A woman has a constitutional right to have an abortion at any time during her pregnancy to protect her life or health, including her emotional health, according to Roe v. Wade (1973) as reaffirmed, just barely, with cutbacks (in the form of allowed burdens on the exercise of the right), in Planned Parenthood v. Casey (1992) 505 US 833.
Opponents consider this right to be illegitimate, not a right that should be recognized at all. There has thus been continuous opposition to Roe since 1973. Protest against Roe has taken many forms, including picketers harassing women going into abortion clinics, to murder-by-sniper of doctors providing abortions. The names of doctors have been publicized as murderers, they've been harassed at home, and have had their names and addresses published on the internet along with not very thinly veiled invitations to harm them and their families.
On the legislative fronts, anti-abortion activists focused first on the state level, introducing legislation in burdening the right. Nebraska enacted a Partial Birth Abortion Act, which was held unconstitutional in 2000 in Stenberg v. Carhart, for failing to include an exception to the prohibition on late term abortions allowing the procedure.
On the national level, anti-abortion activists succeeded in having introduced in Congress similar legislation, also called a Partial Birth Abortion Act which became law. It has also been held unconstitutional in three U.S. District Courts, including the Northern District of California (San Francisco) and the Southern District of New York (New York City), for similar reasons: failure to respect the right of a woman to protect her own health. Self-preservation or self-defense, the abortion right might better be called in the context of therapeutic abortion.
When Roe was unexpectedly upheld in 1992, in Casey, the attack on the abortion right shifted from direct attack on the right as a whole, to a stealth campaign aimed at nibbling away the right bit-by-bit in order to make an abortion so difficult to obtain that it was legislated out of existence as a practical right.
The abortion right, as developed by the Supreme Court, contains important qualifications, amounting to loopholes, which attackers exploit.
One is a recognition by the Court that the longer the pregnancy endures, the greater the right the state has to prevent its termination without good reason. During the former trimester scheme devised by Justice Harry Blackmun, who wrote for the Court in Roe, the pregnant woman had the right to obtain an abortion without citing reasons of personal health in justification. This the non-therapeutic abortion situation, called by opponents "abortion on demand."
The former trimester scheme gave the woman the absolute right to end her pregnancy for any reason or no reason during the first three months, but not the last three months, and maybe yes, maybe no, during the middle three months. This three-tier scheme was abandoned in Casey when the court announced a new two-tier 'viability' scheme. From then on, the woman had the right to abort for any or no reason before the fetus was capable of surviving outside the womb even with medical assistance.
However, if the woman delayed in aborting until after the fetus could survive with medical assistance outside the womb, the fetus was now to be judged as being 'viable.' The anti-abortion movement has now acted to regard the fetus, legally, as a person, having as many of the rights as a fully born human being.
In the recent capital murder prosecution of Scott Peterson by San Joaquin authorities, trial held on change of venue in San Mateo, California, Peterson was charged and convicted of murdering his wife and their unborn fetus, in its eighth month. The fetus had been given an intended name, Connor, which was used to humanize the fetus.
The 'double-murder' aspect of the Peterson case, which includes the idea that a fetus is to be regarded as a human being, was sufficient to amount to a 'special circumstance' under the California murder laws, thus allowing the death penalty, which the jury recommended. A reported post-trial interview indicated that, to at least one juror, Peterson was regarded as the father of a living baby, not just a fetus, as to whom he had a special duty of protection and trust.
Sentencing is pending.
After viability of the fetus, however, the state has a legitimate interest in imposing certain requirements on the exercise of the abortion right provided the requirement is not unduly burdensome, as Justice O'Connor expressed the idea of allowable restrictions on the abortion right in Casey.
Thus, states could require women to provide personal identifying information, allegedly for medical/scientific reasons. Women could not be required to inform or obtain permission from husbands and fathers, however, as this risk to their lives was considered excessive, an undue burden.
For unemancipated young women, teenagers generally, parental consent could legally be required provided that, in case of a parental refusal, she could resort to asking a judge for permission instead. This is the so-called 'judicial bypass' requirement.
Aren't these a significant burden on the exercise of a constitutional right? First one must ask parents for permission and then sue? It may be a burden, but the restriction was held not to be an undue one, according the Court that decided Casey.
