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Wednesday, November 30, 2005

The Waning Power of Roe v. Wade

November 29, 2005

The Waning Power of Roe v. Wade

Although the landmark ruling survives, the right to abortion has been steadily eroding.

by Dorothy Samuels

A lot has happened since January 22, 1973, when the Supreme Court handed down Roe v. Wade, its momentous 7-to-2 decision that recognized a woman's constitutional right to make her own child-bearing decisions and legalized abortion nationwide. The cold war ended, and so did apartheid in South Africa. E-mail, cell phones, iPods and Diet Coke appeared. There have been six new presidents in the White House, including two named George Bush.

Yet for all that has happened in the nearly 33 years since the court declared that the constitutional right of personal privacy includes the abortion decision, one thing hasn't changed: America remains locked in a bitter and seemingly never-ending battle over abortion. Even though polls show that a healthy majority of Americans still support Roe's essential holding, three decades of clinic violence and relentless harassment, combined with strategic court challenges and muscular political action by anti-choice forces have taken a serious toll.

Technically, Roe v. Wade still stands. But for the moment, at least, its well-organized and well-funded opponents are winning the ground war.

Thanks in large part to Justice Sandra Day O'Connor, the practical-minded conservative jurist whom Judge Samuel Alito, Jr. has been nominated to replace, Roe v. Wade's core holding, placing the abortion decision in the hands of women and their doctors up until fetal viability, remains the law of the land. But wide-ranging restrictions and dwindling access to safe and legal abortion services is rendering reproductive rights merely theoretical for a growing number of women around the country - especially those who are poor, young, or live in rural areas.

Incrementally, and largely under the national radar, formidable obstacles have been placed in the way of women trying to access abortion services. As a result, the fundamental right the Roe decision supposedly protects is progressively disappearing in much of the nation.

Among the most significant roadblocks:

• A shortage of trained doctors and health care facilities offering abortion services.

• Mandatory waiting periods and demeaning state-scripted "counseling" sessions that lack a real medical justification and sometimes require two clinic trips on separate days, creating a special hardship for poor women who lack transportation to easily make multiple clinic visits, and who live in areas without a nearby abortion provider.

• Parental notification and consent laws that are supposed to improve family communication but actually serve to jeopardize the health and well-being of frightened young women, including victims of incest and other abuse who have good reason not to inform the adults in their life.

• Longstanding restrictions on the use of Medicaid, and other government money, to help women pay for abortions.

• So-called "TRAP laws," which single out abortion providers for onerous and expensive "safety" rules enacted for the purpose of harassing existing providers, and deterring the development of new providers.

The driving force behind these restrictions has been state legislatures, which have enacted more than 400 measures restricting abortions in the last decade alone. But in November 2003, Congress passed the first federal ban on an abortion procedure - an only slightly modified version of Nebraska's "partial birth" ban the Supreme Court rightly struck down just three years before, with Justice O'Connor casting the deciding vote. The majority found that the broad and imprecise measure, which spawned copycat legislation in at least 30 states, could be read to ban the most common abortion procedure used after the first trimester, and also lacked the constitutionally-required exception to protect the health of the woman.

With Justice O'Connor about to leave the court, and anti-abortion Republicans holding the upper hand in the judicial nomination process, there has naturally been a lot of speculation about whether Roe v. Wade will survive. Roe's future is undeniably crucial. The situation for women seeking to terminate an unwanted pregnancy would be far worse if Justice O'Connor had not cast the crucial fifth vote in 1992 to save Roe from being overturned. A ruling directly toppling Roe would once again give states authority to ban abortion, and a detailed 2004 analysis by the Center for Reproductive Rights, a leading pro-choice legal advocacy group, suggests as many as 30 states would do so.

But the single-minded focus on Roe - and the tea-leaf reading about where Judge Alito really stands on it - is distracting from the even more immediate practical threat to women's reproductive freedom posed by the rapidly spreading web of anti-choice restrictions and regulations. There has been a stealthy backdoor repeal of Roe underway for years. As Judge Alito's confirmation hearing draws closer, the discussion of Roe's future should broaden into one about the whole array of ways in which abortion rights are under assault.

