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Legal Commentary

: Prawfs

Federalism and Abortion

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel



Today?s Washington Post includes a depressing article   for those of us who are pro-choice.  The article documents how the abortion fight has moved to the state level, and details some of the means by which anti-abortion groups are chipping away at a woman?s right to choose.

My first job after I graduated from college was working at the National Abortion Rights Action League.  True, I was a mail clerk, but, as I checked packages to make sure that we were not receiving any bombs, and as I mailed out material supporting the right to choose, I felt like I was doing good and meaningful work.  Almost 30 years later, I can?t believe how little has changed in the culture wars over abortion, and I?m struck by how much positions have hardened.

When the Supreme Court guaranteed the right to choose in the seventies, the focus was on the changing lives of women, and the often tragic circumstances of those resorting to risky, illegal abortions.  Today, the women seeking abortion have almost disappeared from sight, replaced, when they are thought about at all, by inaccurate caricatures that overlook the fact  that poor women who lack systematic access to effective contraception are those who have the greatest need for access to abortion.   The overlooked issue in the abortion debate is its effect on poor women, who are more likely to get an abortion than are wealthier women.  As the Post article notes, poor women are disproportionately affected by the practicalities of obtaining an abortion and by legal restrictions. The Guttmacher Institute reports that the abortion rate for women whose income is lower than the federal poverty level ?is four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women).?    The higher rate is, at least partially, due to the much higher rate of unintended pregnancies among poor women. 

Even when they are able to obtain abortions, two-thirds of poor women report that they would have liked to have undergone the procedure at an earlier time.   Clearly, access to abortion is critical to the reproductive choice for poorer women.  The decrease in the number of abortions through the nineties was, perhaps surprisingly, not primarily due to legal restrictions on abortion.  Instead, the decline was based, at least in part, on states making a commitment to sex education that was not abstinence-only and on states making contraception widely available.  


            As June Carbone and I have argued, reproductive autonomy is most readily available for the affluent,  and it is increasingly beyond the reach of the most vulnerable. Family planning efforts of all kinds have been the biggest casualty of ideological politics. 

Full post as published by Prawfs on June 08, 2009 (boomark / email).

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