Alibi V.13 No.4 • Jan 22-28, 2004 

Feature

Roe v. Wade

The state of the 31-year-old Supreme Court ruling and Albuquerque's political climate

This week marks the 31st year abortion has been legal in this country. The 1973 Supreme Court Roe v. Wade ruling legalized abortion and continues to protect the procedure. And over the past three decades, the debate over reproductive rights has grown increasingly complex. Anti-choice groups see abortion as an abomination and murder of a fetus they see as having the same Constitutional rights as anyone else. Pro-choice groups follow the medical definition of a fetus—that it is not yet a person—and say abortion should be a safe and legal option for women who have the right to choose what they do with their bodies. Both sides of the argument will take notice of the anniversary this week.

Today, the ruling is fragile at best. Current conservative political leaders, led by President Bush, want to overturn the ruling, which was twice protected during former President Bill Clinton's administration.

About 1.3 million abortions are performed nationally every year, according to the Kaiser Foundation. That's the lowest rate in 29 years. About 6,000 are performed annually in New Mexico. Half of these are performed on women ages 20-29. That same age group is also in the majority nationally, with about 424,000 abortions annually. The second-largest age group nationally is women ages 30-39. In New Mexico, abortions are performed in slightly greater numbers on teenagers than women 30-39.

But after 31 years, how could Roe v. Wade be threatened? If President Bush is re-elected, he will most likely have the chance to appoint at least one Supreme Court justice. The court's lineup has not changed in nine years, but three justices are in their 70s and one, Justice John Paul Stevens, is 83. If Bush has the chance, he will likely appoint an anti-choice justice, possibly making a majority of the court anti-choice as well. This creates a potential for Roe v. Wade to be overturned.

Currently, the court's attitude is divided. Chief Justice William Rehnquist, appointed by Nixon, and Justices Antonin Scalia, appointed by Reagan, and Clarence Thomas, appointed by Bush Sr., all have anti-choice voting records. Justices Stevens, appointed by Ford, Ruth Bader Ginsburg and Stephen Breyer, both appointed by Clinton, have pro-choice voting records.

Justices Anthony Kennedy, appointed by Reagan; and David Souter, appointed by Bush Sr. have mixed voting records. But Justice Sandra Day O'Connor, appointed by Reagan, is considered the real “swing vote” because hers is most likely the one to uphold the Roe v. Wade ruling should the case be heard again by current sitting justices.

Reproductive rights are nearly as shaky as they were before the 1973 ruling, thanks to the slow slide to the right in American politics. With Republicans controlling Congress and the White House, a barrage of anti-choice legislation is expected. The debate is growing increasingly complex, and you should be informed about what both sides of the abortion debate are saying. In an effort to present both sides of the debate, we posed the same set of questions to representatives from four of the most vocal anti- and pro-choice groups in the nation.

The Opponents

In the eyes of anti-choice leaders, the battle over reproductive rights is just beginning—even though it's been 31 years since the monumental Supreme Court ruling referred to as Roe v. Wade. Opponents see the decision as an affront to the Constitution, their religious beliefs and the role of the government to constitutionally guarantee the right to life, along with liberty and the pursuit of happiness.

Right to Life Commitee of New Mexico is one of the oldest anti-choice groups in the country and existed before there was a national Right to Life organization. Their goal is to inform the public about “the horrors of abortion, infanticide and euthanasia,” says Dauneen Dolce, executive director of the state organization and New Mexico delegate to Right to Life's national board of directors. She's been fighting on this issue since 1970. When we spoke, she was in Clovis where she had just completed the formation of a new Curry County Right to Life chapter. She has also recently started chapters in Quay County, where Tucumcari is located, and Lea County, where Hobbs is located.

The group focuses mainly on getting its message out to the public. Its political action committee endorses anti-choice candidates and lobbies for anti-choice issues, Dolce says, adding that the national Right to Life organization is the largest grassroots group lobbying on this issue.

Dolce is Right to Life's lobbyist at the state capitol and rattles off Sen. Pete Domenici's name who, she says, has spoken at and attended dinners given by the organization.

And Dolce, who calls fetuses “little tiny babies,” is quick to note that her organization does not hold protests. “It's not in our by-laws to break the law,” she says. “We may have rallies in support of something, but we don't picket.”

By contrast, Focus on the Family tries to sway public opinion through media instead of lobbying politicians.

