In a move that should be a blow to the pro-life movement, President Donald Trump’s nominee to the Supreme Court replacing the late Ruth Bader Ginsburg, Amy Coney Barrett, is almost certain to be responsible for a large spike in abortion rates.
The young jurist has just three years of experience on the bench since she was appointed a circuit judge on the U.S. Court of Appeals for the Seventh Circuit by Trump in 2017, but she has certainly made her voice clear on a number of topics. One of those is her antipathy of the Affordable Care Act (ACA), also known as Obamacare. She is a vocal critic of the law, and particularly of Chief Justice John Roberts’ vote in the 2012 case National Federation of Independent Business v. Sebelius which affirmed the constitutionality of the ACA.
She also opposed the law’s mechanism for providing birth control to employees of religious organizations. She is virtually guaranteed to rule against the ACA when oral arguments for California v. Texas begin on November 10. A decision against the law could strike down any number of healthcare norms that it ushered in, from mandating the coverage of pre-existing conditions to expanded Medicaid coverage to the entire thing.
Should that occur, the number of abortions in America will skyrocket, returning to the pre-ACA levels. The number of legal abortions in America had already been falling from a peak of 1,429,247 per year reported to the Centers for Disease Control in 1990. This is likely due to the wave of new and effective birth control methods that came into use like the depo shot, birth control rings, contraceptive patches, Nexplanon, and Plan B. The rate really began to plummet following the passage of the ACA in 2010, dropping to an all-time low of 623,471 per year in 2016 according to the CDC, less than half the amount of abortions 30 years ago.
Dr. Joelle Abramowitz of the University of Michigan puts much of this drop firmly at the feet of the ACA, particularly its provision that allows children to remain on their parents’ insurance plans until the age of 26. “The findings suggest that women can better optimize their ability to plan families when they have access to insurance coverage,” said Abramowitz in her study of 3 million households. Her research found that the extended child coverage alone was responsible for a 9 to 14 percent drop in abortion rates. That drop would reverse if this provision was struck down, leading to a climb in abortion rates among young people.
The Guttmacher Institute also credits much of the reduction of abortion rates to the ACA. According to their research, by 2014 the law had helped 87 percent of insured women get hormonal intrauterine devices (IUD) without out of pocket expenses, decreased the number of women living below the poverty line without insurance by 20 percent, and enabled as much as 67 percent of women to pay nothing at all for birth control. Better access to birth control, especially at affordable costs through expanded insurance, brings down abortion rates. Barrett’s presumed vote against the ACA, should she be confirmed, would eliminate the gains of the last ten years.
Many supporters of Barrett’s nomination also point out that she is likely to be a certain yes vote on any law that restricts or prohibits legal abortion set up in the 1973 landmark case Roe v. Wade. In a 2013 Texas Law Review article, Barret said, “If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that (precedent) can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging. Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.” With abortion access increasingly under fire in various states, it’s likely that a case with major constitutional impact on the right will land before the Supreme Court soon. Wouldn’t outlawing abortion undo the spike in abortion rates destroying the ACA would bring?
Not really. First, Roe v. Wade is much more likely to die from a thousand cuts than it is to be fully overturned. Indeed, many activists credit the fall in abortion rates not to increased contraceptive access but to the constant barrage of restrictive laws that have been put in place by state legislatures over the past decade. This is a dubious claim, as the reduction also appears in states where such laws were not passed.
It’s more likely that restrictions are merely delaying abortion rather than preventing it. Dr. Daniel Grossman, an obstetrician at UC San Francisco and director of the research group Advancing New Standards in Reproductive Health, has looked in Texas in particular and noticed such as trend. His research shows that while first trimester abortion rates fell following the passage of H.B. 2 in 2013, they rose in the second trimester. This suggests that the pregnant were forced to wait for procedures that were riskier and more expensive rather than forego the abortion entirely.
Even if abortion were made fully illegal in the United States, it’s likely that it would not reduce rates and may actually increase them. Worldwide analysis has consistently shown that restrictive abortion laws are not associated with lower rates. All they do is drive the industry for providing abortions underground, which leads to unsafe conditions and increased fatalities for people seeking the procedure. Instead of preserving fetuses, prohibitions often make it so that abortions also claim the lives of the pregnant as well in horrific ways.
The addition of another Supreme Court judge willing to strike down the ACA and further restrict access to family planning is just asking for abortion rates to climb. Someone who truly wishes to see abortions rates continue to fall because of evidence-based methods cannot in good conscience support Barrett’s seat on the bench. All she will do is wage a punitive war on the poor when it comes to reproductive rights, making it so that the most vulnerable populations will be forced to turn to risky avenues of care in the name of their constitutional freedom. If the unborn are truly people to be saved and not merely emotional props for an ongoing culture war, then she must not ascend to the high court.
On the other hand, if the desired effect is simply to expand the class of people who can be righteously tortured by society for the crime of not having enough resources to raise a family or a safe place to do so, then she is perfect.
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