Delay, Delay, Delay: Restrictive Laws Force Later-Term Abortions

Many were horrified by news accounts of an 11-year-old girl in Argentina who, 23 weeks pregnant, underwent a procedure like a C-section rather than the abortion she had sought weeks earlier. The girl had been raped by the boyfriend of her grandmother, with whom the girl had been living. In language that will be hard to forget, she wanted doctors “to remove what the old man put inside me.” Lucia (a pseudonym) was placed in state care a week after her pregnancy was discovered because “self-inflicted lesions” indicated suicide attempts.

Argentina law allows abortions in the case of rape or to protect the life of a pregnant person. In the U.S., Lucia might still have been in elementary school. Her pregnancy was discovered long before fetal viability, when the fetus/baby would have a reasonable chance of surviving outside the womb. Some news reports said 16 weeks, others 19. But government-created delays caused the pregnancy to progress to the point where there were calls to “save both lives.” Doctors performed a procedure similar to a C-section, even though the infant was unlikely to survive. The baby died after 10 days in intensive care. Two children, then, were harmed by the abortion delay.

It’s easy to think that would never happen in the U.S. But which part? Certainly, such a rape can and does happen here. The Centers for Disease Control and Prevention estimates that approximately one in four girls are sexually abused before the age of 18 in the U.S.

What about the delay in the abortion? What do we think the restrictive laws passed in conservative states are about? As long as the Supreme Court upholds the right to abortion, those laws’ primary effect is to delay abortion, to force a pregnancy to term.

Some laws directly delay abortion, like mandatory counseling and waiting periods. Some are less direct, placing unnecessary and expensive regulations on clinics in an effort to close them down. Fewer clinics mean more travel distance. More travel distance means more time off from work, and more transportation and lodging costs. More financial burden means more time needed to collect the money from friends and family. Seventy-five percent of those seeking an abortion are low income; every obstacle put in their path is magnified by their limited resources.

These obstacles do not ultimately deter most abortions. They are just delayed. But delays mean a more developed fetus that starts looking more like a baby. That makes abortion morally more difficult for the pregnant person, for the providers, for everyone. It also makes the abortion riskier. According to one study, each week an abortion is delayed increases the mortality risk by 38 percent, although abortion is still safer than carrying a pregnancy to term.

In the case of Lucia, there were early reports that a C-section was performed at the behest of health authorities who wanted physicians to try to save both lives. The physicians pushed back, saying the C-section was safer for Lucia. Whatever the truth on that question, the greater truth is that it never needed to reach that point. Reaching that point caused grave harm to Lucia; she became a mother against her will as physicians cut her open to pull out the baby the old man put inside her.

How far back would we have to look for a prominent case of intentional government delay of an abortion for a minor in the U.S.? Not far at all, it turns out.

An unaccompanied minor, “Jane Doe” or “J.D.,” crossed the southern U.S. border illegally in September 2017, and while in federal detention, discovered that she was pregnant. She wanted and was clearly entitled to an abortion. Under the United States Constitution, a minor can access an abortion without parental involvement if she is mature enough to make the decision for herself. In J.D.’s case, a state court — in the conservative state of Texas, no less — determined that she was.

Yet J.D. had to wait. The Department of Health and Human Services refused to let her temporarily leave the detention facility to obtain an abortion on the baseless assertion that she needed a U.S. sponsor to do so. With the aid of the ACLU, J.D. went to court, obtaining a federal court order allowing her access to abortion care.

But now-Supreme Court Justice Brett Kavanaugh was sitting on the D.C. appellate court at the time. In a 2-to-1 opinion that never received the attention it should have during his confirmation hearings, he voted to reverse the lower court.

His decision elicited a strong rebuke from the dissenting judge. The government’s refusal to temporarily release the teen from custody in order to obtain the abortion was, according to Judge Patricia Millett Miller, “a full-on, unqualified denial of and flat prohibition on J.D.’s right to make her own reproductive choice.”

J.D. had already waited almost four weeks because of government obstruction, and if Kavanaugh’s order had prevailed, she would have had to carry the pregnancy “for multiple more weeks.” Fortunately, when the ACLU asked for a full panel review by the appellate court, they reversed.

What happened to Lucia could happen in the U.S. We have laws that work, both singularly and in the aggregate, to delay abortion. We also have officials, agencies and judges who will deliberately obstruct the abortion of a minor — or an adult — despite their clearly established right to obtain one. Ultimately, these tactics lead to later-term abortions. If abortion opponents believe that later-term abortions are reprehensible, they’ll need to stop creating delays that contribute to them.