by Neil McCarthy

Anti-choice extremism got even nastier when the US House of Representatives passed the so-called Child Custody Protection Act. The Act, which was supported by Westchester Rep. Sue Kelly (R-Katonah), would make it a federal crime to take a minor to another state for an abortion in order to avoid the minor’s own state’s parental notification law.

Seldom is the idiocy and bitter hypocrisy of anti-choice extremism so transparent. The Act has nothing to do with child custody or parents’ rights. To the contrary, the Act is one of many efforts to block the safe exercise of a constitutional right. Should this bill become law, a minor who won’t talk to her parents and is afraid of talking to a judge cannot even count on the assistance of adult friends or relatives she can trust. “Child Custody Protection Act?” How about “Assisting Teens to Suicide Act”? At least that name would more accurately describe what is going on here.

The Act is also bad law. Although that never stops congressional right-wingers, most of whom as lawyers should know better, let me try anyway. Under the Constitution, states are required to give full faith and credit to the laws of other states. This entails at least two principles. First, states cannot govern the actions of those outside their borders. For example, New York cannot make it a New York crime to commit a New Jersey burglary. Second, however, states must respect the laws of sister states and facilitate their enforcement. Although New York can’t make it a New York crime to commit a New Jersey burglary, New York is obligated to return the burglar to New Jersey if caught in New York.

The Act makes hash of these principles by criminalizing what is legal conduct in the non-notification state. That state allows minors to consent to their own abortions, and doing so without parental notification is legal in that state. The notification state, however, is reaching over its border to govern and criminalize acts which are perfectly legal where they take place.

Extremists typically think the ends justify the means and rarely consider other consequences of their acts. In this case, however, the right wing should think again lest their own ox be gored. In fact, were I in Congress, and were the so-called Child Custody Protection Act the law, I would propose the following corresponding laws.

• The Job Protection Act, making it a crime for a business to leave a union state for a right-to-work state, in order to flee unionization of the company’s work force.
• The Revenue Protection Act, making it a crime for anyone to move from one state to another to avoid taxation in the “high” or “higher” tax state.
• The Environmental Protection Act, making it a crime to transport recyclable items from a state that requires recycling to one that doesn’t for the purpose of avoiding recycling. (The Bring That Bottle Back Act would do wonders for the Jersey shore.)
• The Auto Safety Act, making it a crime to travel 70 mph on I-95 in North Carolina (where that’s the legal limit) to make up time lost because of New Jersey’s 60 mph limit. (This Act would have the benefit of lowering traffic fatalities on those spring break trips college kids take to Florida, so I would have called it the Child Custody Protection Act if that name hadn’t been taken.)

Neil McCarthy is an attorney who ran for Congress in northern Westchester in 1992 and 1994.

From the Institute for First Amendment Studies, Inc.

In the Yellow Pages, “Abortion Alternatives” appears before “Abortion Providers.” If a Manhattan woman seeks an abortion provider in the yellow pages, she will first see an ad for “Pregnancy Help, Inc.” The ad reads, “Pregnant? Need Help? Free Pregnancy Test.” Although it appears that this group might perform abortions, it does not. This is typical of the deceptive advertising occurring across the nation.

Many “pregnancy help centers” use a handbook called How to Start and Operate a Pro-life Outreach Pregnancy Service Center, published in 1984 by the Pearson Foundation, a Catholic organization headquartered in St. Louis, Missouri. The sole purpose of these centers is to dissuade pregnant women from having abortions. They employ a carefully calculated subterfuge in their efforts, and claim an 87 percent success rate with the women who come to the centers. The 84-page handbook covers everything from choosing the right name for the center, to keeping a pregnant girl away from parental influence. Excerpts from the handbook:

“We have discovered over the years that a neutral name such as “Abortion ABC’S,” “Abortion Advice” or “Pregnancy Problem Center” is the most effective way to reach these women who are pregnant and who are considering abortion.”

“The handbook suggests renting office space in the same building as an abortion clinic, then “the abortion chamber is paying for advertising to bring the girl to you. Hopefully, if the girl who would be going to the abortion chamber sees your office first with a similar name, she will probably come into your center.”

