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Posted on December 16, 2021 at 5:56 PM

by Mary Faith Marshall, PhD, FCCM, HEC-C

You might ask what sunbathing topless at the beach in Ocean City, Maryland and having an abortion have in common. Well, I’ve done both, (more than once), and I have a personal stake in continued access to them both—as should all persons with breasts who don’t identify as cisgendered men, and all persons capable of becoming pregnant.

Given the exceptional focus on the Supreme Court’s recent hearing on S. B. 8, (the Texas “bounty hunter” abortion law banning abortions after detection of a fetal heartbeat and granting enforcement to citizen vigilantes) you might have missed the case of Eline et al v. Town of Ocean City, Maryland. It was heard this summer by the 4th Circuit Court of Appeals. The case involved an ordinance in the resort town that restricts women, not men, from showing their breasts on the city’s beaches. The plaintiffs argued that the ordinance unconstitutionally discriminated against women, and that the gender classification would not withstand scrutiny of the Equal Protection Clause of the 14th Amendment to the Constitution.

The district court granted Ocean City’s Motion for Summary Judgment on the grounds that the prohibition against public showing of bare female breasts relates substantially to the important government interest of protecting public sensibilities and thus satisfies heightened scrutiny of the Equal Protection Clause. 

The three-judge panel of the 4th Circuit Court of Appeals upheld the lower court’s ruling. “Plaintiffs ask the Court to overrule Biocic [United States v. Biocic, 928 F.2d 112, 115–116 (4th Cir. 1991)], and conclude that protecting the public sensibilities is no longer an important government interest. To be sure, public attitudes about gender and sexuality are constantly changing and evolving. But our precedent has not changed. As a three-judge panel, we may not overrule Biocic, which recognized that protecting the portion of society that disfavored public display of female breasts furthers an important governmental interest, and it has not been overruled by the Supreme Court.”

While concurring, Chief Judge Gregory stated in his finding that:

“At first glance, Ocean City’s ordinance seems innocuous enough. It forbids public nudity and defines nudity in a way commonly understood across western societies. But we must take care not to let our analysis be confined by the limits of our social lens. See Obergefell v. Hodges, 576 U.S. 644, 673 (2015). Suppose the ordinance defined nudity to include public exposure of a woman’s hair, neck, shoulders, or ankles. Would that law not run afoul of the Equal Protection Clause? While the ordinance here imposes a much narrower restriction on women, this is only a difference in degree, and not in kind.

Viewed in this light, laws that discriminate between male and female toplessness embody problematic stereotypes through the control imposed upon the bodies of women and not men. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 915 (1992) (Stevens, J., concurring in part, dissenting in part) (“‘Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. . . The same holds true for the power to control women’s bodies.”).”

Sticking to precedent rather than sticking it to pregnant persons

The two cases invoke two legal themes: control over women’s (and all pregnant persons’) bodies and adhering to legal precedent (stare decisis). Findings in both cases perpetuated incursions against the former. As to precedent, the 4th Circuit stuck to it—the Supreme Court did not.

Chief Justice Roberts (and Justices Sotomayor, Breyer and Kagan) found that: S.B. 8 “is contrary to this Court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern PA. V. Casey. It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.”

Witness Justice Sotomayor’s impassioned dissent:

“There is no dispute that under this Court’s precedents, women have a constitutional right to seek abortion care prior to viability. As noted, S. B. 8 was created to frustrate that right by raising seemingly novel procedural issues, and it has had precisely the intended effect. Under such unique circumstances, the equities plainly favor administrative relief while this Court sorts out these issues. Every day that S. B. 8 remains in effect is a day in which such tactics are rewarded. And every day the scheme succeeds increases the likelihood that it will be adapted to attack other federal constitutional rights…The State’s gambit has worked. The impact is catastrophic.”

The lay of the land prior to S. B. 8.

