We’ve seen how abortion opponents have come to look at the law as a means of underscoring their belief that abortion is immoral. But the law is a tool; enforced, it has practical consequences. This chapter explores those consequences, considering the question of whether and how the law affects pregnant women who are considering abortion.
To think meaningfully about the issue, it helps to see the world through the eyes of such women. We must be clear about why a woman might consider having an abortion.
The largest research study into the question of why women choose abortion—it surveyed twelve hundred abortion patients—found most women cite not one, but several reasons: 74 percent said having a child would interfere with education, work, or their ability to care for dependents; 73 percent said they could not afford a baby now.1
The women are telling us something that is hiding in plain view: motherhood is really expensive. What’s interesting about the costs of motherhood is that most of the costs actually could be reduced, if a government chose to do so. The price of being a mother is not foreordained. There is no “neutral” policy that dictates how much of the cost of mothering should fall on the individual mother. Instead, a country sets the price via a constellation of laws and policies: housing, day care, food, health care, education, and so on.
In order to understand how abortion laws work, we must also understand the impact of laws and policies that determine the costs of motherhood. You might picture a pregnant woman balanced on a scale, with abortion on one side and motherhood on the other. To understand the impact of changing the one side, you have to know what’s on the other.
I knew I wanted to understand, up close, the sorts of things that really matter to women who are struggling over whether to terminate their pregnancies. The starting place for thinking about the laws and policies that influence women facing unwanted pregnancy was to spend time with those who are trying to influence actual women. This chapter begins with an extended interview with a group of pro-life advocates who think it’s possible to sway those considering abortion. Indeed, they’ve spent the past four decades trying to do so.
After hearing their stories, the chapter considers the backdrop factors, economic and social, that might make a woman more or less inclined to carry a pregnancy to term. By examining these default norms, from child care to jobs and housing, we are able to see how the societal policies we take for granted shape the decisions of women facing unplanned pregnancy.
Then, with this background in mind, the chapter turns to an examination of the abortion laws and regulations enacted in the years since abortion became legal. Specifically, it considers the ways in which these laws and policies shift the balance, tilting women away from abortion.
In the end, we come away with a surprisingly clear, if troubling, sense of how the law can shape the decisions made by abortion-minded women.
One of the first organized responses of abortion opponents in the years following Roe was to open counseling centers that catered to women in “crisis” over an unplanned pregnancy. These centers aim to reach what they call “abortion-minded women,” offering advice and varying degrees of support in the hopes of convincing a woman to carry her pregnancy to term.
There’s a lot of controversy surrounding these centers. Abortion-rights advocates accuse them of false and misleading practices, like deliberately locating near abortion clinics or neglecting to mention that their center does not provide abortions or even abortion referrals. Pro-life advocates respond that they’re enhancing women’s choices by helping them find the support they need in order to keep their pregnancies. Even the name of these centers is controversial. Supporters call them “pregnancy care centers,” while opponents employ the term historically used in the clinics’ advertisements—“crisis pregnancy centers.”
Regardless of the controversy, these faith-based counseling centers exist in far greater numbers than abortion clinics. Every day, they see women who are struggling in response to an unplanned pregnancy. And because they’re endeavoring to persuade them not to have abortions, they know all about the things that make a woman consider having one.
Birth Choice of Oklahoma’s main office is on the far south side of Oklahoma City. The red brick building sits alone on a stretch of a busy four-lane highway. Baby shrubs mark the lot’s perimeter. With yellow Doric columns and three doorways topped with cheery porticos, it’s like a mansion crossed with a strip mall.
I couldn’t figure out which door was the entrance. The few cars in the otherwise empty lot were crowded near the smallest entrance, but there was no sign. Small piles of dirty snow flanked the sidewalk as I walked in the crisp March air. I approached the biggest door. Still no sign, but I peered through the glass window and saw a waiting room. A woman with long brown hair held her toddler in a worn armchair. She looked up, noticed my leather briefcase, my interview blouse and pearls, and glanced away as I raised my hand in a half wave.