Supreme Court opinions are like computer programs, in the sense that any vulnerability is quickly exploited by hackers not wishing to be bound. Two additional weaknesses, flaws in the program, introduced into the Roe right, are the mandatory 24-hour waiting period, upheld as a "reasonable" means of requiring "reflection" before the constitutional right is exercised, to promote the state's interest in protection of the fetus, post viability, and the right of the state to require the woman to view "truthful, non-misleading information," about the nature of the procedure, the risks, and the status of the fetus in terms of age and development.
The burden of the 24-hour delay is that it forces women to run the gauntlet of anti-abortion protesters near clinics twice, and for rural or distant women, to make the trip twice or remain overnight, at some cost in time, money, and the need to explain her whereabouts to those at home whom she may prefer not to know of her business. Abortion is grounded in protection of a woman's privacy concerning intimate aspects of her life and being, yet she is being forced by the waiting period to give up her privacy in order to exercise the right to it.
The burden of the right of the state to show the woman certain officially promulgated information, propaganda some would call it, is that it requires the woman's doctor, as part of the obtaining of informed consent, to recite a litany of what the state considers relevant information. The doctor may not consider it relevant to the woman's health or privacy concerns. The woman may consider it not only irrelevant intrusive to her privacy concerns.
The requirement to submit to state mandated content puts the state into the business of composing content designed to propagandize the woman who wishes to exercise what she has been told by the U.S. Supreme Court is her constitutional right to control her privacy, body, reproductive activity, and even her private thought processes.
It strikes me as being akin to the First Amendment decisions holding that its okay for Jehovah's Witnesses to knock on your door to see if you'd like to buy their version of God, only instead of private citizens doing the knocking, it's your doctor, at the clinic, acting on behalf of the government, before you can get the abortion you specifically came to obtain.
The purpose of such requirements is not to protect the woman's interest in controlling her right to an abortion, but to allow the neighbors, acting through the state, to interfere with the free exercise of it. This is the tyranny of the majority, the very thing constitutional rights are supposed to protect against.
Mandating the interposition of burdensome state requirements before the woman is free to exercise her right is to nullify it.
The St. Petersburg [Florida] Times article below discusses upcoming efforts by anti-abortion activists to deprive women of their important constitutional right to control their own bodies, including reproduction and whether to become a mother either for the first time or again. The new congressional statute that opponents of abortion are seeking to have enacted is called the Unborn Child Pain Awareness Act, a new exercise in state-mandated propaganda.
Abortion debate vaults to federal stage
Antiabortion groups abandon their state-level strategy for bipartisan efforts of national scope.
By BILL ADAIR, Times Washington Bureau Chief
Published December 19, 2004
WASHINGTON - Tucked inside the giant appropriations bill that passed Congress last month are a few paragraphs about abortion.
Written by Rep. Dave Weldon, a Republican from Melbourne [FL], the paragraphs say doctors and hospitals can't be penalized by the government if they refuse to perform abortions.
The approval of Weldon's amendment marked the third congressional victory for antiabortion groups in two years. Congress also passed laws that say a fetus can be considered a crime victim and that prohibit a rarely used procedure that critics call a "partial-birth abortion."
The laws have provided new momentum for antiabortion groups. Instead of focusing on state laws, their strategy for the past 30 years, they are turning their attention to federal laws because Republicans control the White House and both houses of Congress.
Douglas Johnson, legislative director for the National Right to Life Committee, said the 108th Congress, which concluded this month, was the "most productive" for his group since the Roe vs. Wade decision in 1973.
"The Republican leadership in the House and Senate has been extremely good in advancing these prolife measures," he said, adding that President Bush also has been a strong supporter.
Johnson is optimistic about the prospects for the coming year because Republicans gained seats in both houses. The gains could be especially important in the Senate, which has stopped many antiabortion bills.
Next year, Congress is likely to consider a proposal called the Unborn Child Pain Awareness Act, which would require doctors to notify women seeking abortions at 20 weeks or later that the fetus could feel pain. The woman would have to sign a document to accept or reject pain medication for the fetus.
As they have done in state legislatures, antiabortion groups are using an indirect approach in Congress. Their proposals don't outlaw abortions, but discourage it through other means.
Dan Bartlett, White House communications director, said the strategy is to pass bills that can win support from both sides of the abortion debate. For example, some abortion rights supporters endorsed the fetal crime victim bill, which is known as the Unborn Victims of Violence Act.