  • The most common reasons for pregnant persons seeking abortions are: not being able to afford to have a child, pregnancy at the wrong time in life, the man not being a suitable partner/parent
  • Since 2011, States and local governments have passed almost 500 restrictions on abortion providers; many of these are not evidence-based or generally applicable to the medical profession. The National Academies of Medicine, Science and Engineering confirmed in its 2018 report, The Safety and Quality of Abortion Care in the United States, that State regulations that create barriers to care are the largest threats to the quality of abortion services.
  • Even before 20-week bans were implemented, more than 4,000 pregnant persons/year were denied abortions due to gestational limits.
  • Being denied a wanted abortion results in economic insecurity for pregnant persons and their families, and an almost four-fold increase in odds that the household income will fall below the Federal Poverty Level. This issue has sparked international attention. In 2017 the United Nations Special Rapporteur on extreme poverty and human rights expressed concern that low-income women face obstacles to accessing abortion, trapping pregnant persons in cycles of poverty. In 2020, the UN Working Group on Discrimination Against Women and Girls leveled the accusation that some states had used the COVID-19 crisis to restrict abortion access.
  • And on September 14, 2021, the UN Human Rights office issued an emphatic denouncement of S.B. 8 and “Supreme Court complicity.”
  • The majority of pregnant persons seeking abortions are 20-29 years old. Using data from the UCSF Turnaway Study, investigators found evidence of a large and persistent increase in financial distress that is sustained for several years for the pregnant persons who were denied an abortion. Being denied an abortion increases the amount of debt 30 days or more past due by 78 percent and increases negative public records, such as bankruptcies and evictions, by 81 percent.
  • Children born later to pregnant persons who are able to get an abortion experience more economic security and better maternal bonding than children born because a pregnant person was denied an abortion
  • Pregnant persons who obtain an abortion are: 38% black, 21% Hispanic, 33% white and 7% other. So, once again, there is systemic oppression resulting in disparate health, financial and social impacts on pregnant persons of color.
  • “For significant segments of the population, reliable and affordable contraception remains out of reach. And for many women, affordable childcare is as illusory as employment policies that accommodate working parents.”

What if Roe v. Wade is overturned?

At least 21 states could ban all or nearly all abortions. Twenty-two if VA Governor-elect Glen Youngkin effects his sub-rosa campaign pledge to “start going on offense” to ban abortion in Virginia, except in cases of rape, incest, or to save the life of the pregnant person. More states will likely do so given the current political landscape. Pregnant people across the country, many of whom cannot afford to travel or take time off from work for an out-of-state abortion are currently forced to continue unwanted pregnancies. This number will only increase, to the detriment of pregnant people and the families that rely on them.

Is there hope for a better outcome?

The Women’s Health Protection Act of 2021 passed the House of Representatives on September 24, 2021. The act would create a statutory right to abortion care free from burdensome regulations such as TRAP (Targeted Restrictions on Abortion Providers) laws, previability gestational age bans, and postviability bans that include required exceptions such as providing medically inaccurate information, unnecessary physical plant/staffing conditions, and prohibited telemedicine visits and medication prescribing. The chances of it passing this Senate, though, are slim.

Another potential source of hope

Today the FDA approved over-the-counter availability of abortion medication (mifepristone and misoprostol) for both clinic-based and self-managed medical abortion. This should dramatically mitigate the effects of S.B.8.

Except, of course, for legislation such as that being challenged in Mississippi: Dobbs v. Jackson Women’s Health Organization (heard by the Supreme Court on December 1). It bans, among other things, telemedicine consults by physician abortion providers in Mississippi thus strategically preventing provision of consultations, treatment recommendations and dispensing prescription medications.

So, those of us who care about abortion access and about pregnant people and their families must redouble our advocacy efforts at the local, state, and national level. And when we need a break, and if it weren’t winter, we could put our sunglasses on and go to the beach. No worries, though, climate change will likely fix that pesky temperature problem soon…

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