I. What Roe v. Wade Established

Although Roe is a famous case, its precise holding is not well understood. The court struck down a Texas law that made most abortions illegal. But it neither endorsed abortion nor closed its eyes to the profound nature of the abortion decision or "the deep and seemingly absolute convictions that the subject inspires." What the court actually did was to strike an astute constitutional compromise: the Roe decision declared that a woman's right to choose whether to terminate her pregnancy is a fundamental liberty interest but that it must be balanced against the fetus's growing potential for life.

To establish a framework for evaluating abortion restrictions, the decision divided pregnancy into three trimesters, and delineated the degree of allowable regulation during each. In the first trimester, the court left the abortion decision solely to a woman and her doctor. In the second trimester, the decision permitted state regulations that were narrowly tailored to promote the health of the woman. In the third trimester - the point at which the fetus becomes viable outside the mother's womb - the decision recognized the state's authority to impose regulations to protect the fetus, or even ban abortion, provided exceptions were made to protect the life and health of the woman.

It has become fashionable, even among self-proclaimed supporters of abortion rights, to bash Roe v. Wade, and its author, Justice Harry Blackman, for unwarranted "judicial activism" and "legislating from the bench." These critics fault the Roe majority for inventing a new privacy right found nowhere in the Constitution, and using it to overturn abortion restrictions in 46 states. According to many critics, Roe was also a strategic mistake, truncating a percolating debate in state legislatures nationwide that would have ended criminal restrictions on abortion by democratic vote instead of judicial fiat.

These criticisms make for pithy sound bites, but they don't hold up. It's true that dividing pregnancy into three stages and coming up with different levels of permissible regulations for each may have given the decision a legislative feel. But courts engage in this sort of line-drawing all the time. The trimester framework made concrete Roe's sensible balance between the right of women to control their bodies and government's legitimate interest in protecting potential life. The decision recognized that the government's interest increases as a pregnancy proceeds, but prevented government from imposing abortion restrictions prior to viability, except to protect a woman's health, thereby preserving meaningful reproductive choice. That's a far better approach than allowing government to smother the abortion option with needless regulation starting in the earliest weeks of pregnancy, as subsequent abortion rulings have done.

Wrong as well is the claim that the court engaged in unwarranted judicial activism when it grounded Roe v. Wade in a constitutional right to privacy "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The ruling is not perfect: Justice Blackmun, who served as general counsel to Minnesota's renowned Mayo Clinic before becoming a judge, may have been better at articulating the harm done by interfering with a doctor's ability to administer medical treatment than the harm inflicted on the woman. But Roe's conclusion that a woman's right to decide whether to become a parent deserves the highest level of constitutional protection required no giant jurisprudential leap. The Roe ruling flowed naturally from a line of previous privacy decisions that protected certain intimate personal decisions from government interference. The most notable of these, the 1965 case, Griswold v. Connecticut, struck down a statute that made it a crime for married couples to use birth control.

Ruth Bader Ginsburg, who did much to advance the legal rights of women as a lawyer bringing test cases in the 1970's, suggested in a well-publicized 1993 lecture at New York University Law School that Roe would have been more persuasive had it been grounded on the argument that abortion bans violate the 14th Amendment's equal protection clause. Her point, that the inability of women to control their reproductive destiny prevents them from participating as equals in the nation's political, social, and economic life, is a sound one, and Justice Blackmun and other pro-choice justices eventually came to embrace it. Upon his retirement in 1994, Justice Blackmun aptly described his much-beloved and much-reviled ruling in Roe as a necessary step toward "the full emancipation of women." But for the court to have relied on that equality claim way back in 1973 would have meant propelling the court's equal protection approach to a whole new level. Lawyerly and professorial objections aside, the offense to women's dignity and privacy inherent in laws prohibiting abortion in the first phases of pregnancy, is something most people, women in particular, seem to get.

