The Overlooked Impact of Pregnancy Test Technology on “Undue Burden”

This article is a guest contribution from practicing lawyer, Bridget Fay. If you’d like to submit a guest article, or otherwise work with SPL using your area of expertise, fill out our volunteer survey here.

Prior to the Supreme Court’s decision in Dobbs v. Jackson’s Women Health Organization, Supreme Court jurisprudence required that states permit abortion up through fetal viability. It reasoned that after viability, the state’s interest in protecting unborn life outweighed a woman’s privacy interests in medical decision-making; prior to that, the state could not impose an undue burden on a woman’s right to seek an abortion. Much criticism was aimed at this standard: due to advances in medical technology, “viability” is a moving point, from about 28 weeks in 1973 to about 23 weeks today.

Scientific advancements at the beginning of pregnancy have profound but ignored effects on the balance of interests in the second trimester: notably, advancements in the early detection of pregnancy have negated the purported need for late-term abortions in a way that were unfathomable when Roe v. Wade was decided in 1973.  

A woman who suspected that she was pregnant in the early 1970s would have to go to a doctor’s office to have her pregnancy confirmed. Laboratory pregnancy tests in doctor’s offices were quite new, having been introduced in 1970; doctors would often perform a physical exam to determine if she were pregnant. Often, women would wait several months before seeing a physician. According to the Monthly Vital Statistics reports of the mid-1970s, only half of women who gave birth had visited a doctor’s office by the end of the second month of pregnancy; by the end of the third month of pregnancy, a full quarter of women still had not visited a doctor.  

At-home pregnancy tests were developed in the 1970s, receiving FDA approval in 1976 and reaching store shelves in 1977.  The tests were finicky, expensive (costing $10 at the time, approximately $45 in 2021 dollars), and time-consuming. Women would wait until at least nine days after their expected period, collect urine in a clean jar, use a dropper to add it to a test tube with a reagent, and wait at least two hours for the result to appear. As the test worked by coagulating blood, any vibrations, movement, or shaking of the tests would give a false negative. This happened not infrequently: 20% of the women who took the tests and received a negative result were in fact pregnant.  

The expense of the tests, the time, and the relative difficulty of performing them were all hinderances to early detection of pregnancy. One can only imagine a teenage girl skipping math, history, and Spanish to hide out in a bathroom at school, watching her urine-filled test tubes and hoping none of her classmates asked what she was up to. Unlikely, to say the least.

By the time Planned Parenthood v. Casey was decided in 1992, at-home tests were faster to use (approximately 20 minutes), and, like modern tests, involved a strip instead of test tubes. However, nothing in Casey considered that advances in early pregnancy detection would alter the balance of interests or affect an undue burden analysis.  Although the viability standard was couched in terms of a state’s interest in unborn human life, it was a pragmatic standard that was the product of its time. As said in Casey: “The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”

Today, women who want to know if they are pregnant can access safe, easy, and affordable at-home pregnancy tests that work in a matter of minutes. Many stores, such as Walgreens and CVS, have their own in-house brands of pregnancy tests that cost $7 to $11.  At Dollar General, a ClearBlue test is $6.00 and a Rexall brand is $4.50. These tests produce results that are over 99% accurate on the first day of a woman’s missed period. (See CVS, Walgreens, Dollar General.) They are also available for free at thousands of non-profit pregnancy resource centers nationwide.

Notably, the tests are readily available. They are sold on Amazon and in retail stores’ online storefronts, available for shipping to the store or, for a fee, to the user’s home. If a woman does not want to get a test shipped to her, or is not able to (e.g., she does not want her parents asking about the package that showed up on the doorstep, lacks the funds to pay for shipping, lacks a computer or broadband internet, or is among the many Americans without access to a credit card), the tests are ubiquitous in drug stores.

There are eighty-two counties within the state of Mississippi.  We (author and Matthew L. Howell, Ph.D.) searched the websites of national drugstore chains (specifically, CVS, Walgreens, and Dollar General) to determine which counties in Mississippi have stores that stock pregnancy tests. The results were compiled into an Excel spreadsheet and cross-referenced with FIPS code for Census population estimates.

Eighty-one out of eighty-two counties in Mississippi have a CVS, Walgreens, or Dollar General that stocks store-brand pregnancy tests.  The only county that does not is Issaquena County, population 1,220 — a county so small that it lacks a supermarket (it has one convenience store, although it does not accept SNAP) and lacks a school system, instead sending its pupils to neighboring counties. In 2021, 99.96% of women in Mississippi live in a county that has an inexpensive, accurate, early stage pregnancy test available on the shelf of a local store; the other 0.04% of women would find pregnancy tests in the same area that they buy groceries or go to school.

The technological revolution that undermines the argument for second-trimester abortion is not just the ability to save babies at ever-earlier gestational ages; it is the ability of a woman to determine, easily and with certainty, that she is pregnant within days of a missed period. A woman’s window to have an abortion starts weeks, if not months, earlier in pregnancy than it did in 1973.  

The Supreme Court has long equated the right to an abortion with the right to abortion up to the point of viability. Casey unquestioningly followed Roe, and Roe was fresh off the rabbit-murder era, in which it was quite difficult for women to reliably detect pregnancy early on. Under Mississippi’s Gestational Age Act, HB 1510, which bans elective abortion after 15 weeks, women have ten to eleven weeks from a positive pregnancy test to obtain an abortion. That is not an “undue burden” on her right to choose, balances the interests of young and scared women with the state’s right to protect human life at all stages, and echoes the “fairness” standard set forth in Casey.

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Featured Image credit: Cottonbro Studio, Pexels.