP laws define the stage of gestation providers are licensed to perform an abortion. As abortions in an advanced stage of pregnancy are more complex and risky, “not all providers choose to perform these more difficult procedures (ibid., p. 56). Due to this a woman seeking a second-trimester pregnancy termination that does not qualify for an abortion in a licensed clinic nearby will have to face additional obstacles such as travel distance, more expenses, and a higher risk. These are the most obvious tangible barriers.

In addition, states provide information on abortion in a different way regarding accuracy, counseling, and legal advice. This is one example of intangible barriers women, who want to have an abortion, have to cope with. Other examples are information “where and how to obtain abortion care, misinformation about abortion, intimidation by protesters, state-required waiting periods and man-dated counseling topics that may not be relevant to a woman's personal situation” (Henshaw/Finer, 2003, p. 16) as well as opposing attitudes in the social environment. Harassment of women as well as providers by anti-abortion activists has taken utterly devastating forms in recent years, including demonstrations, bomb threats, or even murders (Henshaw, 1995, p. 58f.). As women feel intimidated and threatened by the number and the appearance of protesters, this intangible barrier affects the ability of providers to offer services, too.

The American public holds an “ambivalent and collectively moderate position on abortion” (Killian & Wilcox, 2008, p. 562). One can separate between people who support the accessibility of abortions (pro-choice) and those who regard abortion as illegal (pro-life). On the state level, abortion restrictions have made abortion harder to access and harder to meet the expense of making it just as unapproachable for many women as it would be if it were complete illegal in recent years (Marcotte, 2011),. Roe v. Wade made abortion legal throughout the nation; however, the states individually define the details of gestation, costs, providers, and further requirements.

Idaho will be the first state I will analyze in the matter of abortion laws. Despite the constitutional right to abortion, just in 2013, a federal judge has

“struck down an Idaho law prohibiting abortions after 20 weeks, ruling that the so-called fetal pain law violates U.S. Supreme Court prohibitions against unduly impeding a woman’s ability to seek an abortion before her fetus is able to live outside the womb” (Murphy, 2013).

The law was modeled only "to narrow the universe of previously allowable pre-viability abortions” (ibid.) for women in Idaho. Both, Senate and House are anti-choice7 and their legislation has already produced a remarkable decline in abortion providers; whilst there were seven of them in 2005, three of them had to close by 2011 (Marcotte, 2011). This leaves 93% of the counties in the state without an abortion provider. Due to its comparably strict abortion laws, the public interest law firm and advocacy group Americans United for Life (AUL) ranks Idaho on place 22.8

Due to its more liberal laws, Nevada is being ranked on place 41.9 In 1990, Nevada enacted its Freedom of Choice Act. This provides women with the right to have a legal abortion within 24 weeks of pregnancy, even if Roe v. Wade was overturned some day by the Supreme Court.10

In order to show the specific differences between Idaho and Nevada, the Table 1 will be used. The information is retrieved from the Guttmacher Institute’s State Fact Sheets.11 This short table already reveals some of the similarities and differences of the two states. All numbers and percentages are based on the numbers shown in Table 1 as well as individual calculations. Nevada has 169% of the population of Idaho. The percentage of women of reproductive age getting pregnant, however, does not differ significantly (Idaho: 9.28%, Nevada: 9.98%), so every tenth woman was expecting in 2011. An enormous difference can be found in the percentage of pregnancies that were ended by abortion, where there almost four times more abortions were recorded in Nevada than there were in Idaho. There has been a decline in abortions overall in both states compared to the numbers of 2008. Whilst, in theory, there is one abortion provider per 77.080 women of reproductive age in Idaho, there is one per 39.221 women in Nevada. This does not take into consideration the location of those providers, but the sheer numbers show that the availability of abortion providers seems fairly more present in Nevada. Generally, one can assume that those providers can be found in more densely populated areas (towns/cities). The percentage of counties in Idaho that do not have an abortion clinic is significantly higher which might be related to the even more rural character of the state. More than two thirds of the respective women of Idaho live in such counties, whereas in Nevada, only 10% find themselves in the same situation. Regarding the policy makers, both states are governed by Republican governors. Another similarity that is evident is the Christian majority in both states. 79% (Idaho) and 64% (Nevada) respectively of the population are member of a Christian church (Catholic and Protestant). Nonetheless, the fact that almost a quarter of the population in Idaho (compared to only 11% in Nevada) consider themselves as Mormons might be a reason why abortion rates in the Gem State are significantly lower. The attitudes of religious groups will also be discussed in the following.

Table 2 gives a brief overview of abortion laws in the two states. Again, numbers and specific details are retrieved from that table. Both, Idaho and Nevada belong to majority of 39 states that require an abortion to be performed by a licensed physician. This law serves to protect the health of the women concerned and requires special medical training of the physicians. Whilst Idaho refers to a specified point (viability of the fetus) in the pregnancy, Nevada chose a specific date (24 weeks) when an abortion is to be performed in a hospital. Technically, Idaho allows late-term abortions, so in the third trimester. However, a second physician must participate in that case. Here, on can think of a life or health endangerment of the mother-to-be because of the pregnancy. That is also the only reason why abortions can be performed after viability of the fetus in Idaho, whereas Nevada refers to the 24-week term again. Partial-birth abortions are enjoined in both states. A partial-birth abortion is an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. With regard to the public founding of abortion, both states prohibit the use of state funds unless the woman’s life is in danger or the pregnancy is the result of rape or incest. In addition to that, Idaho also restricts coverage of abortion in private insurance plans. Moreover, Idaho requires a 24-hours waiting period between the time she receives counseling and the actual abortion is performed and it also requires the consent of both parents if a minor decides to have an abortion whilst the law in Nevada is permanently enjoined.


1 http://www.cdc.gov/reproductivehealth/data_stats/Abortion.htm

2 http://www.law.cornell.edu/supremecourt/text/410/113

3 http://www.cdl-online.de/pressemitteilungenarchiv-abtreibung/n/7244-80-neue-gesetze-aufwind-fuer-abtreibungsgegner-in-den-usa.

4 http://www.law.cornell.edu/supremecourt/text/505/833

5 http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm?s_cid=ss6208a1_w

6 Abortion clinics are nonhospital facilities where half or more of patient visits are for abortion services; other clinics are sites where fewer than half of patient visits are for abortion services, including physi- cians' offices that provide 400 or more abortions per year. Physicians' offices are facilities that perform fewer than 400 abortions per year and have names suggesting that they are physicians' private practices.

7 http://www.cbsnews.com/pictures/abortion-19-states-with-toughest-laws/9/

8 http://www.aul.org/wp-content/uploads/2014/03/2014-idaho-report-card.pdf.

9 http://www.aul.org/wp-content/uploads/2014/03/2014-nevada-report-card.pdf.

10 http://www.aul.org/wp-content/uploads/2014/03/2014-nevada-report-card.pdf.

11 http://www.guttmacher.org/pubs/sfaa/pdf/idaho.pdf; http://www.guttmacher.org/pubs/sfaa/pdf/nevada.pdf


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Title: Morality Politics. Abortion Laws in Idaho and Nevada