Critics of Roe's reasoning but not its legal outcome - including Justice Ginsburg - have also wondered aloud whether abortion rights would be more secure today if the decision had been less expansive, giving state legislatures more time to liberalize abortion laws on their own. The extent to which courts should defer to elected legislatures on emerging rights issues is an interesting question. But any suggestion that Roe short-circuited a political process that was moving apace to end the criminalization of abortion is wildly inaccurate. As my New York Times colleague Linda Greenhouse recounts in her recent book, "Becoming Justice Blackmun," when the court took up Roe v. Wade, "(f)our states - New York, Washington, Alaska, and Hawaii - had repealed all criminal penalties for abortions performed by licensed doctors, up to specified points in pregnancy. Thirteen other states had passed 'reform' laws, expanding the circumstances under which abortion was permissible. But thirty-three states continued to outlaw nearly all abortions; in many of these states, there was little prospect for change." Had the Supreme Court waited for the states to act, in other words, we would probably still be waiting.

The New York experience is telling. Three years before Roe v. Wade, in 1970, New York became the second state to legalize abortion, following on the heels of Hawaii, which repealed its criminal abortion law earlier that same year. But even in "liberal" New York, overcoming the heavy opposition, much of it from the Catholic Church, wasn't easy. The bill that Governor Nelson Rockefeller signed into law cleared the state Assembly by just a single vote. Two years later, after the upstate Republican who cast that decisive vote was defeated for re-election, the Legislature approved a partial repeal of the state's enlightened new abortion law, which was stopped from going into effect only by a gubernatorial veto. Nationally, whatever momentum there was toward meaningful abortion law reform seemed to quickly peter out. Between 1971 and 1973, the year of Roe v. Wade, not a single additional state moved to repeal its criminal prohibition on abortion early in pregnancy. This was noted by the prominent constitutional scholar, Laurence Tribe of Harvard Law School, in his 1990 book, "Abortion: The Clash of Absolutes." "There is little evidence," Professor Tribe concluded, "that the United States was on the verge of emerging, in the early 1970's, from the long shadow of shame that had branded women as blameworthy for extramarital sex and nonprocreative sex and that condemned them for choosing abortion even when the choice was a painful and profoundly reluctant one."

On a more philosophical level, there are some issues that should not be left in the political arena, to be decided with finality by a majority vote. A woman's right to decide whether to terminate her pregnancy in the earliest phases is surely one of them. The recognition of basic rights - such as the right to control one's reproductive choices - should not be a popularity contest.

II. Justice O'Connor's 'Undue Burden,' and the Erosion of Roe

Roe v. Wade established a single national standard making abortion legal, But it also accelerated the abortion wars.

Opponents of Roe turned to Congress, but met with only limited success. Their efforts to get a constitutional amendment declaring that human life begins at conception failed. So did their campaign for a dangerous court-stripping plan, which sought to take away the federal courts' power to strike down state abortion restrictions. Anti-choice forces did, however, get new prohibitions passed on the use of federal money to pay for abortions, which create severe hardships for poor women to this day.

Anti-abortion groups became even more energetic at the state level. The political and religious right joined forces to push through a succession of state limitations aimed at making it harder for women to obtain an abortion, and serving up test cases they hoped would lead to the overturning of Roe. The court, its membership now changed from the bench that decided Roe, rejected some of these restrictions, but it approved others, on the fictional ground that they did not significantly interfere with the woman's choice.

These rulings, culminating with the court's splintered 1989 decision upholding Missouri's aggressive attempt to restrict abortion in Webster v. Reproductive Health Services, fueled concerns that there was no longer a court majority that favored keeping Roe intact. When a closely-divided court issued its much-anticipated 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, supporters of reproductive freedom breathed a sigh of relief. The decision, co-written by Justice O'Connor, sustained Roe's core holding that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."

But buried in the victory were seeds of defeat. The Casey majority sustained Roe's bottom line, but, alas, not its overall approach.