When I had told people back home about my plan to visit a crisis pregnancy center, they’d joked about my needing a bulletproof vest. Would I pretend to be neutral, they’d wanted to know, or even pro-life?
I’d sent an e-mail to Barbara Chisko, the executive director, mentioning the names of two prominent pro-life advocates who had referred me to her: “I believe your long commitment to Birth Choice gives you a unique perspective on the law and its limitations, in terms of impacting women’s responses to unplanned pregnancy.”
Before I’d even explained my project, my background, and the questions I had, she wrote back, “Would love to meet with you.” We spoke by phone and I think I said enough about why, as a law professor from California, I needed to travel to Oklahoma to better understand pro-life culture and its connection to the law. I didn’t hide my position on legalized abortion, but later I wondered whether I’d been clear enough.
The young receptionist led me through a short hallway and across an empty dining room into a cozy pastel living room. Three women stood to greet me. I circled the group, shaking hands, smiling and saying my name, and took a seat on a soft floral sofa. A toddler with hair like corn silk sat on the floor across from me, playing with a plastic truck. The women looked at me expectantly.
“I want to thank you for being willing to meet with me,” I said, hoping I seemed comfortable and relaxed. “It’s hard to find people who will speak openly about abortion, and I come from such a blue state, if you know what I mean. I don’t know very many people who are pro-life. And I don’t know any pro-life activists.”
“Let’s begin by introducing ourselves,” suggested Chisko, in the silence that had suddenly grown loud. Sitting in an armchair to my right, she pointed with her open palm to the pretty, spry woman who sat next to me on the couch.
In her late fifties, Katie Gordy was one of four Birth Choice founders. “I’ve done debates and abortion clinic confrontations for the Right to Life,” she said. “But I hate all that. I’m a specialist in post-abortion counseling. I’ve been volunteering with Birth Choice since 1973. And I’ve been president of our board for the past fourteen years.”
Rae Merchant walked into the room as Gordy was speaking. The drive down from the north-side clinic, which she’s directed for thirty-four years, was slower than usual.
“I have eleven children,” she offered when Gordy finished. “Eight are adopted and three are my biological kids. I’ve been a foster parent to 180 newborns. It all flows together for me,” she said, lifting her hands and shrugging. “Adoption, foster care, parenting. That said, Birth Choice is my heart.”
“It’s because there’s no shaming here,” said Chisko. “No judgment. Women come in and we love on them. No shame, just love.” She laughed.
“I think people connect in their brokenness,” Gordy added quietly, looking down.
“I’m doing pregnancy tests now on women whose mothers I helped years ago,” said Merchant. “We listen with a nonjudgmental ear. We work on offsetting this quick-fix society. We help them understand that abortion won’t fix things.”
It was the first time I’d heard the term “quick-fix society,” but I didn’t need a translation. I thought about the women I’d met in the Ohio Reformatory for Women when I was studying mothers who killed their children. My coauthor and I had asked them why they hadn’t terminated their pregnancies. The chaos in their lives was profound and long-standing. They must have known a new baby would make their lives even harder.
“My family doesn’t believe in abortion. That’s murder,” many replied without irony. Indeed, most hadn’t intentionally killed their children. Instead, their babies’ deaths were almost predictable by-products of their grim circumstances.
“I know what you mean about the quick fix,” I said, and told them about the mothers I’d met in prison.
Typically when I speak about their crimes, I can sense the disgust these mothers evoke in others. Their situations may have been terrible, but their crimes seem too heinous to merit sympathy, let alone empathy.
The women all started to speak at once.
“I suspect the majority of those women may have had previous abortions,” said Chisko.
Merchant offered a different theory, saying, “I’ve observed in my work with women who abuse their children that a lot of them wanted to have kids, but then their kids failed to meet their expectations.”
From across the room, Ellen Roberts spoke for the first time. Sitting on the floor next to her small son, Roberts was at least twenty years younger than the rest of us. She tucked her chin-length chestnut hair behind an ear and said, “Working here, I’ve learned that it’s not their bad choices that have landed the women at our door, but rather God’s grace that kept me from being in their situations.”
