For many people, George W. Bush’s re-election serves as both a wakeup call
and a warning that women’s reproductive rights are in grave danger. The next
four years could well see a push to overturn Roe v. Wade; however, before
mounting that assault, anti-choice activists are supporting a collection of
legislative initiatives designed to chip away at Roe’s legal underpinnings until
it is too weak to withstand a court challenge.
Conservative Christian forces used similar tactics during Bush’s first term and were mostly successful — Bush nominated 20 anti-choice judges to federal appellate courts and signed two major pieces of legislation (the Partial-Birth Abortion Ban Act and the Unborn Victims of Violence Act) aimed at weakening abortion rights. And anti-abortion activists wielded significant influence during the recent presidential election, working hard to make sure Bush and other sympathetic lawmakers would again dominate the political landscape.
But even though Christian fundamentalists and other anti-abortion conservatives are “certainly taking credit for the president’s re-election and they’re certainly a powerful lobby in the administration,” they don’t have “a monopoly on morality,” says Vicki Saporta, president of the National Abortion Federation. Nor do they speak for most Americans on the issue, she says: “There is no mandate to overturn Roe.”
Indeed, despite the postelection emphasis on “moral values” voters — 28 percent of whom defined moral values in terms of abortion (preventing it, presumably) — polls conducted earlier this year showed that 57 percent of Americans support some version of a woman’s right to choose.
Accordingly, pro-choice advocates say that for the next four years, women must be vigilant, involved, and forceful in reminding Congress and the Bush administration of the pro-choice majority — particularly in relation to the following key issues, which will surely be part of the right wing’s coordinated assault on women’s health.
• Roe v. Wade — The most dire prospect for supporters of reproductive freedom is that a reconfigured U.S. Supreme Court, stacked with Bush-appointed justices, will have the opportunity to overturn the landmark 1973 ruling that legalized abortion. Such a decision would strip women of federal constitutional protections, giving individual states the ability to impose abortion restrictions — or to ban the procedure entirely. The New York-based Center for Reproductive Rights estimates that if Roe falls, women in 30 states, including Illinois and all of its neighbors, could lose their right to choose. Of that number, 21 states — including Missouri and most Southern states — are classified as high-risk, meaning abortion services are likely to disappear. The nation’s other 20 states, including California, New York, and Massachusetts, seem to be safe. The report is available at www.crlp.org.
However, several things would have to fall into place before this could happen. Replacing Chief Justice William Rehnquist, who voted against Roe in 1973, would not alter the 5-4 majority in favor of abortion rights that exists on today’s Supreme Court. Bush would need the opportunity to replace Sandra Day O’Connor, John Paul Stevens, or Ruth Bader Ginsburg (all rumored to be nearing retirement) to swing the court. Bush’s “model justices,” Antonin Scalia and Clarence Thomas, are strictly anti-choice; it’s likely that his nominee would be, too.
“We have a very fragile balance on the court currently,” says NAF’s Saporta, “and his appointees to the lower courts have consistently been very conservative and anti-choice. So that doesn’t bode well for his appointing a moderate.”
If the balance does shift, it would take just one case to erase 31 years of reproductive freedom. Here’s how: Anti-choice forces would appeal the decisions, made by three different U.S. District Court judges in three different states, that declared the Partial-Birth Abortion Ban unconstitutional because (1) it does not include a provision allowing an abortion to preserve the health of the mother and (2) the wording is too broad and could go beyond barring just so-called partial-birth abortions to ban second-trimester abortion procedures that are safe and legal.
Such an appeal could end up at the doorstep of an anti-choice Supreme Court — and if it opted to take the case, then the government could give the justices the occasion to “revisit” Roe, a move that even advocates admit involves questionable legal reasoning. (Louise Melling, director of the American Civil Liberties Union’s Reproductive Freedom Project, notes that the government did just that in the most recent cases dealing with reproductive rights.)
Overturning Roe would leave what the Center for Reproductive Rights calls “a patchwork of rights.” Some states have existing bans (called “trigger laws”) that would go into effect the moment Roe falls. Others have bans that have been stymied by state-court injunctions; given the opportunity, anti-choice forces would certainly move to have those injunctions lifted. Some state legislatures would likely propose, and pass, new bans. In still other states, abortion rights are protected under the state constitution (see “After Roe” on page 14 for a look at the issue in Illinois).
• Child Custody Protection Act — If it passes, this bill would make it a federal crime for an adult to help transport a minor across state lines for an abortion unless that minor has met every one of the home state’s requirements. Supporters of the bill call it a safeguard against circumvention of abortion laws, but pro-choice advocates — who have dubbed the bill the “Teen-Endangerment Act” — say it ranges from inconvenient (in some towns, the nearest clinic might be across state borders) to unsafe (as John Kerry pointed out during the second presidential debate, it could be dangerous “to require a 16- or 17-year-old kid who’s been raped by her father and who’s pregnant to have to notify her father”) to illegal (state laws, they argue, cannot travel with you).
“Most minors involve their parents in their decision to have an abortion,” Saporta says, “and those who do not usually do so for very good reasons — because they’re in dysfunctional families where they actually fear repercussions and violence. And you would want teens in difficult situations to turn to a trusted adult — an aunt, a grandmother, a sister, a clergyperson. And to prosecute those people for helping that teen obtain abortion care only seeks to put those teenagers at risk.”
