Nearly
30 years after the Supreme Court recognized women’s constitutional right to end
unwanted pregnancies through abortion in Roe
v Wade, that right is facing what may prove to be its most serious
challenge.
ย ย ย ย ย ย ย ย ย ย ย Anti-choice activists have been
rallying against Roe for decades,
chipping away at the decision’s legal foundation with the help of sympathetic
judges at the federal and state levels. Several states have also made it more
difficult for women to undergo the procedure by passing laws restricting access
to abortion via mandatory waiting periods and parental and spousal
notification.
ย ย ย ย ย ย ย ย ย ย ย But last November’s elections gave
Republicans a majority in both houses of Congress — and control of the White
House — for the first time since the Roe decision. Both President Bush and new Senate Majority Leader Bill Frist are
staunchly anti-choice.
ย ย ย ย ย ย ย ย ย ย ย That could clear the way for
anti-choice legislation that’s previously passed in the House to become law.
Republican control of the Senate may also lead to the confirmation of several
anti-choice judges nominated for federal judgeships by the Bush administration.
And there’s wide speculation that the Supreme Court itself will experience
turnover this summer, with the retirement of one or more aging justices. A
sympathetic Senate could make confirmation of an anti-choice justice smooth
sailing.
ย ย ย ย ย ย ย ย ย ย ย For the defenders of a woman’s right
to choose, there are stormy waters ahead, indeed.
Legislation
banning so-called “partial birth” abortions will likely be the first measure
to reach the Senate floor for a vote. Bush has repeatedly pledged to sign such
a law — which former President Clinton vetoed in 1996 and 1997 — and the
idea of banning the rare practice has broad public support.
ย ย ย ย ย ย ย ย ย ย ย A recent USA Today/CNN/Gallup poll found that 70 percent of respondents
support banning abortions performed in the last six months of pregnancy, except
in cases where the procedure would save the life of the mother. (The same poll
found that only 38 percent of respondents favor a constitutional amendment
outlawing abortion except in order to save the life of the mother.)
ย ย ย ย ย ย ย ย ย ย ย The Supreme Court has repeatedly
found state laws banning “partial birth” abortions to be unconstitutional,
citing a lack of provisions protecting the life or health of the mother.
Justices have also expressed concerns such legislation is so vaguely defined
that it undermines Roe.
ย ย ย ย ย ย ย ย ย ย ย A “partial birth” abortion ban,
without an exception for the mother’s health, passed in the House again last
July. Among legislators representing parts of Monroe County in the House,
Democrat Louise Slaughter and Republican Amo Houghton both voted against the
ban, while Republicans James Walsh and Tom Reynolds supported it.
ย ย ย ย ย ย ย ย ย ย ย Top Republicans have indicated they
have since crafted a ban that can pass Constitutional muster, but have not yet
unveiled it.
ย ย ย ย ย ย ย ย ย ย ย Several other measures restricting
access to abortion or potentially undermining Roe‘s legal foundation have passed the House since the 2000
election, and could reach the Senate floor in 2003.
ย ย ย ย ย ย ย ย ย ย ย The “Unborn Victims of Violence
Act,” passed in April 2001, is ostensibly designed to create a separate,
additional criminal penalty if an unborn child is hurt or killed in the
commission of a crime. But by elevating the legal status of a fetus to that of
an adult, it could render Roe moot by
making abortion the legal equivalent of murder. Bush has pledged to sign the
bill, which was supported by Walsh and Reynolds and opposed by Slaughter and
Houghton.
ย ย ย ย ย ย ย ย ย ย ย Last April, the House passed the
“Child Custody Protection Act,” which would make it a federal crime to
transport a minor over state lines in order to have an abortion performed
without meeting the parental notification requirements of her home state. New
York does not require parental notification.
ย ย ย ย ย ย ย ย ย ย ย And, last September, the House
passed the so-called “Abortion Non-Discrimination Act.” A fact sheet on the
legislation compiled by the National Organization for Women calls it “one of
the most dangerous and burdensome of all of the many anti-abortion and
anti-contraception bills being promoted by extremist opponents of women’s
reproductive health care.”
ย ย ย ย ย ย ย ย ย ย ย As the fact sheet outlines, were the
bill to become law, health care clinics that receive federal Title X funds —
clinics that primarily serve low-income women — would no longer be required
to provide information about abortion options as a condition of receiving those
funds. (Title X money cannot be used to pay for an abortion, but clinics receiving
Title X funding can provide referrals to abortion providers.)
ย ย ย ย ย ย ย ย ย ย ย Because the legislation does not
define “abortion,” the fact sheet states, religiously affiliated hospitals and
other health care providers could be exempted from state laws that require them
to provide emergency contraception to rape victims. (Choice advocates argue
that emergency contraception is not abortion, as it merely prevents pregnancy
from occurring.)
ย ย ย ย ย ย ย ย ย ย ย Furthermore, the fact sheet asserts,
the bill would nullify a state’s ability to comply with the Hyde Amendment,
which entitles Medicaid recipients to abortion coverage in cases of rape,
incest, or when the mother’s health is at stake. And the bill would prevent
states from requiring health-care providers that receive state Medicaid funds
to provide abortion referral services, or even information about contraception,
if the method is deemed by the provider to be “abortifacient,” or the
equivalent of an abortion.
ย ย ย ย ย ย ย ย ย ย ย Again, Slaughter and Houghton voted
against the act, and Reynolds and Walsh voted in favor of it.
New York State
was “at the forefront of legalizing abortion,” says Shelley Page, spokeswoman for
Planned Parenthood of the Rochester/Syracuse region. Page notes that New York
legalized the practice three years before Roe
went into effect.
ย ย ย ย ย ย ย ย ย ย ย Since then, the state legislature
“has remained reasonably supportive of reproductive freedom in this state,”
Page says. Bills that would ban late-term abortions or impose restrictions,
like waiting periods, come up from time to time, but don’t go very far in the
legislative process, thanks in large part to the Democratically held Assembly
and its pro-choice speaker, Sheldon Silver.
ย ย ย ย ย ย ย ย ย ย ย Governor George Pataki is nominally
pro-choice. But as the Westchester Coalition for Legal Abortion notes, as a
state legislator, Pataki consistently voted against Medicaid funding for
abortions; and as governor, he has pledged to sign bills banning
“partial-birth” abortions and requiring parental notification — should they
ever reach his desk.
ย ย ย ย ย ย ย ย ย ย ย “We feel the threat is at the
federal level, and not at the state level right now,” Page says, but adds,
“that doesn’t mean we don’t have be vigilant on the state level. We can’t be
complacent about rights we have.”
ย ย ย ย ย ย ย ย ย ย ย Page expressed alarm over Bush’s
recent renomination of two anti-choice judges —- Federal District Court Judge
Charles Pickering and Texas Supreme Court Justice Priscilla Owen — for the
5th Circuit Court of Appeals. Both judges’ initial nominations were defeated in
the Senate last year — before Republicans took control of that house, which
confirms nominees — in part over concerns about their records on human and
reproductive rights.
ย ย ย ย ย ย ย ย ย ย ย And these days, Page and other
choice advocates are as concerned for women’s health as they are for the health
of the current Supreme Court justices.
ย ย ย ย ย ย ย ย ย ย ย Chief Justice William Rehnquist, 78,
is widely rumored to be ready to step down, and either Justice Sandra Day
O’Connor, 72, or John Paul Stevens, 82, may do the same this year. Though the
current Supreme Court is hardly a bastion of pro-choice sentiment, a court
headed by a Bush appointee would almost certainly be less so.
This article appears in Jan 22-28, 2003.