"We have seen bipartisan coalitions come together to find common ground, whether it be partial-birth abortion or the Unborn Victims of Violence Act," Bartlett said. "The strategy ought to be to find consensus, or as much consensus as possible, and work to build a culture of life through those concrete steps."
But abortion rights supporters say "building a culture of life" is an effort to outlaw abortions.
"They want to make it more difficult for women to obtain abortion services," said Vicki Saporta, president of the National Abortion Federation. "They have done it on the state level and are now doing it on the federal level."
She said the fetal victim law "was a backdoor attempt to try to undermine Roe."
Likewise, NARAL Pro-Choice America said Weldon's change is a "sneak attack on a woman's right to choose."
Weldon's law says doctors, health plans and hospitals that refuse to provide abortion services cannot be penalized by state or federal agencies.
Johnson of the National Right to Life Committee called it "a shield for health care providers that do not wish to participate in abortion. It is a shield against government coercion."
It is similar to a bill written by Rep. Michael Bilirakis, R-Tarpon Springs, that passed the House in 2002. It did not pass the Senate, so Weldon and Rep. Henry Hyde, R-Ill., inserted it in this year's appropriations bill. That's a common tactic in Congress because the money bills must pass to keep the government operating.
Sen. Barbara Boxer, D-Calif., threatened to block the bill because the abortion language had not been considered separately by the Senate, but she agreed to let it pass after Senate Majority Leader Bill Frist promised a separate vote in early 2005 on whether to repeal the measure.
The Unborn Victims of Violence Act does not directly relate to abortion. It specifies that harming a fetus during a violent crime against a pregnant woman is a separate offense.
When there is a violent crime against a pregnant woman, it "has claimed two victims," Johnson said. The bill was called Laci and Conner's law, after murder victim Laci Peterson and her fetus.
But abortion rights supporters say the law is part of a broader effort to make all abortions illegal.
"They are trying to create the concept of the fetus as a person separate and apart from the woman," said Saporta, whose group represents abortion providers. She believes antiabortion groups will use that definition to try to overturn the Roe vs. Wade decision, which said the constitutional right to privacy extends to a woman's decision about abortion.
But Johnson said the fetal victim law was not related to abortion. "We're not the antiabortion movement, we are the prolife movement. We believe the unborn child is a member of the human family."
He said the new law is "an important recognition, but it will not have any direct impact on the state laws on abortion."
The "partial birth" law marked the first time Congress has banned a specific abortion procedure since the Roe vs. Wade decision. Supporters said the law would prohibit a rare type of late-term abortion. When Bush signed it, he said, "For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way."
But abortion rights groups said the law was written so broadly that it could include women in the 13th week after conception. Federal courts have struck down the law as unconstitutional. Appeals are pending. The other new laws have not been tested in court.
Saporta, whose group represents abortion providers, said antiabortion groups have made inroads in Congress but have consistently been stopped by the courts. The laws "have turned out to be very short-lived victories - and no victories at all," she said.
But some abortion rights groups are concerned that the new Congress will pass more laws they consider to be antiabortion.
"The Senate is much worse than it was before the election for reproductive health and rights," said Gloria Feldt, president of the Planned Parenthood Federation of America. "It was already pretty bad, and it's definitely even worse now."
Neal Devins, a law professor at the College of William and Mary, said the antiabortion movement has been relentless even though the Roe vs. Wade decision is likely to stand for years.
"They're going to take what they can get," Devins said. "They will take legislation that is symbolic. It is more than they got 10 years ago, but it is a victory."
Information from the New York Times was used in this report.
ABORTION FACTS
* 49 percent of pregnancies among American women are unintended; half of these are terminated by abortion.
* In 2000, there were 1.31-million abortions, down from an estimated 1.36-million in 1996.
* Each year, 2 of every 100 women aged 15-44 have an abortion; 48 percent of them have had at least one previous abortion, and 61 percent have had a previous birth.
* 58 percent of the abortions were performed during the first 8 weeks of gestation; 88 percent were performed within the first 12 weeks (the first trimester).
* 52 percent of U.S. women who have abortions are younger than 25; woman aged 20-24 obtain 33 percent of all abortions; teenagers obtain 19 percent.
Source: Alan Guttmacher Institute
© Copyright 2003, St. Petersburg Times. All rights reserved