Conversation began to flow as the personal merged with the professional. We all had stories to share.
A woman in a pink polo shirt walked into the living room, calling, “Time for lunch, ladies.”
She walked over to me. “Hi, I’m Ruth Blakely,” she said, extending a firm hand. “Another one of the four founders. Nice to meet you.”
We moved into the dining room, taking seats around the big square table. From the galley kitchen tucked behind the far wall, another woman stepped out to join us.
“This is my daughter and our accountant,” said Chisko, with a broad smile.
With Roberts’s son in his highchair, we were eight in all. Without hesitation, I bowed my Jewish head as Chisko said grace.
With the exception of Roberts and Barbara’s daughter, these women all were veterans of 1973. Each dated her entry into pro-life activism to learning, in church, that abortion had been legalized.
“I couldn’t believe that women would tear apart their own babies. Or that they could be coerced into doing so,” said Chisko. “You know, doctors have a way of telling women what they think is best. And our clients . . .”
“People judge our clients,” Merchant interrupted. “Especially those on welfare. ‘Why do these women keep having babies?’ they ask. The common denominator is the desire to be loved. Even a ‘lowlife’ wants to be loved. We all crave intimacy.”
“The four of us met at a church event,” Chisko began, sitting back in her chair. “We signed up to volunteer with the Right to Life. They suggested we put ads in the paper for ‘crisis pregnancies.’ But they left after four months, leaving us with one phone line and a folding chair.
“We offered a training session for volunteer counselors and a hundred and eighty people showed up. But only twenty stayed on as regular volunteers. We just didn’t know what we were doing. We had a burning desire to help people, to meet them where they are. I myself had just had a miscarriage. At that time, pro-life simply meant ‘don’t murder your baby.’ We felt our job wasn’t to evangelize or proselytize. Just live life as you should. Be a model. At first, we were part of ‘Birth Right,’ an international group. But by the 1980s, the organization set rigid rules: no shelters, no clinical services, just administer pregnancy tests and give out baby clothes. Just persuade the women not to abort their babies.”
“They like to shame women,” said Merchant. “In Lawton’s clinic, they have a life-size cardboard Jesus in the lobby.”
“Birth Choice’s priorities are shaped by the belief that the best place for a child is with mom,” Chisko added.2
I was beginning to understand what Roberts had meant when she’d said, earlier that morning, that there were “two kids of pro-life people. People who are pro-life and people who are antiabortion.”
“The antiabortion folks are really difficult to work with,” Roberts remarked. “They use our clients to fight their fight. But they never come to fight our fight.”
The women’s passion for supporting the poor surprised me. I thought social conservatives typically blamed the poor for not working harder to change their circumstances. It was the Democrats who supported welfare, minimum wage laws, and a bigger safety net. Yet these women, like everyone else I’d met in pro-life Oklahoman circles, were Republicans.
I didn’t really know whether they were exceptions to the norm among social conservatives, though, because I couldn’t remember the last conversation I’d had with a social conservative.
“How did Rose Home come to be?” I asked. Several of the pro-life religious and political figures I’d interviewed had mentioned Birth Choice’s shelter for pregnant women.
“It was through an adoption agency referral, back in our crisis pregnancy clinic in 1986,” said Chisko, setting her fork down. “The woman had had several prior pregnancies that ended in abortion or adoption. She’d planned to relinquish her current pregnancy, but slowly she changed her mind.”
Chisko sighed and looked at Gordy, Merchant, and Blakely, shaking her head and smiling. “She needed help parenting and she needed money. The adoption agency billed her thousands of dollars when she pulled out. Volunteers made it work. An attorney friend of ours made the bill go away. When this woman spoke at our twenty-fifth-anniversary dinner, she thanked us. ‘You taught me how to trust,’ she said.”
Chisko’s voice cracked and her eyes were wet.
Gordy continued for her, “At first, we tried to serve our clients by finding them jobs and housing. But our clients weren’t always well received.”
“There were some angel donors for Rose Home,” Chisko said, gesturing around the room, which could comfortably have held another three dining tables.
