When Judge William Conley struck down Wisconsin’s needless abortion restrictions late Friday, he included a footnote to express his alarm that the state had, at trial, compared getting an abortion to buying a luxury car.
If that sounds unbelievable, you may find the whole trial transcript surreal. The law would close clinics by requiring doctors to have admitting privileges at nearby hospitals, which they could not obtain. Planned Parenthood and the ACLU argued the law was unconstitutional because it was medically unnecessary but would make people spend more and travel farther – even out of state – for abortions.
For some, the new price tag to realize their constitutional right to an abortion would be prohibitive. But the assistant attorney general defending the statute was unimpressed by this obstacle. At trial, he asked one of the plaintiff’s witnesses, “[if] I decided I’m going to buy a Mercedes-Benz but I cannot get financing for that car and I don’t have the funds to buy it, am I prevented from buying a Mercedes-Benz?”
Thankfully, in yesterday's opinion, Conley rejected this line of reasoning entirely. “If the Assistant Attorney General who posed this question were to ask a woman facing an unwanted pregnancy whether being prevented from purchasing a Mercedes-Benz because of lack of funds is like being prevented from obtaining an abortion,” the judge wrote, “the answer would most assuredly be ‘no.’”
Conley was right to laugh the state’s argument out of his courtroom. But the state’s inelegant question reveals a deeply disturbing logic – one which undergirds the precarious state of reproductive rights in this country: We treat reproductive rights like luxury cars by reserving them for the rich. States across the country are passing laws that require thousand-dollar entry tickets to a core constitutional right, threatening our country's most vulnerable populations.
We bear witness to the assault on low-income Americans’ reproductive rights in the state laws -- like the one just struck down in Wisconsin -- which target abortion providers with needless requirements that serve only to shutter clinics and force people seeking abortions to spend more money and travel longer distances for that care. We saw the startling results of such laws when an identical Texas law took effect: The number of clinics in the sprawling state went from 40 to just eight. And the rampage on reproductive rights isn’t letting up: So far this year, state legislatures around the country have collectively introduced over 100 bills restricting abortion.
Government lawyers defending such statutes contend the laws are constitutional because abortion care is still theoretically, if not practically, available. But that’s at odds with the Supreme Court’s last major decision on the abortion right, Planned Parenthood v. Casey, which makes clear that when a law “prevent[s] a significant number” of people from obtaining an abortion, the right has been denied.
A theoretically available abortion isn't much of a help when faced with a real, unwanted pregnancy.
Our Constitution, then, is a guarantee only if you have the cash. As Judge Conley put it, “[w]hile a trip from Milwaukee to Chicago may not pose an issue for women of means (even relatively modest means), women seeking abortions nationally, particularly in Wisconsin, are poor, very poor. Nationally, 42% of women who seek abortions report being below the federal poverty line and 69% report being below 200% of the federal poverty line.”
While conservative legislators often try to justify their laws as benevolent protections for patients, the science doesn’t support their claims. And their lawyers’ glib insistence that increasingly expensive abortions will still be accessible – just like a new Mercedes – demonstrates a startling ignorance of what it’s like to be poor in America.
That’s an experience most federal judges and state legislators -- the ones making decisions that will most severely impact low-income people -- only understand in the abstract. In a 2000 case before the 4th Circuit Court of Appeals, Greenville Women's Clinic v. Bryant, a panel of judges held that the financial cost of an abortion should be considered distinct from a pregnant person’s ability to “choose,” as though the freedom to make a decision that cannot be fulfilled were any consolation for an unwanted pregnancy.
As reproductive justice advocates, led by women of color, have long argued, the right to choose is meaningless if people do not have the resources and ability to realize those choices.
The distinction that courts have sometimes drawn between cost and feasibility is only sensical if we assume that cost – either in dollars or in time – may be inconvenient but never prohibitive. And while that might be true for a federal judge or a state legislator, it isn’t for those most affected by abortion restrictions. For low-income people, particularly women and trans people of color in rural areas, cost is a dangerously real obstacle.
One judge dissented sharply from the Greenville decision. “While traveling 70 miles on secondary roads may be inconsequential to my brethren in the majority who live in the urban sprawl of Baltimore,” he wrote, “such is not to be so casually addressed and treated with cavil when considering the plight and effect on a woman residing in rural Beaufort County, South Carolina.” The judge’s point is that while his colleagues might drive a Mercedes to work, their decisions must center on those who need a lift.
Elizabeth Deutsch is a student at Yale Law School. She holds an MSc in Gender from the London School of Economics, where she was a Marshall Scholar. Last summer, Deutsch served as a legal intern at the ACLU where she worked on Planned Parenthood of Wisconsin v. Van Hollen, a lawsuit challenging Wisconsin's abortion restrictions.