The Casey decision abandoned Roe's trimester framework. Instead, it told states they could impose restrictions throughout a pregnancy so long as they do not impose an "undue burden" on women seeking an abortion. In making this change, the 5-to-4 majority significantly watered down the constitutional protection afforded women's private reproductive decisions.

In practice, the "undue burden" test crafted by Justice O'Connor has invited states to come up with ever more creative schemes to impede the exercise of the abortion right with needless regulation beginning in the earliest weeks of pregnancy, delaying abortions and increasing medical risks for many women, foreclosing abortion choice entirely for others.

In Casey itself, for example, the Supreme Court upheld Pennsylvania's requirement that a physician must provide a woman with state-scripted information about abortion 24-hours in advance of a non-emergency abortion. To a majority of justices, the rule's insulting assumption about women's decision-making and its interference with physicians' professional judgment sounded benign. But forcing overburdened physicians to provide biased "counseling" drives up abortion costs, turns physicians into propagandists for the state while making them less willing to perform abortions, and, overall, contributes to the isolation and unfair stigmatization of women seeking vital reproductive health care.

By upholding Pennsylvania's restrictions, the court sent a clear message to anti-abortion forces: if they got abortion restrictions passed at the state level, there was a good chance those restrictions would survive constitutional challenge.

III. Chipping Away at Abortion Rights, State by State

Opponents of abortion took up the Casey court’s invitation. They increased their activity at the state level, accelerating their push for restrictions that would erode abortion rights to varying degrees, but that lawyers could argue did not impose an “undue burden.” The accumulated impact of all these efforts, which show no sign of letting up, is now being felt in many states. For example, in addition to the three decades old federal prohibition that prevents federal Medicaid funding of nearly all abortions for low-income women, 11 states now restrict abortion coverage in insurance plans for public employees. Rules in 4 states limit abortion coverage by private insurance plans to cases in which carrying the pregnancy to term would endanger the woman’s life, although those who can afford it are free to purchase additional coverage for non-emergency abortions. At this point, 43 states have enacted some form of parental involvement law, requiring either parental consent or notice before a minor obtains an abortion. Fully nine of these laws including the New Hampshire parental consent statute that is the subject of a major test case now pending before the Supreme Court have been enjoined by courts, and presently are not being enforced, owing either to their purposeful omission of an adequate exception to protect a minor’s health or because of state constitutional issues.

Some 31 states mandate that women receive "counseling" before an abortion, and 18 of them specify how the slanted, and oft-times inaccurate or misleading information designed to dissuade women from having an abortion is to be delivered. In 23 of the states requiring abortion "counseling", women are required to wait a specified period of time after the session - most often 24 hours - before getting the procedure. Greatly compounding the hardship these rules create for women, 6 states deter women from exercising their right of choice by requiring that the "counseling" be provided in person instead of by phone or over the Internet, thereby insuring that women must make two clinic visits before having the procedure.

Meanwhile, more than a dozen states are currently enforcing regulatory schemes - so-called TRAP laws - singling out abortion doctors and clinics for overly-stringent regulation. In a scary new initiative, anti-abortion strategists have begun reviving an abusive tactic from the past - deploying health inspectors to abortion clinics to review and copy unredacted medical files containing highly personal details of patients' histories without any apparent valid regulatory justification.

The early evidence suggests that these sort of barriers have done just what their drafters intended - impeded women from getting abortions. For example, in a 2001 challenge to an Indiana law requiring medical personnel to deliver state-mandated information on abortion "in the presence" of pregnant women at least 18 hours before an abortion, the federal trial judge found the law effectively blocked approximately 10 to 13 percent of Indiana women who wanted abortions from obtaining them. A 1997 article in the Journal of the American Medical Association cited by the judge reported on the impact of a Mississippi law that required pregnant women make at least two clinic visits before obtaining an abortion. It found that the total rate of abortion for residents of Mississippi, the nation's poorest state, decreased by approximately 16 percent in the first year after the law took effect. Because of the delays it created, the proportion of Mississippi abortions that occurred second trimester increased by about 40 percent. A 2-to-1 ruling by a federal appeals panel subsequently reversed the trial court's rejection of the in-person counseling requirement, but without persuasively countering the factual reality of its "undue burden."