“We opened Rose Home in 1986,” she continued. “We’ve had a woman stop in at thirty-five weeks’ gestation. Terrified of the health-care system. A twelve-year-old girl in foster care was gang-raped. She was being pushed by the state to have an abortion. She didn’t want it, so I helped arrange to take her into federal jurisdiction, where a federal judge gave Birth Choice custody of her. We brought her home and eventually we helped her get money so she could be reunited with her mom and move to a safer neighborhood.”
The story rang a bell. It had gotten a lot of national press. I remember cringing at the thought of how a twelve-year-old rape victim had been manipulated into carrying to term. I didn’t share this memory with the women.
Only later did I wonder why I was so sure this twelve-year-old girl I didn’t know would have been better off having an abortion than carrying to term.
Roberts described how Rose Home chooses its residents:
We see three hundred to four hundred women a month here at Birth Choice, plus another hundred or so at the north-side clinic. We do blood workups, check blood pressure and weight. We help the women get covered by Sooner Care and make prenatal referrals to St. Anthony’s. If they’re ineligible for insurance, we provide their prenatal care.
Some of our clients are struggling with domestic violence, or they’re couch surfing or living out of a car. We screen for these issues and offer housing to those who truly have no place else to go. We can’t accept severely mentally ill clients, which is a real problem. There’s nowhere to send these women. They have to be violent before they qualify for housing in a state group home. But we can’t handle them at Rose Home.
Because many of the women are fleeing violent relationships, the shelter’s location is undisclosed. They can bring their children with them, so long as they are under age five.
The residents almost always qualify for public assistance, which helps with funding. In weekly meetings with their caseworkers, the women articulate goals and plan their futures. They receive mental health counseling, drug abuse treatment, and vocational training. They get help making court dates, as many have open cases for abuse and neglect. There are quarterly meetings and ongoing support services even after they leave Rose Home.
“How many women live in Rose Home?” I asked.
“We can house five women at a time. And up to thirteen children,” Roberts answered.
“Doesn’t it break your heart, having to turn away so many needy women?” I asked no one in particular.
“It’s cheaper to have an abortion than to have a baby,” Merchant said.
“There’s no doubt that the bottom line encourages abortion,” Chisko added. “Even though there aren’t enough young people to pay for older people. Dr. Wilke’s Handbook on Abortion spotted this issue, as did Paul Marx’s The Death Peddlers,” Chisko continued. “And it’s true. The majority of our clients need food and clothes. But they’re not at Birth Choice for resources. They come because we help them feel worthy, cared for, and trusted.”
The rhetoric was new to me. I hadn’t thought about the way the high costs of raising a child are an incentive for abortion. It’s so obviously true.
Don’t get me wrong—the long interview wasn’t entirely a “kumbaya” moment, as we say in my family. Some of the things said left me stunned in disbelief. Like when Merchant said, “So many of our ills—violence in the world, weather phenomena, Obamacare—are all tied to abortion.”
When I asked whether they would support a complete ban on abortion, telling them briefly about Beatriz’s case, Chisko answered without hesitation: “I learned early on that if a woman is healthy enough to get pregnant, she’s healthy enough to go to term.” She recalled a woman with a heart condition who’d been advised to terminate. The woman had refused, and according to Chisko, she had her baby and is alive today.
She believed that Beatriz did not need an abortion to survive. Indeed, she sees Beatriz’s survival as proof of her point.
But when it came time to say goodbye, I mostly felt awed by what I’d witnessed there. The women of Birth Choice had aligned their moral compasses with a keen eye to the needs of the most vulnerable women in society. I loved them for it.
“If the law changes,” I asked, “If Roe falls and abortion becomes illegal, will Birth Choice still be here?”
“We’ll be here no matter what,” Chisko answered. “Women are always going to get pregnant and they’re always going to struggle.”
One of the most important things I learned from the women at Birth Choice was to view the decision to keep or to end a pregnancy from the perspective of a woman struggling to decide. In order to understand the impact of abortion laws, we must first consider the backdrop against which such decisions take place. That backdrop is easiest to see when one focuses on the experience of the most vulnerable women. The women at Rose Home.
