Privacy, Choice and Discrimination

Privacy
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Close to the anniversary of the Roe v Wade decision, January 22, 1973, there were a lot of articles published on how this decision changed women’s lives. It definitely changed lives and saved many lives that might have been lost in a desperate search to terminate an unwanted pregnancy.
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The opinion of the court Justice Blackmun delivered addressed the nature of the abortion controversy.
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  • We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.
  • . . .
  • Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.
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The opinion is based upon the woman’s right to privacy in a decision to terminate a pregnancy.
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  • This right of privacy, . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

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The opinion allows states to restrict the choice of abortion based upon the trimester of pregnancy, but not at the risk of the mother’s life or an erosion of her right to privacy to make the decision to terminate a pregnancy.
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  • For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
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The same day Roe v Wade was decided, Doe v Bolton was decided. It broadened the guidelines for determining factors of maternal health to make a sound medical decision concerning abortion.
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This was great news! For the first trimester, women could decide privately whether to carry a pregnancy or to have an abortion. The consultation with her physician would be a private medical decision.
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The right to privacy in determining abortion decisions was placed with women.
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The different sides in the abortion controversy squared off to fight for their viewpoint over who has the right to decide bodily autonomy for women.
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Choice
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Quickly, it became apparent the right to privacy did not equate to a right to access or meaningful choice in many cases.
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There have been many articles concerning the legislative erosion of Roe v Wade during the decades after the decision. These federal and state laws restricting access to abortion began with the Hyde Amendment in 1976. This amendment prohibited federal Medicaid funds to be used to pay for abortion. The poor have less of a choice than more affluent citizens of the US.
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By the end of the year 2011, there were more limits to choice due to a sharp increase in state level bills introduced to restrict reproductive rights. There were 92 provisions enacted in 2011 to restrict access to abortion services; the most state provisions passed in one year to restrict abortion since Roe v Wade was decided.
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January 2012 has seen a flurry of state bills proposed to further curtail reproductive rights and particularly access to abortion. There have been bills to limit contraception, recognize personhood at conception, fetal heartbeat stipulations, mandatory ultrasounds, 24-hour waiting periods, counseling before abortion, and of course more TRAP laws concerning everything from distance clinics are from hospitals to fireproof doors on storage rooms.
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Privacy between a physician and patient have been overruled in many of the state bills. A prime example of that is fetal heartbeat and ultrasound bills requiring a doctor to perform an ultrasound, describe the results and play any heartbeat detected through a sound system. Then there is a 24-hour waiting period. This is done to make sure a woman understands what abortion is, as if she wouldn’t know or understand before deciding on an abortion. This is regulating the speech and medical advice of the doctor in cases of abortion. No other medical procedure a doctor performs has these type of restrictions or scripted language they must use.
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The Texas law enacted concerning ultrasounds is an example of these new restrictive laws.
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  • The Texas Medical Association and women’s rights groups oppose the law because they say the state is interfering with the doctor-patient relationship for ideological reasons and the law serves no medical purpose. Texas’ ultrasound law is being challenged in court by the Texas Medical Association 

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The Texas Fifth Circuit Chief Judge Edith Jones has ruled the doctors’ First Amendment rights are not being violated and a rehearing is being requested. Judge Jones has gone on record as disagreeing with the logic used to decide Roe v Wade.

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When regulations are based upon the personal morals of a legislator or judge instead of the constitution, we have a problem.
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If the Center for Reproductive Rights is not granted a rehearing, this may be the case to test mandated ultrasound tests before the Supreme Court.
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  • The center could also appeal Jones’ ruling to the Supreme Court and ask that the law remain on hold pending a ruling there. Nancy Northrup, the center’s president, said they are studying their options.

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The fight in Texas is important to all states because of the proliferation of bills restricting the right to access abortion; bills that add time, expense and hardship for many people. These all limit the ability to make the choice which is correct for a family.

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Kentucky has two bills pending with the stated aim of reducing abortions.
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  • Senate Bill 102 would require women seeking abortions to get “face-to-face” counseling 24 hours in advance of the procedure. Current law allows such information to be provided by telephone.
  • Senate Bill 103 would require physicians to perform an ultrasound before an abortion and attempt to show the image of the fetus to the pregnant woman although she could refuse to look at it.

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These two bills will place an undue hardship on women in rural areas of Kentucky. They are putting obstacles in the way of timely, affordable choice of abortion for many. If the Supreme Court rules in the Texas case, it will effect the enforcement of these Kentucky bills.
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We are at a crossroads in the abortion controversy. The right to have an abortion is there. The ability for states to restrict access to abortion is also there.
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A woman may choose to have an abortion in the first trimester in private consultation with her physician. States have the ability to dictate the talking points of her physician within the private consultation. The patient is under a time deadline of 13 weeks  to discover the unwanted pregnancy, make the decision to sustain or terminate the pregnancy, find a physician, arrange for time off from work, arrange for childcare, gather funds necessary, arrange for transportation and possibly overnight lodging, go through state-mandated testing and waiting periods, and have the abortion.
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These steps are magnified in difficulty in the case of health issues for those pregnancies needing to be terminated later than the first trimester.
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The choice for abortion is never an easy process. It is made harder by legislative obstacles placed in the path of patients wanting to exercise their choice.
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We need a better, more humane way to approach the abortion controversy.
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Discrimination
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In the past few months, there have been several articles I read and speeches I heard emphasizing the dangers inherent in basing abortion access upon health privacy instead of discrimination against women. With the provisions limiting access to abortion, this seems to be an approach to a better way within the abortion controversy.
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A January 22, 2012 article by Marianne Møllmann,  Amnesty International, clearly states this idea:
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  • . . . when a government unduly limits access to a medical procedure only women need, it not only infringes their privacy, it engages in blatant discrimination.

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How can we allow laws to eliminate necessary health care for just female reproductive choices? Female persons are 50.8% of the US population. How can we as a country justify closing reproductive options for all of them?

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As pro-access and reproductive justice activists, we need to work for basic human rights surrounding reproductive choices. We need to demand the right to not be discriminated against in our reproductive decisions.
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We need to move forward not backwards.
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Bloggers United for Human Rights is a community of bloggers dedicated to the principle that all human rights are inalienable. Not to be voted, or debated, or negotiated. Blog with us on 2/15 to support Women’s Reproductive Rights.

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2 thoughts on “Privacy, Choice and Discrimination

  1. Thank you for this informative post — so many are focused on the attack that resulted in the Komen issue — they don’t realize that there are 100’s of legislative attacks going on right now.

    • Gina,

      Yes, 2012 is going to be a bumpy ride for reproductive issues. We need to keep fighting for our rights.

      Thank you,
      Servalbear

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