Gearing Up for the Pro-Choice Battle
ON APRIL 22, pro-choice advocates marched on Washington to demand that protections for reproductive rights remain in place. Organized by the National Abortion and Reproductive Rights Action League (NARAL), the National Organization for Women (NOW), and Planned Parenthood Federation of America, among others, the march kicked off a four-year lobbying campaign designed to last the duration of President George W. Bush's first -- and, pro-choice activists hope, last -- term in office.
The campaign has already galvanized support on the nation's campuses. At Boston University, for instance, students are donning hot-pink sandwich boards that read keep your laws off my body and ru 4 reproductive rights, while collecting petition signatures in support of legal abortion. The issue has yet to acquire the appeal of such popular campus causes as the anti-sweatshop-labor and anti-globalization campaigns. But most of these students hadn't bothered to think about reproductive rights even 365 days ago. It's as if the Bush administration has inspired a whole new generation of campus activists.
Observes Gina Sartori, a Northeastern senior organizing students there: "The movement was practically dead before Bush got elected. Now you have Bush, and everybody hates Bush. He's really mobilizing us."
Which raises a question: are these abortion-rights organizations, nearly dormant during the past eight years, capitalizing on Bush's presidency in order to raise money, increase membership, and alleviate fears? Or are reproductive rights now vulnerable in a way they weren't when Bill Clinton led the nation?
IT'S A FAIR fair question. Abortion, after all, is still legal in this country. The 1973 Supreme Court decision Roe v. Wade guarantees women a constitutional right to abortion free from government interference during the first and second trimesters of pregnancy -- before fetal viability. And access to the procedure hasn't changed since President Bush assumed office.
That is to say, if you happen to be middle-class and live in the city, you have access to abortion. But if you're middle-class and living in a rural area, your access is diminished. And if you're poor almost anywhere, you effectively have no access. The same can be said about women who are under 18, who do not speak English, or who need an abortion after 18 weeks of pregnancy.
Says Susan Yannow of the Abortion Access Project, "Abortion may be legal, but who can get one? If you're a poor, rural, or young woman, you already have trouble."
If access was a problem even under Clinton, why did it not become an issue until a pro-life Republican moved into the White House? Primarily because the political landscape has changed. Bush used his first full day in office, which happened to fall on the 28th anniversary of the Roe ruling, to reimpose a ban on federal aid not only to international organizations that perform abortions, but also to those that merely discuss it as an option. (The "global gag rule" was initiated by Ronald Reagan in 1984 and maintained by the first President Bush. Clinton repealed the rule.)
Not only did Bush set the new administration's tone with this immediate anti-choice salvo, but for the first time since 1973 the pro-choice movement faces an overwhelmingly anti-choice climate on Capitol Hill. A solid pro-life majority in Congress has existed for the past six years, with as many as 217 abortion foes in the House and another 47 in the Senate.
And now they have a pro-life president who is sure to sign some of the bills vetoed by Clinton, including the ban on the controversial procedure opponents call "partial birth" abortion. The phrase, coined by the National Right to Life Committee, refers to a number of late-term-abortion methods that bring the fetus partly into the vaginal canal; abortions performed early in pregnancy take place entirely within the uterus.
According to the Washington, DCbased Alan Guttmacher Institute, only one percent of all abortions conducted in 1996 (the latest year for which statistics are available) took place after 21 weeks; an additional four percent took place after 15 weeks. More than half of the five percent of women who have abortions beyond 15 weeks of gestation say they delayed the procedure because they had trouble finding or paying for the services. The rest cite personal medical reasons like diabetes, or say they discovered problems such as extreme fetal malformation later in the pregnancy.
Without the threat of a presidential veto, House Republicans have launched a coordinated campaign to impose further restrictions on abortion:
-Last month, the House Judiciary Committee heard testimony on a bill that would punish people who harm a fetus during an assault on a pregnant woman. The proposal, known as the Unborn Victims of Violence Act, would make it a federal crime to injure or kill a fertilized egg, embryo, or fetus during an attack. Abortion-rights supporters view the bill as a step toward declaring separate, legal status for a fetus and ultimately outlawing abortion.