Of course, the backdrop is there for everyone, not just for poor women, and not just in the context of abortion. There are norms and policies that shape and constrain our options in life. The backdrop norms informing decisions about abortion consist of our policies regarding motherhood and parenting. We mostly regard these policies as neutral. But when we see their impact on the most vulnerable women, we understand how one’s circumstances circumscribe the “choices” one actually has.
“What makes a woman consider having an abortion?” I asked Samara Azam-Yu, executive director of Access Women’s Health Justice in Oakland, California.
“Women have been making hard choices forever,” she answered. She works with the poorest women in the state, helping them arrange travel from small towns throughout northern and central California to San Francisco in order terminate unwanted pregnancies.
There are people who spend their life savings, travel hundreds of miles to get procedures, and then don’t even have the money to get home. California has the highest poverty rate in the US. The economy crashed in 2008, and years later, the people I serve are running on fumes. Abortion is not really a “choice” for the women who call us for help. A baby will push the family deeper into poverty.
After seven years of working with women living on the thin edge of despair, Azam-Yu has almost as little patience for the rhetoric of “choice” as she does for that of “life.” The way she sees it, abortion decisions arise out of desperation.
Azam-Yu said, “There’s a Native American nurse at an abortion clinic in San Francisco who put it this way. She said, ‘If you have twins and it’s a bad year, you have to put one in the badger hole.’”
Until I met both Azam-Yu and the women at Birth Choice, I hadn’t realized the extent to which, by thinking and talking about abortion in hypothetical terms—the rape victim, the unwed teenager, the fetus with Down syndrome—we distort reality. We erase the complex network of factors underlying a woman’s decision to end her pregnancy.
A woman faces the surprise of an unplanned pregnancy as if on the tracks, with a locomotive barreling toward her. The only variation lies in how many other trains are coming at her from other directions.
Azam-Yu and the Birth Choice founders see the most vulnerable women in society, the ones who, even before they got pregnant, spent their days trying to avoid incoming trains—housing, food insecurity, abusive relationships, addiction.
Azam-Yu told the story of a client she’d recently helped:
One woman came by bus from Arcata, in the far north of the state. She found someone to watch her kids for two days. Access Women’s Health Justice paid for the six-hour bus ride to San Francisco. Found her a place to stay the night. One of our volunteers drove her to the UCSF clinic. She got there, and was meeting with the pre-abortion counselor. After around half an hour she said, “I’m so sorry. I’ve changed my mind. Now that I’ve had time to think about it . . .”
Azam-Yu’s work with Access Women’s Health Justice has one approach to helping poor women resolve unplanned pregnancies. Birth Choice has another. Their clients are one and the same, though. So many things weigh on these women as they confront their pregnancies that it’s hard to know how best to help them.
“There’s so much chaos in our clients’ lives,” Azam-Yu said, after telling me about the woman who’d changed her mind about having an abortion, “that choices aren’t real until they are actually confronted with them.”
I want us to bear this woman in mind as we consider the way laws and policies set the ground rules and expectations for motherhood. She helps make visible the ways in which our policies about motherhood set the context in which women respond to an unplanned pregnancy.
Think back to Chisko’s observation that “the bottom line encourages abortion.” She was calling attention to the costs associated with having a child. When asked their reasons for seeking abortion, women make reference to many such costs. Work, school, ability to care for others, and money—each factor is affected by policies; each reflects governmental priorities. Consider an obvious example: there is no paid maternity leave in the United States. And there’s no subsidized day care. Yet the majority of women in the country must work in order to support their households. These policies reflect a position that the costs of caring for children are a private responsibility, rather than a public obligation.
These policies seem neutral. But upon reflection, and certainly from the perspective of the most vulnerable women, we can understand these policies as reflections not only of governmental priorities, but also as factors that influence whether poor women will opt to have children.
In many countries worldwide, including most of Western Europe, governments pay families a monthly allowance for each child they are raising. Day care is affordable, as is health care. Both are government subsidized. Workers are guaranteed several months paid maternity leave. In some countries, mothers receive a year off from work, with pay, after having a baby. These policies are meant to encourage childbearing over abortion by offsetting the costs of having a child. These countries want more children.
