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An obstruction of justice

After December 19, all healthcare facilities, abortion clinics and hospitals in Texas will be required by state law to properly bury or cremate fetal remains. Despite intense debate around the new legislation since it was first proposed in early July, Republican Governor Greg Abbott swiftly approved the law this month. In defending the new legislation, he asserted that he did not believe fetuses should be “treated like medical waste and disposed of in landfills.” While the law can be viewed as a compromise intended to make amends for ideological differences, it presents an unjustified barrier to a constitutional right to abortions, even before questions of the abortion issue itself enter the conversation.

The law introduces a new emotional cost to women undergoing a procedure with implications that may already be weighing them down. Aside from the obvious reality that the aftermath of an abortion becomes more formalized and salient, the legislation eliminates the notion of choice that is essentially important to those who disagree with the state’s stance on abortion. It also further removes women from the abortion debate and could be weaponized to dissuade women from getting abortions by making the process more emotionally taxing for them. More broadly, the law is a sleight to the landmark Supreme Court decision in Roe v. Wade. In 1973, Roe v. Wade established the constitutionality of abortions and has protected a woman’s freedom of choice in such decisions ever since. Just this year, the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt against Texas’ restrictive abortion access laws further bolstered the precedent set by the 1973 ruling.

Despite the history of precedents in defense of abortion in our nation’s highest court, Texas is not the only state that has moved to create emotional barriers for women seeking access to abortion. In Missouri and five other states, women are required by state law to wait until 72 hours after a mandated ultrasound to receive an abortion. In North Carolina, women are required to receive mandatory ultrasounds before abortion procedures. This Texan law is part of a national trend in red states to emotionally restrict constitutionally protected female reproductive rights, not unlike difficulties introduced in some states to voting rights.

Such a forceful mandate codifies a specific ideological and moral stance on abortion. By law, it directs women and state health care providers to treat fetal remains as once-sentient beings complete with human burial rites.

Duke students have historically enjoyed greater access to birth control and abortion. Duke was one of the first universities to institute an interest-free abortion loan fund for students in 1971. It may seem difficult to grasp the severity of seemingly provincial Texan politics. In light of President-elect Donald J. Trump’s campaign promises to repeal Roe v. Wade and have the legality of abortion “go back to the individual states,” however, the national trend takes shape, emboldened by the results of the election.

This movement by Republican state legislatures is sure to be the first of many political changes we see in the next two to four years given how the Republican voter base swung in the general election and how the GOP came back together in some ways as a result. Voters and minority leaders in legislatures must continue to remember their commitments to the constitution and the larger historical picture.


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