• Weldon Amendment — Late last month, House and Senate negotiators approved the Weldon Amendment, originally known as the Abortion Non-Discrimination Act, cleverly embedded with the provision for federal family-planning funds in the House version of the 2005 appropriations bill. Under today’s laws, health-care entities — physicians, hospitals, HMOs, insurance plans — are required to provide abortion access; individual providers can opt out on moral or religious grounds, but the clinic or organization is required to provide referrals. However, the Weldon Amendment limits the ability of federal, state, and local governments to withhold federal money from those entities that don’t follow the rules.
The Weldon Amendment will have particularly harmful repercussions for low-income women, who depend on federal money to ensure that they get the information, care, and referrals necessary for their health. By nullifying or qualifying that promise from the government, the Weldon Amendment will make it more difficult for low-income women — who might not be able simply to go to another clinic — to get the services they need.
Melling, of the ACLU, calls the legislation radical and says it “suggests a purposefulness as [anti-choice forces] go forward now.” Acts such as this serve as “signals,” she explains, that encourage and reassure them of a shared goal.
• Unborn Child Pain Awareness Act — U.S. Sen. Sam Brownback, R-Kansas, proposed this bill, which would require doctors to inform any woman seeking an abortion that her fetus will experience pain. Under this legislation, abortion providers would be obligated before performing any abortion procedure to tell the woman orally and also show her, using government-sponsored brochures containing graphic illustrations, that Congress has found that a fetus can experience pain at a certain point in its development. The providers would also be required to offer the woman anesthesia for the fetus.
Anti-abortion forces are attempting to push similar bills in state legislatures. In Massachusetts, for example, the Women’s Right to Know Bill employs explicit visuals and speeches and mandates a 24-hour waiting period for the woman to contemplate those very images.
“It’s designed to dissuade women from choosing an abortion,” says Melissa Kogut, president of the Massachusetts chapter of NARAL Pro-Choice America.
• RU-486 Suspension and Review Act — Both the House and the Senate in the next session are expected to consider this bill, which could jeopardize women’s access to RU-486 (mifepristone), a drug that induces abortion early in a pregnancy and provides an alternative to the more common surgical procedure. Before it received approval from the Food and Drug Administration in 2000, RU-486 underwent about a decade’s worth of tests and trials here and in Europe. But the lawmakers sponsoring the bill — informally known as Holly’s Law in memory of 18-year-old Holly Patterson, who died after taking mifepristone — say it has dangerous and sometimes fatal side effects. Abortion providers argue that Patterson’s death, though tragic, was not the result of her using RU-486.
Saporta, of the NAF, remains hopeful that this bill won’t get far. The FDA last week changed the label on RU-486 to include more comprehensive warnings.
• Emergency contraception — When the FDA announced last year it would not approve the over-the-counter sale of emergency contraception (also known as the “morning-after pill,” this type of drug prevents a fertilized egg from implanting in the uterus), the agency “ignored [both] the science” and the recommendations of two advisory committees, says Amy Allina, of the Washington, D.C.-based National Women’s Health Network. She describes it as another “signal to the religious conservatives.”
Now the FDA is re-examining the drug (which has been consistently misrepresented as a version of abortion). The agency could decide to pull emergency contraception from the market entirely, relabel it, or make it available as an over-the-counter drug with an age limit.
That’s why it’s important to keep an eye on whom Bush appoints as the next FDA commissioner. “If he puts someone in the job that shows as much disrespect for science as the agency has shown over the last six months, it could have a really damaging effect,” Allina says.
Bush’s record for these appointments isn’t any better than it is for judicial nominees. In 2002, for example, the president nominated David Hager to chair the FDA’s Advisory Committee on Reproductive Health Drugs. Not only is Hager vehemently anti-choice, but he also authored the 1998 book As Jesus Cared for Women: Restoring Women Then and Now and has suggested prayer and Bible reading as treatments for premenstrual syndrome.
• Abstinence-only education — “Our president is obsessed with abstinence-only programs,” NARAL’s Kogut says. “The amount of federal funding coming into states for abstinence-only sex-ed programs is astounding.”
Indeed, the newly appointed secretary of education, Margaret Spellings, is
an avowed proponent of these initiatives despite significant evidence casting
doubt on their effectiveness.
With anti-abortion activists poised to move forward on their agenda, some self-described pro-life voices question the strategy.
Dr. Glen Harold Stassen, the Lewis B. Smedes Professor of Christian Ethics at Fuller Theological Seminary, contends that abortion rates in the U.S. have actually been on the rise since Bush took office in 2001.
Complete national statistics since 2001 aren’t available, but Stassen found data from three states through 2003 and from 13 more covering 2001 and 2002. Eleven of those states reported increased abortion rates; five of them saw decreases.
Stassen, who opposes abortion, suggests that the statistics suggest that the fight over abortion should be framed differently.
“Economic policy and abortion are not separate issues; they form one moral imperative,” he writes in SojoMail, a weekly e-mail magazine that discusses faith, politics, and culture. “Rhetoric is hollow, mere tinkling brass, without health care, health insurance, jobs, child care, and a living wage.”
Stassen’s views, however, are unlikely to influence the national debate; indeed, pro-choice advocates believe a rising number of abortions is more likely to fuel the push to ban the procedure.
So, rather than craft laws that would address the economic considerations that drive women to abortion or promote effective sex ed that teaches pregnancy prevention, anti-choice activists use this kind of data to push for ever-more-severe restrictions on abortion — despite the fact that such restrictions might not work.
And their impact could last for generations.
“I really do think that these are sort of extraordinary times,” says the ACLU’s Melling.
“What we face is a Congress intent on enacting more restrictions that really
are sort of unparalleled and will affect real women’s lives and in particular
affect the lives of young women and poor women.”
This article appears in Dec 9-15, 2004.