Like Western Europe with its child allowances, the United States has a fertility policy. We know how much it costs to have a baby; we know how much it costs to raise a child. And for the most part, we refuse to subsidize that cost.
You might argue that we’re simply remaining neutral, allowing families to make their own private decisions about when and whether to have children. But what is the place from which “neutrality” is measured?
Let me make my point clear by telling you about California’s fertility policy. Like many states, until 2016, California had a “family cap” law as part of its welfare provisions.3 If you have a child within the first year after enrolling, you don’t get any additional support from the state.
Lawmakers around the country from both political parties support family caps as necessary disincentives for women who otherwise might have babies simply to increase their monthly income. Former president Ronald Regan called them “welfare queens,” and for almost forty years, the fear of lazy women having babies in order to live off the social dole has animated our collective imagination. Their choices seem like a form of reproductive blackmail.
Azam-Yu’s organization, Access Women’s Health Justice, waged a ten-year battle against California’s family caps. She recalled one of its former clients, Melissa Ortiz, who testified in a legislative hearing about the impact of the cap on her family. Ortiz was supporting four children on just $516 a month in aid:
When we first had the twins, the only person in my family getting aid was my oldest son. We didn’t have money to buy them car seats to get home [from the hospital]. . . . We didn’t have money to pay for diapers, wipes, shampoos, and toiletries. . . . I had to go to charities, wait in line, and hope that the charities had diapers that day. . . . I am constantly trying to pay just enough to not have [the utilities] shut off. . . . I am trying my best to be a great mom. I do not need to be punished for deciding to have children.4
In an era of bitter partisan animosity, family caps enjoy rare bipartisan support. In spite of the enormous wealth separating the United States from countries like El Salvador, US mothers like Ortiz have to ration their babies’ diapers in much the same way that I witnessed in El Salvador.
Having a baby in the United States is expensive. And the government is comfortable with the high price point.
“No one who’s at all savvy will say they don’t want poor women to have children, because that sounds eugenic,” Azam-Yu said. “But they will say, ‘There’s no money in the budget for that.’”
I don’t mean to suggest that only poor women struggle when confronted with an unplanned pregnancy, or that money is the only factor that shapes a woman’s response. Instead, I have described their struggles because they are so basic that they make it easy to see how policy choices (not to subsidize maternity leave, housing, day care, or even diapers) constrain American women’s mothering choices.
Once we recognize the costs of having children as constraints on motherhood, we can more readily see the context in which all women find themselves when facing an unplanned pregnancy. If we broaden the lens now to include all women, rather than only the poorest women, we can see the ways in which women who are better off have more options. Without a doubt, as we move up the socioeconomic ladder, these backdrop policies have less force. If she has a good job, a place to live, a strong relationship, or family ties, a woman has options, even if the government does not offset the costs of having a child.
A woman whose basic needs are met has time to think about her options. She can consider her best response to the train coming down the tracks. This does not mean that the train ceases to exist, though.
Abortion is not the result of a simple yes/no calculus. Rather, it’s the product of weighing competing costs. On one side of the scale are the costs of motherhood. On the other are the costs associated with abortion—costs that are largely determined by the legal regulations and restrictions on abortion.
In order to understand how the law shapes the cost of abortion, it is important to recognize the significance of both criminal laws and civil laws and regulations. The Supreme Court’s 1973 decision in Roe v. Wade barred states from making it a crime to have an abortion before viability. It left states free to regulate abortion, though, just as they would any other health procedure. And they did.
When the US Supreme Court determined that women had a constitutional right to abortion, and that states could not make abortion a crime, the Supreme Court tipped the balance away from motherhood and toward abortion. Before the decision, abortion was illegal in forty-eight states. After, it was legal in fifty. The law changed the balance; once abortion became legal, it became easier for women to choose abortion over motherhood.
Pro-life lawmakers have been working to tip the balance back ever since.