-Representatives such as Richard Armey (R-Texas) and Christopher Smith (RNew Jersey) plan to reintroduce legislation that would prohibit "partial-birth abortion" procedures, despite the fact that "post-viability" bans already exist in 41 states, including Massachusetts. (These laws often ban abortion after 24 weeks of pregnancy except when a woman's life is endangered; the nine states without "post-viability" bans tend to have other procedure bans that limit late-term abortions.)
-House Republicans expect to push for limitations on who can administer the "abortion pill" RU-486, or mifepristone, which the federal Food and Drug Administration (FDA) approved last fall.
-Another anti-abortion measure, known as the Teen Endangerment Act, would make it a federal crime for anyone except a parent to transport a minor across state lines to obtain abortion services rather than abide by her home state's parental-consent requirements. According to the American Civil Liberties Union, one-third of teenagers who do not tell their parents about a pregnancy are also victims of parental violence -- physical or sexual -- and fear the news will prompt abuse.
-Representatives such as Lindsey Graham (RSouth Carolina) and Tom DeLay (R-Texas) have hinted that they will add abortion language to spending bills -- for example, imposing parental-consent requirements on federal family-planning funding.
Beyond these legislative assaults, Bush has appointed not only a pro-life attorney general, but also a pro-life secretary for health and human services. Attorney General John Ashcroft has made a career out of opposing abortion, even in instances of rape, incest, and risk to a woman's life. While serving as a US senator from 1995 to 2000, the Missouri politician penned legislation providing fetuses with constitutional protections. He sponsored the controversial partial-birth-abortion ban that Clinton subsequently vetoed in 2000. And in 1999, he supported a Missouri ban passed by that state's legislature (and later vetoed by its governor) that would have imposed second-degree-murder charges on women who have abortions, with penalties that included life imprisonment.
Now that Ashcroft has become the country's lead attorney, he could make a lasting impression on women's reproductive rights. As attorney general, he has the power to enforce -- or not -- those laws safeguarding abortion providers from violence. He has sole discretion over which cases are filed by the government with the Supreme Court -- cases that could challenge the precedent established in Roe v. Wade. And if the past is any guide, he will be the president's top adviser on nominations to the federal judiciary, from the Supreme Court on down.
That an extremist like Ashcroft has this much power terrifies pro-choice activists. Explains Boston NOW president Andrea Lee, "Here is a person in a position of incredible authority who wants to take away abortion completely. It's hard not to feel threatened."
Health and Human Services Secretary Tommy Thompson takes a more moderate position on abortion. Still, the former Wisconsin governor has backed restrictions on the procedure, as well as on contraceptives -- stances that aren't especially encouraging given that Thompson oversees the FDA. He has already indicated his intent to reopen the issue of RU-486, even though the FDA spent more than a decade investigating the drug before approving it.
Despite Bush's actions thus far, some Republican insiders doubt he would actually lead the charge on the abortion front. Marshall Whittmann, who works at the Washington, DCbased Hudson Institute, a moderately conservative think tank, maintains that Bush will approach this issue gingerly because, he says, "it will divide the Republican coalition." Religious conservatives -- who vehemently oppose abortion -- constitute as much as 30 percent of the Republican Party. Yet Whittmann notes that the party's "big givers" -- those who are fiscally conservative yet socially moderate -- are overwhelmingly pro-choice.
Given these divisions, Bush's actions make political sense. "He must keep his base content," Whittmann explains, "and he has done so in the cheapest way." Because the current gag rule doesn't affect American women, for example, the president has managed not to anger his pro-choice backers. "This is a pro-life administration," he concludes, "but hysteria is not warranted."
Even so, Bush has wasted no time making his pro-life position perfectly plain, telling abortion opponents January 22 that his goal "will lead us onward to build a culture of life," in which abortions are rare. For pro-life activists, these were the words of a friend, in marked contrast to someone like Clinton -- who often spoke of keeping abortion "safe, legal, and rare." Dan Avila of the Massachusetts Catholic Conference admits that he and his colleagues cannot help feeling heartened by the election of a president who shares their views. Adds Avila, "Those who say there's no difference between the present and past administrations fail to recognize all an administration can do. That Bush is pro-life will certainly benefit us."