“We're vocal in the culture as a non-profit Christian ministry dedicated to supporting families,” says Carrie Gordon Earll, senior policy analyst for bioethics at Focus on the Family.

The organization publishes magazines and produces radio broadcasts to disseminate its opinion. Focus on Family's anti-choice message is as staunch as that of Right to Life.

“We see abortion as being detrimental to women and to families and we're concerned with the impact it has on the country,” Earll says. In her opinion, an abortion causes long-lasting negative effects on a woman's mental health—information she says is being kept from the public by pro-choice groups.

“It's just not good for a woman to kill her children, to be blunt,” Earll says. “And it has a very harsh impact on the relationship between the woman and the father of her baby.”

But even among staunch anti-choice groups such as these there are divisions. Right to Life opposes abortion unless the procedure is necessary to save the life of the mother. “Not for incest or rape because if you encourage it for that, then you're asking the woman to do something worse than what has happened to her,” Dolce says. “Why, if you've been raped, destroy an innocent human life?”

Focus on the Family, on the other hand, believes there is no reason to justify abortion in any instance.

“The life of the mother is a rare case, if ever,” Earll says. “But in reality, all human life is valuable, so no, we would not support an exception in any case.”

But Focus on the Family realizes this will probably never happen, Earll says, and is willing to bend and accept abortions if some restrictions are met. A woman would be required to look at the fetus growing inside of her using the latest high-tech ultrasound (“You know, like the ones used in those commercials, where it's a happy, loving couple looking at the picture.” Earll says.) and wait 24 hours following a consultation to “think about” the procedure. Earll also wants “medically accurate” counseling and literature outlining alternatives to abortion provided to the woman. Only then, she says, would she be able to begin to accept abortion.

“I'd lobby for that in a second,” she says. “It makes information available to the woman—not in a condescending way, but just available. If we're talking choice, let's make it a true choice.”

Both organizations believe the ruling interferes with the U.S. Constitution.

“Roe v. Wade was unconstitutional because our Constitution was based on the Declaration of Independence, which says all men are created equal with a right to life, liberty and happiness,” Dolce says.

Both Earll and Dolce said they feel America is becoming more and more conservative and therefore ready to support a Roe v. Wade reversal.

“Socially and morally, the country continues to move toward an attitude that does not embrace abortion—Americans aren't happy with it,” Earll says. Some polls indicate that public opinion toward abortion is almost split evenly. But a Gallup poll taken last January showed that 57 percent of people polled felt abortion should be legal only under certain circumstances, such as rape, incest or if the mother's life is in danger. Twenty-four percent felt abortion should be completely legal, regardless of circumstances, and 18 percent felt it should be completely illegal.

“Abortion is being used as birth control and we're paying for it,” Dolce likewise says. “I think Americans are tired of it.”

And both Right to Life and Focus on the Family believe that a staunch anti-choice President like George W. Bush is the best chance they have at seeing that reversal happen. If Bush is re-elected, he will have the opportunity to replace at least one Supreme Court Justice. It is almost certain, they believe, that he will appoint an anti-choice justice, tipping the court's voting balance to the religious right and making it highly possible that Roe v. Wade will be overturned if it is brought in front of the court again.

In addition, Earll says, the president has continued to “use his office as a bullying pulpit (sic). He's addressing the importance of families,” she says.

Dolce says she feels victorious with the way things are going. “I know we're making progress,” she says. “And so does the opposition. Like with the partial birth abortion ban and requiring parental consent in most states, because where those things pass, you have [fewer abortions]. I don't think we're winning the war. I know it.”

“The politicians that are being elected?” she adds with a laugh, “I know it.”

The Proponents

The Roe v. Wade decision was, and continues to be, one of the greatest leaps in American willpower, an example of personal choice for both men and women and feminist resolve. The ruling, which recognized a woman's constitutional right to make for herself the difficult decisions of if and when to give birth, continues to protect the reproductive health of many women each year by allowing for safe and legal abortions.

Women in New Mexico are allowed greater reproductive freedom than in many states. Parental consent is not required for minors seeking an abortion, a 24-hour waiting period is not mandated and the state uses funds beyond the federal requirement to cover abortions, something less than half the states in this country do.