IV. The Scary Mississippi Model

For people residing in blue states, with pro-choice legislative majorities, the threat posed by anti-abortion forces may seem remote. But in states where abortion rights enjoy less political support, women's right to control their reproductive choices are only what the courts say they are. Even with Roe still the law of the land, the situations in these states is not good. Consider the bleak terrain for women confronting an unwanted pregnancy today in Mississippi, the subject of "The Last Abortion Clinic," a valuable documentary by Raney Aronson-Rath that aired recently on P.B.S.

By piling restriction upon restriction, Mississippi has all but outlawed abortion in the state. Today, Mississippi currently has just one functioning abortion clinic, down from six just a decade ago. Even that clinic's survival is now in jeopardy.

Making matters worse, many of Mississippi's anti-abortion extremists also oppose birth control. Their activism is inflicting a cruel double-whammy on impoverished women who are denied access both to abortion services and to the contraceptives they need to avoid become pregnant in the first place - a situation hardly unique to Mississippi, unfortunately.

Meanwhile, other states are seeking to follow Mississippi's legislative lead. And bad as things are in Mississippi, some parts of the country have gone even further to promote a "culture of life" that pays no heed to the negative impact for women's health and lives when reproductive choice is severely encumbered or denied. According to a 2004 ranking of the states by a leading anti-abortion legal advocacy group, Americans United for Life, three states are ahead of Mississippi when it comes to implementing abortion restrictions and a range of other anti-abortion measures.

V. The Future of the Constitutional Right

There has been a lot of discussion already about whether Judge Alito would vote to overturn Roe v. Wade - a goal he explicitly embraced in a memo he wrote 20 years ago and there will be no doubt be more when his confirmation hearings begin in January. His position on Roe is important. But replacing Justice O'Connor with an anti-Roe justice should still leave at least five votes in support of letting Roe stand. The more urgent concern raised by Judge Alito's nomination is that he could join with other conservatives on the court to continue to poke holes in the right to abortion, further weakening Roe without formally discarding it.

Opponents of abortion rights have become adept at passing laws that are progressively narrowing the right to abortion in America. On Nov. 23, the Indiana Supreme Court upheld in its entirety the state's waiting-period law that will, like others around the country, make it incrementally more difficult for many women to exercise their reproductive rights.

The effort to eliminate abortion rights by regulation and restriction has already progressed too far, and there are cases heading toward the court's docket that will give Justice O'Connor's replacement plenty of opportunity to make things substantially worse. What the court needs is a Justice who will prevent abortion rights from eroding any further. Judge Alito's record contains strong hints he is not that person - including his vote as a federal appellate judge that a provision requiring an adult woman to notify her husband before obtaining an abortion posed no problem under the court's "undue burden" standard.

When senators question Judge Alito, they should try to determine whether he would vote to uphold Roe v. Wade, but that should only be the beginning of their inquiry about his abortion views. Even if he votes to keep Roe, he will have plenty of opportunity to erode women's ability to control their reproductive destiny, one decision at a time.

It's regrettable that the country is facing yet another confirmation proceeding dominated by the issue of abortion. The time and energy both sides spend brawling over abortion rights would be much better spent working on an effective common agenda to reduce unwanted pregnancies. But the primary fault here lies not with abortion rights supporters, but with the vocal and tenacious minority on the other side who still refuse to bow to the legitimacy of Roe's wise compromise, and who believe their personal moral opposition to abortion gives them a mandate to try to shut down abortion access locally and pack the Supreme Court with anti-abortion justices in order to deny that option to others.

Attempting to turn back the clock to the days of dangerous back alley abortions, and deny women the reproductive freedom essential to their full participation in the nation's civic life is a moral issue, too. Not to mention an undue burden.

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