The Next Abortion Battleground: 72-Hour Waiting Periods

In 2011, when South Dakota proposed the first 72-hour wait for a woman trying to get an abortion, the restriction was quickly seen for exactly what it was: an unprecedented attempt to create such a blatant roadblock that she would either leave the state or carry the pregnancy to term. While the South Dakota mandate (which also required a pregnant person to visit a crisis pregnancy center in between her two clinic appointments before she would be allowed to terminate) was held up in court, Utah passed a similar 72-hour wait, this time without a mandatory counseling session from an anti-abortion activist. Their bill went into effect in 2012.

All remained quiet on the three-day-wait front until early 2014, when Missouri introduced its own 72-hour waiting period. Comparing abortion to “buying a car” or “installing carpeting,” anti-abortion politicians easily passed the bill, where it was vetoed by Democratic Governor Jay Nixon, whose veto was eventually overridden by the legislature.

That veto appears to have opened the floodgates. The 2015 state legislative session are still mostly in pre-file mode, but already Kansas, Iowa and Mississippi have introduced their own 72-hour waiting periods, and there could be even more on the way.

The pattern isn’t an unusual one when it comes to model legislation or copycat bills. We saw this frequently during the legislative sessions following the 2010 Tea Party election wave. First, one state will propose a new and never before seen law. Once it passes there, another state or two will pick in up in the following year. If no court cases get filed to stop them in the first few states, then you will see an explosion of that piece of legislation being introduced in anti-abortion and mixed choice states all throughout the country.

The most well-known example of this is the so called “fetal pain” 20-week ban. First introduced in Nebraska in 2010, the bill, which was specifically crafted by National Right to Life and drafted with Nebraska in mind as its opening salvo, was a loan effort while anti-abortion groups waited to see if Nebraska abortion provider Dr. Leroy Carhart would sue to block it from going into effect. When he chose not to, similar 20-week bans were introduced in a handful of new states in 2011, then a few more in 2012, followed by mass proposals in 2013 and 2014, and even a federal bill which so far has been unsuccessful.

Looking at these other examples of copycat bills exponentially gaining traction, it’s almost impossible to view the new 72-hour contenders with anything but trepidation. We’ve already seen the impact that 72 hour waits have had in Utah and South Dakota. Abortion opponents claim the wait to be a major factor in Utah’s abortion numbers plummeting, and while South Dakota provides no recent numbers since their new 72-hour, no weekends or holidays super-sized wait went into effect, anecdotal evidence from other providers in nearby states suggests that often patients are leaving the state in order to access care.

While Iowa’s proposal is unlikely to become law due to a Democratic Senate majority who should be able to defeat it, the outlook is not nearly as cheery for Mississippi or Kansas, where the bills are far more likely to pass and be signed by their governors. Kansas borders Missouri, which also has a 72-hour wait and only one clinic in within the state lines, and would vastly increase the impact of Missouri’s own three day wait. Kansas’ only clinics are either on the Missouri/Kansas border or in Wichita, which serves as a sole provider for those in the western and southern portion of the state, and, increasingly, patients in Oklahoma, too. A three-day wait in Kansas creates a rapidly increasing pool of pregnant women who are unable to access a clinic in just one trip without traveling hundreds of miles.

Mississippi, too, faces the same issue if a 72-hour wait goes into effect. Mississippi currently has just one provider, located centrally in the state in the city of Jackson, and even that clinic is being held open solely by court order as it has been unable to get admitting privileges for its doctors as required by law. But the Jackson clinics doesn’t just provide care to Mississippi patients, but those who travel in from Alabama, where the state requires in person counseling 48 hours prior to an abortion, making two separate trips to the clinic mandatory and spacing them just far enough from each other that one overnight stay in town won’t fulfill the law.

A three-day wait in Mississippi would push patients back to Alabama, where clinics are already overwhelmed with appointments, or up to Memphis, Tennessee, which may soon have a 48-hour waiting period of its own. The other options become Arkansas, which also has only one clinic, or Louisiana, which has a law currently being litigated that if allowed to go into effect would close most of the clinics in that state. Even if the law remains blocked, Louisiana requires a 24-hour wait that would necessitate an overnight stay for most out of state patients wanting to terminate a pregnancy.

What abortion opponents studiously avoid when they bring up waiting periods is growing number of potential pregnant people who struggle to get to a clinic in the first place—much less struggle to get their twice. Waiting periods piled on top of TRAP (Targeted Regulation of Abortion Provider) laws that have shut clinics down increasingly compile on top of one another, making clinics further away and harder to book appointments at because of overwhelming patient need. Years ago, a 24-hour wait could potentially be viewed as a justified and necessary precaution, and not much of a burden on the right to access an abortion. However, we’ve come a long way from a time when a clinic was close to most people’s homes, or that a person could get in for an appointment almost immediately after learning she was pregnant.

We don’t need 72-hour mandatory waits for abortion when patients in many areas of the country are already facing a week or longer just to initially get in the door. We don’t need a so-called “cooling off” time when it takes many people hours just to get from their home to a clinic for an appointment. We already have “mandatory” waiting periods—the excessive amount of time that a patient now must wait to be seen in many states because anti-abortion legislatures have closed so many clinics that those that remain are overburdened by patient need.

As these laws begin to stack, abortion opponents are drawing together contiguous states, creating deserts where pregnant people will no longer be able to travel far enough to seek out single-day care.

Of course, that’s exactly what anti-abortion activists are hope will happen. The question is, are we going to let them?

Robin Marty is a freelance writer, speaker and activist. Her current project, Clinic Stories, focuses on telling the history of legal abortion one clinic at a time. Robin’s articles have appeared at Rolling Stone, Bitch Magazine, Ms. Magazine, In These Times, Truth Out, AlterNet, RH Reality Check and other publications.