Behavioral economists talk about the complicated ways laws can influence human behavior, creating incentives or disincentives that cause humans to alter their default course of action.5 Professor Dan Kahan describes how lawmakers try to shape human behavior by drafting laws that operate as either “gentle nudges” or “hard shoves.”6
As an example, he cites the way the law responded to the alarming findings of the 1964 surgeon general’s report, which for the first time linked smoking to cancer. Rather than banning smoking, which would have generated intense conflict because so many Americans smoked cigarettes, the law proceeded with gentle nudges: first, it included warning labels on packages; then the law banned cigarette advertisements on television. Only decades later, after the norms regarding smoking had shifted, did the law employ a “hard shove” by banning smoking in public areas.7
To understand how abortion laws work, we might see them as ways of nudging or shoving a woman toward or away from abortion. The very first congressional battle over abortion after Roe was decided is a great example of how abortion laws are intended to shift the balance—to nudge the pregnant woman away from abortion and toward motherhood.
Congress passed the Hyde Amendment in 1976, prohibiting the use of federal dollars for abortions, except in cases of rape, incest, or medical necessity.8 The law was important for symbolic reasons: abortion opponents didn’t want their tax dollars to be spent on abortion. But lawmakers also saw in the law an opportunity to tip the balance away from abortion. Here’s how Representative Henry Hyde explained his law’s goals: “I certainly would like to prevent, if I could legally, anybody having an abortion: a rich woman, a middle-class woman or a poor woman. Unfortunately, the only vehicle available is the . . . Medicaid bill.”9
It worked. Researchers later demonstrated the impact of restricting federal funding. They studied abortion rates between 1974 and 1988, examining what happened when the federal government and some states banned taxpayer funding for most abortions. When states denied public funding, they saw a 5 percent decline in abortion rates.10 The impact of denying funding is particularly stark among the poorest women. The study found that, without funding, 22 percent of abortions that would otherwise have occurred did not take place. By refusing to pay for poor women’s abortions, a state can get thousands of women to have babies instead of abortions.
In the first twenty years following Roe, states with pro-life majorities explored other ways of using abortion regulations to tip the balance away from abortion. They passed laws requiring pregnant teens to obtain parental consent, and laws requiring patients to wait a day or two between requesting an abortion and actually getting one.11 Proponents saw the regulations as responsive to state goals of protecting health and life. Opponents decried the laws as obstacles to a woman’s ability to exercise her constitutional right. Legal battles ensued in almost every state as lawmakers tested the limits of their power to regulate abortion.
Eventually, the Supreme Court had to resolve the disputes by letting states know how far they could go in their attempts to nudge women away from abortion. In 1992, the Supreme Court decided Planned Parenthood v. Casey, creating the “undue burden test”:12
Unless it [imposes an undue burden] on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.13
For pro-life lawmakers, Casey’s “undue burden” test was an invitation to pass laws intended to dissuade abortion-minded women. At first, pro-life states moved slowly, with most states focusing on issues like waiting periods. Starting in 2004, the pro-life group Americans United for Life launched a model legislation project. It drafted a broad set of antiabortion laws, including provisions banning abortion after twenty weeks on the grounds that the fetus could feel pain, and restricting the settings and the providers for abortions. The group encouraged pro-life states to enact whole slates of antiabortion laws, keeping track of its successes with a national pro-life “report card” system.
Some of these model statutes are plainly unconstitutional, as they have the effect of completely curtailing abortion. One state, for instance, passed a law revoking the medical license of any doctor performing an abortion.14 But most of the laws work at the margins—nudging rather than shoving women away from abortion.
There is surprisingly little consensus about whether and how much these abortion laws and regulations matter. We simply don’t know how often laws requiring things like waiting periods or ultrasounds tip the balance, leading a woman to choose to carry to term rather than abort her pregnancy.
At the national level, there’s a bitter dispute about whether restrictive abortion laws lead to lower rates of abortion. Since 2008, abortion rates have been declining all over the country.15 The leading pro-life economist says this decline proves the laws are working to deter women from having abortions. The pro-choice economists respond that he’s wrong, because abortion is declining throughout the country, including in states without pro-life laws.16
For our purposes, though, the question is not necessarily how often or how much the laws deter abortion. What we want to know is how the law might tip the balance away from abortion.