THE LAST TIME the landmark Roe decision came under fire was back in 1992, when the Supreme Court heard Planned Parenthood v. Casey. In that case, the Court forever changed the definition of a woman's constitutional right to an abortion; it allowed states to enact restrictions on abortion so long as they do not place an "undue burden" on women's access. Experts say the Court isn't likely to rule on a case involving Roe until Bush is able to replace a pro-Roe justice with an anti-Roe successor. And Roe isn't in jeopardy of being overturned unless two pro-Roe justices are replaced by two who oppose the decision.
In the 28 years since Roe, the Court has heard about two dozen cases dealing with abortion, says Tom Jipping, who directs the Center for Law and Democracy at the conservative Free Congress Foundation in Washington, DC. Yet no more than three have dealt with the core protections outlined in Roe. In the first two cases -- the 1986 Thornburgh and the 1989 Webster decisions -- the Court failed to address Roe at all. It wasn't until the 1992 Casey case -- 19 years after Roe -- that justices mentioned the legal rights established in 1973. Since then, Jipping explains, not one case has addressed the heart of Roe -- that is, whether the decision is consistent with the US Constitution.
Right now, the country's highest court narrowly favors legal abortion, with a six-to-three pro-Roe majority. But three of the nine justices -- Antonin Scalia, Clarence Thomas, and Chief Justice William Rehnquist -- adamantly oppose the 1973 ruling. (Rehnquist, who has served on the Court since 1972, dissented in the original case.) And two of the six justices who support Roe -- Sandra Day O'Connor and Anthony Kennedy -- have taken a notably ambivalent stance. Both sided with their anti-Roe colleagues in the Casey decision, for instance, but would not support overturning Roe.
Explains Wendy Parmet, a Northeastern University professor who teaches constitutional law, "The balance on the Court is very delicate.... All you need to tip the scales is a slight change in the [Court's] composition."
That, of course, worries pro-choice advocates the most. At least two Supreme Court justices, John Paul Stevens, 80, and Rehnquist, 76, are widely expected to step down within the next four years. A previous bout with breast cancer has made O'Connor a likely candidate to retire as well. Indeed, pro-choice advocates believe O'Connor could do just that as soon as the current judicial session ends this July. Throughout the presidential campaign, Bush held up the avidly anti-Roe Scalia and Thomas as examples of the kind of justice he'd appoint. If both Stevens and O'Connor stepped down and were replaced with strict anti-Roe justices, that would give the Court enough votes to overturn the law.
Rosemary Dempsey of the Center for Reproductive Law and Policy (CRLP), in Washington, DC, maintains that the addition of even one more anti-Roe judge could easily jeopardize existing legal protections because "what started out as a strong decision for the right to abortion has become far more neutral in its language."
Activists like Lee hold out little hope that even pro-choice Democrats and Republicans in the Senate would stand firm against a regressive judicial appointment. Look what happened with the recent Ashcroft nomination: 42 Democratic senators put up a decent fight by voting against the ultra-conservative attorney general, but 58 of their colleagues -- nine pro-choice Democrats, as well as their Republican counterparts -- voted to confirm him. The Ashcroft vote shows that where one stands on abortion is often a question less of party identity than of constituent approval. Says NOW president Patricia Ireland, "I'm particularly worried about the Southern senators who carry the Democratic card but view their constituencies as pro-life. Why would they block an anti-choice judicial nominee?"
Abortion-rights advocates identify another problem as well. Those senators upon whom the pro-choice movement relies, including Massachusetts senators Ted Kennedy and John Kerry, might hold the line were Bush to put forth an outspoken anti-choice zealot. But what would happen if they had to go through the nomination process twice? If facing a second, more moderate candidate -- someone like, say, Anthony Kennedy or David Souter -- liberal senators could come across as obstructionist for sounding the alarm again.
Parmet sums up the thought best: "There are lots of milquetoast-looking and -sounding conservatives. I don't think the Senate would balk at somebody who privately opposes Roe, yet takes a less controversial public stance."
Although Jipping points out that no abortion cases dealing with the constitutionality of Roe are now wending their way through the federal courts, that could change quickly with an anti-Roe majority. Dempsey, of the CRLP, has no doubt that an anti-Roe majority of five would prompt an anti-abortion state like Nebraska to reintroduce its partial-birth-abortion ban, which was struck down last year. In that case, Stenberg v. Carhart, the Supreme Court invalidated the Nebraska legislation because it prohibited not just one procedure, but an array of common and safe methods. The Court also ruled that the law didn't make appropriate exceptions for a woman's health.