We spoke with two national groups, the National Abortion and Reproductive Rights Action League (NARAL) and Planned Parenthood, responsible for much of the pro-choice dialog in the country, along with the National Organization of Women (NOW.) And representatives from both groups agreed that even though the Roe v. Wade decision turns 31 years old this month, the ruling is fragile and threatens to be overturned in the current administration.

“It's very, very precariously positioned, because the current administration does not support a woman's right to choose,” says Michelle Featheringill, president and CEO of Planned Parenthood New Mexico.

“The appointment of just one anti-choice justice ... would be enough to overturn Roe v. Wade or gut it beyond recognition,” says Giovanna Rossi, executive director of NARAL Pro-Choice New Mexico. “The last time we went this long without a vacancy on the court, James Monroe lived in the White House.” It's a prospect Rossi says terrifies her.

But, she adds, an anti-choice Supreme Court would only speed up the slow and steady tearing down of the ruling. Anti-choice groups and politicians have already begun whittling away at it, she says. Bush has been quietly molding federal courts to be anti-choice by appointing ultra-conservative judges. Access to contraceptives has been gradually restricted in most states. Mandatory delays on abortion procedures have been implemented. According to Rossi, there have been 400 state restrictions on a woman's right to choose since 1995.

“When the American people understand what is at risk, they act on their pro-choice beliefs and vote to protect their rights. But when we are complacent, those who want to take away those rights take advantage of that complacency,” Rossi says.

Featheringill says the Bush administration and radical right-wing thinking have formed an “unholy alliance” that constantly works to chip away at the ruling. “It's just this constant nit-picking to try to diminish the rights that currently exist,” she says. “The problem is that those rights are so precariously positioned because Roe v. Wade is on the front burner of so many people's agendas.”

And if the ruling were overturned?

“We know too well what the implications are,” Rossi says. “Not very long ago, when abortion was a crime, women died.”

Featheringill says the prospect of an overruling makes her feel defensive and protective of younger women who will have to live in a country that doesn't trust a woman to decide for herself what she should do with such a private issue involving her body. “It would be an unbelievably bad thing,” she says. “I'm part of the older matriarch of the reproductive healthcare movement and we need to do a better job of engaging these young folks, because it's hard to believe something you've enjoyed all of your life could disappear.”

Featheringill says she couldn't imagine walking up to a 17-year-old on the street and informing her that she no longer has a right to a planned pregnancy or safe abortion. “She would look at me like I was crazy,” Feathergill says. “It's a right that she's lived with her whole life and now it can change.”

But, Featheringill says she wouldn't be satisfied even if she were guaranteed that the current reproductive rights were here to stay. “Would that be good enough? Probably not,” she says. “It's not a bad place to start, but nothing is ensured at this point. Until we can ensure that reproductive freedom for men and women is considered a human right and is not in jeopardy of being overturned, it's not in a good enough position.”

As for the anti-choice argument of constitutional infringement? Bogus, says Rossi. Not to mention patronizing. “The very premise of these laws—that women must be rescued by politicians from our apparent tendency to make impulsive and uninformed choices about pregnancy and child-bearing is insulting to all women,” she says.

So what can men and women do to ensure Roe v. Wade remains in effect in the future? The most immediate way to get involved is to vote for pro-choice legislators in the upcoming elections, Featheringill says.

Take a cue from the 1992 elections, Rossi says. Pundits said there was no way a pro-choice Democrat could beat an incumbent in the midst of wartime popularity. But Clinton was elected with a pro-choice stance and was credited with wooing swing voters.

“Our vision for a society in which every pregnancy is wanted, every child welcomed, every woman respected, is as close as our determination to build it, our willingness to maintain our vigilance, our commitment to knock on doors and cast votes and canvas neighborhoods,” Rossi says.

But whatever is done, it must be done quickly, Featheringill says, because the pendulum is swinging to the right on this issue.

“If Roe v. Wade is overturned, I think people may wake up,” she says. “But by then it would be after the fact—too late.”

The Timeline

To obtain a true understanding of Roe v. Wade and its implications, it's important that one understands that the fight over a woman's right to choose didn't begin 31 years ago with the ruling. The debate over women's reproductive rights has in fact been waged for almost 700 years.

1348: The Abortionist's Case helped establish the common law right to terminate a pregnancy at any time, including a fetus in the uterus.

1803: British Parliament passes a restrictive abortion statute—the first-ever limitation on the procedure. The law forbade using poison or any other harmful substance to “cause or procure” a miscarriage. The ruling began when the woman was “quick,” or when the baby began to move in the womb.