Sociologist Sarah Roberts has undertaken a deep inquiry into how abortion restrictions affect women’s actual decisions. After Utah enacted a seventy-two-hour waiting period, one of the longest in the country, Roberts surveyed five hundred women who sought abortions in Utah. Her study found that the waiting period had an impact on women’s decisions, but in a surprisingly indirect manner:
The 72 hour waiting period and two-visit requirement did not prevent women from having abortions, but it did burden women with financial costs, logistical hassles, and extended periods of dwelling on decisions they had already made. The wait also led some women to worry that they would not be able to obtain abortion drugs, and pushed at least one beyond the clinic’s gestational limits for abortion.17
Roberts found no evidence suggesting that the three-day waiting period led women to change their minds about abortion. But it is clear that the law had an impact on the woman contemplating abortion: it increased the costs of having an abortion.
Laws restricting abortion by banning insurance coverage or requiring waiting periods don’t target any particular set of pregnant women. The laws are neutral on their face. Yet poor women disproportionately feel the impact of these laws.
Take, for example, a hypothetical low-income single mother in Wisconsin. In recent years, that state enacted a law requiring a twenty-four-hour waiting period, and another law banning the use of telemedicine by abortion providers. The state has only three abortion providers, all in Madison or Milwaukee. The abortion procedure itself costs, on average, $593. For a single mother in rural Wisconsin, though, the actual costs are much higher. To the cost of the procedure, she must add the costs triggered by the waiting period and the distance she must travel. Gas, lodging, child care, and missed work add up, so that in the end, an abortion actually costs her $1,380.18
In the end, abortion laws aim to nudge women away from abortion by raising the costs of getting one. And the women most likely to be nudged away from abortion because of the costs are those who are poor. Ironically, and to my mind most cruelly, these are the same women who were nudged toward abortion because of the high costs of motherhood.
Our policies on both ends of the scale leave poor mothers so constrained by their options that it is hard, in good faith, to see either motherhood or abortion as a “choice.”
From a distance, we can see that the abortion laws in the United States are not different in kind from those in El Salvador. El Salvador’s ban on abortion works by raising the costs and risks associated with terminating a pregnancy. Wealthier girls and women in El Salvador are better able to offset these costs; they have access to private doctors, and they can travel. They are more insulated than their poorer sisters from the hard shove of the abortion ban.
Likewise, US policies and regulations governing motherhood and abortion are simply ways of pushing a woman one way or the other as she contemplates her response to an unplanned pregnancy. There’s the dramatic push of making abortion legal (or criminal). And there are the gentle pushes offered by the Birth Choice women. No life-size cardboard Jesus to shame them. Instead, perhaps, a life rope. Health insurance, housing, help finding work, the prospect of being reunited with children lost to foster care.
The behavioral economists speak of nudges and shoves, distinguishing laws that work indirectly and gradually (the nudges) from those that directly penalize a given activity (the shoves). But when it comes to abortion, this dichotomy between nudges and shoves does not fully capture the impact of the law on pregnant women. Not all nudges are alike. Or rather, what feels to one woman like a gentle nudge is a hard shove to another.
Let’s be honest about our abortion policies. Rather than nudging a poor pregnant woman by giving her incentives to choose motherhood, contemporary US abortion laws work by constricting her options. Whether for reasons of fiscal constraint or a belief that abortion is morally abhorrent, our antiabortion laws are cheap. They show no love for the abortion-minded woman. Instead, they work to tip the scales toward childbirth by simply raising the costs of abortion.
The real challenge for abortion laws is yet to come. Pro-life lawmakers cannot be content with laws that merely nudge women toward childbirth or away from abortion. They’ve been elected on a platform that affirms that life begins at conception and regards abortion as murder.
There is a pent-up demand for the harder shove of making abortion illegal.
The final chapter of this book examines the changes that will be set in motion in the event that Roe is reversed and states are once again free to make abortion a crime.