With an anti-Roe majority on the Court, however, Nebraska -- and as many as 29 other states with similar bans in the pipelines -- could rewrite the legislation so that it outright prohibits a certain type of procedure after, say, 20 weeks of pregnancy. Or it could flat-out specify that a woman can have this type of procedure only if she faces death going into delivery. "I would bet that piece of legislation makes its way through the state legislature and before the courts in no time were anti-Roe justices appointed," Dempsey says. She adds, "An anti-Roe majority could uphold [such] legislation. That would basically mean that you don't have a right to an abortion at all."
Ultimately, though, some observers doubt the Supreme Court would overturn a precedent with as much public salience as Roe -- regardless of whether it achieves an anti-Roe majority. Boston University professor Kenneth Simons, who teaches constitutional law, notes that the Court rarely falls out of step with popular opinion. "The Court pays attention to public sentiment," he says. And this, he adds, explains its more recent decisions allowing for restrictions on abortion. A January report by the Gallup Organization, for example, shows that the percentage of people who want abortion outlawed has remained between 17 and 19 percent. Yet only 28 percent of people believe that abortion should remain legal in all circumstances, while 51 percent support the procedure sometimes. Concludes Simons, "The court is close to the middle position on what many people believe about abortion."
Given public attitudes, he speculates, "the Court will likely allow more and more restrictions on abortion. But until people want to forbid abortions, the Supreme Court is unlikely to overrule Roe entirely."
THAT SAID, there's no question that women's reproductive rights in this country remain in serious jeopardy. They've been eroding slowly yet significantly ever since Roe was decided. Parmet, of Northeastern, puts it more bluntly: "The right to abortion doesn't mean what it did in 1973 at all. Given [later cases], one could say in all honesty that Roe v. Wade has already been overruled." The point is highlighted by the fact that over the past six years, Congress has voted 134 times on reproductive-health issues. Pro-choice advocates have lost all but 24 times.
And even if Roe isn't overturned, legislative restrictions on abortion -- mandatory waiting periods, mandatory consent requirements, counseling bans -- can eliminate abortion just as effectively. Even seemingly innocuous regulations like a mandated 24-hour waiting period can prove onerous.
Or consider the parental-consent requirement. If a teen doesn't wish to tell her parents that she's pregnant, the legislation forces her to navigate the courts seeking a judicial bypass. That requires the teen to find a lawyer, then go before a judge requesting a waiver. In short, the restriction sets up hoop after hoop that may encourage teens to carry unwanted pregnancies to term. As NOW's Lee notes, "The goal of [anti-choice] lawmakers is to make sure women don't have abortions. You don't need to overturn Roe to do that."
The fact that so many legislative restrictions have passed -- most without banner headlines -- illustrates how wily pro-life advocates have grown. They've learned they cannot shove radical change down people's throats, but that if they keep patient, they can quietly chip away at reproductive rights until Roe looks like what Chief Justice Rehnquist calls "the storefronts on a Western movie set, just a façade." James Nuzzo, a Boston-based Republican consultant, says pro-life Republicans realize that a frontal assault on Roe is counterproductive. "People recognize that to change the climate toward the unborn they must change hearts and minds," he adds. "They know to address abortion in an incremental fashion, then wait for the culture to catch up."
In the meantime, though, pro-life forces continue to chip -- much as a sculptor chisels away at a block of marble. What they are creating is hard to discern, because the image is taking shape so slowly. But when the pro-lifers do put down their tools, chances are abortion-rights supporters won't like what they see.
Yet Bush's surprisingly early and extreme attacks on abortion rights may end up being a timely blessing in disguise. It may be just the wake-up call pro-choice advocates need to rouse supporters from eight years of complacency and to mobilize against the steady gains made by their opponents during the Clinton years. Maybe now, as Mass NARAL president Melissa Kogut says, "people will finally get it: there's a lot at stake when it comes to reproductive choice."
Next week the House is scheduled to hold its first anti-choice vote of the year -- a bill written with the assistance of the National Right to Life Committee that would be the first federal law to recognize a fetus at any stage of development as an independent "victim" of a crime. Join the ACLU in opposing covert attacks on reproductive freedom.