1828: American states follow suit and pass their own abortion restrictions with the proclaimed goal of saving the woman's life. Like the British law, this one only applied after the baby began to move.

1858: The New Jersey Supreme Court rules that they will be passing a law banning abortions not to prevent the abortion procedure, but to “guard the health and life of the mother.”

1915: Abortion becomes less dangerous than childbirth thanks to a surgical procedure developed by Joseph Lister. This renders the restrictions placed on abortion procedures no longer constitutionally valid, because the procedure is now different. Women are now forced to choose the statistically more dangerous option of childbirth.

1962: Sherri Finkbine learns that a drug she has taken during her pregnancy, thalidomide, could deform a developing fetus. She arranges for an abortion in Arizona, but clergy forces the hospital to withdraw its permission. Finkbine travels to Sweden for an abortion, where it is discovered that the fetus was, in fact, grossly deformed. The case sways public opinion on the need for abortions in some instances.

1964: An epidemic of rubella in the United States causes many women to worry about the health of their fetus. Damage to a fetus in early pregnancy from the disease was widely known, and many women demanded—and received—legal abortions. But these women were mostly wealthy or influential in their respective communities. Thousands of women without such “status” were denied abortions through restrictive laws in place at the time.

Mid-'60s: The civil rights movement gains momentum in the fight for individual rights. For pro-choice activists, this becomes an argument for the individual rights of a woman to choose what to do with her body. Anti-choice groups use the same individual rights argument to champion the rights of the fetus, to which they feel all constitutional rights should be given at the time of conception. At the same time, society was becoming more and more comfortable discussing sexuality, leading to a more open and honest debate on abortion.

1967: Thirteen states liberalize abortion laws after the American Law Institute suggests that abortion be legal for the mental and physical health of women, in cases of rape or incest, and when the fetus might be abnormal.

1970: Hawaii, Alaska, New York and Washington adopt laws that make requesting an abortion possible.

1973: On Jan. 22, the Supreme Court ruled 7-2 that Texas and Georgia could not prohibit a woman from obtaining an abortion during the first three months of pregnancy. The written decision said that “the right to privacy ... is broad enough to compass a woman's decision whether or not to terminate her pregnancy.” At the end of the first trimester, however, the courts may have a compelling interest in the health of the mother because her risks increase at that point, the ruling said. The decision gave power to individual states to regulate abortions “to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”

The ruling also defined fetus viability as starting at 24-28 weeks of gestation.

“In short, the unborn have never been recognized in the law as persons in the whole sense,” the court decided. If the state is interested in protecting the fetus after that point, it may limit abortions during that time, unless the health of the mother is at risk, the ruling declared.

1976: Congress enacts the Hyde Amendment, which cuts Medicaid funding for abortions to poor women.

1989: In Webster v. Reproductive Health Services, the Supreme Court upholds 5-4 Missouri's ban on using public employees and facilities to perform abortions.

1991: Tens of thousands of anti-choice protestors descend on Witchita, Kan. to blockade abortion clinics. The protest lasts for 46 days and results in 2,700 arrests.

1992: 750,000 pro-choice women march at the capitol in Washington, D.C. as part of the March for Women's Lives. The march is formed as a response to anti-choice violence.

1993: Dr. David Gunn is shot and killed outside his Pensacola, Fla. clinic. His murderer is now serving a life sentence. Since Gunn's death, seven more abortion clinic staff members across the country have been killed and 17 wounded by shootings and bombs.

1994: President Clinton signs the Freedom of Access to Clinic Entrances Act, which keeps protestors away from clinics and is used as legal defense against anti-choice terrorism.

2000: The FDA approves the use of mifepristone RU-486 to be used as a method of early abortion. The pill is also available to women in 13 foreign countries.

2001: A federal appeals court rules that a website may continue to publish its “Nuremberg Files,” a hit list of abortion providers.

2002: President George W. Bush restores an executive gag order banning U.S.-funded international organizations from even talking about abortion. Critics see it as an affront to a woman's right to choose, and an attack of free speech. He does this on his second day in office and on the anniversary of Roe v. Wade. A week later, he announces his faith-based community initiatives, which will move public sector jobs into private religious hands and give more federal money to religious groups, many of which have an anti-choice agenda.

—Sources: Ms. Magazine, Planned Parenthood