“Our primary function is to find and assist those women who might be seeking an abortion to change their mind.”

“Do not indicate you are pro-life. If she is seeking an abortion and indicates she won’t come in because she knows we are pro-life, assure her we can still help her by giving her all the information on abortion.”

“When a caller asks, ‘Are you a pro-life center?’ say, ‘We are a pregnancy center, part of the Pearson Foundation. What is pro-life? We have many ways to help a woman and will answer any and all questions regarding pregnancy and anything she needs to know about abortion.’”

“Make sure your decor does not expose your purpose.”

“Keep a few baby items hidden away in your Center, so that you are not advertising your pro-life views. But sometimes the gift of a little baby outfit before she leaves, is the very thing that will clinch the mother’s decision for life.”

“Pregnancy tests: Never allow a client to watch while you are doing a test.”

“If the client asks how long it takes to do the test, tell her we offer the results in 30 minutes, you will have the results by that time. (You have not told her how long it takes you to run the test, but how long it will be before she has the results of the test.)” [Editor’s note: A pregnancy test takes two to five minutes. During the 30-minute period, the centers show the client a deceptive and misleading video about the dangers of abortion.]

“Client must stay at the clinic for the results of the test.”

“We want to avoid having a client feel that she is being deceived or pressured instead of being educated. Therefore it is imperative to proceed to the presentation with the proper introduction.”

“Do recommend a second test if the client tends to still favor an abortion.” [Editor’s note: Cases have surfaced where clients have been encouraged to go back weekly, for up to four weeks, to confirm a pregnancy. This strategy is to bring a woman closer to term, in hopes of avoiding an abortion.]

“Question: How far does a volunteer go to help a mother not to abort her unborn child? Answer: How far would you go to save your own life?”

“Counselors should also be thoroughly familiar with Willke’s Handbook on Abortion, Flanagan’s The First Nine Months of Life, From Conception to Birth, and When You Were Formed in Secret.

“Never counsel for contraception or refer to agencies making contraceptives available. Fornication is still a sin no matter what the circumstances.”

The Crisis Pregnancy Centers encourage young girls not to tell their parents they’re pregnant until they are far along in their pregnancy (after all, they say, “she’s pregnant, not ill”). “This way the girl will become accustomed to being pregnant. Also, more importantly, if she is quite far along in her pregnancy, her parents will be more likely to admit that it is a baby and not push for an abortion.” (Also: “We must respect our parents even if they are wrong. However, we can respectfully decline to follow their authority when they are leading us against God’s word.”)

“If the girl is being pressured into abortion at her home, and she is willing to go to a ‘foster’ home, even though she may be a minor, take her at once. Call the parents and let them know their daughter came to you for help and didn’t want an abortion.”

“Try to make every effort to keep the daughter from the parents until the parents understand the significance of what an abortion really means.”

“She may have to slip out the back door if the parents come to take her for an abortion. She may have to get lost in this way two or three times before the parents stop pushing for an abortion.”

There is no limit to arguments against imposing a one-size-fits-all parental notification law on pregnant teenagers. Proponents claim it is a parents’ rights bill, but opponents believe it is an anti-choice bill. The only organizational supporters of the bill are anti-abortion groups; organizations that advocate for children’s health and welfare oppose it. Here’s why:

Targets vulnerable teens

Most minors voluntarily tell at least one parent. This bill ignores the harsh realities of many adolescents’ lives, it affects those who are afraid to tell both parents. Some teenagers do not have parents willing to talk with them about anything; and in some families sexual subjects, especially abortion are never addressed.

Delay

Parental notification laws frighten teenagers away from medical care delaying counseling and abortion until later in pregnancy.

Back-alley abortions

To avoid confrontation, some minors will seek an abortion outside the health care system. The parents of the late Becky Bell lobby passionately against such laws, citing the Indiana law that drove their daughter to undergo a non-medical abortion. Becky died a long, painful death from the sort of septic abortion that killed and maimed many women prior to 1970.

Coercion toward teen motherhood

Some parents will prevent their daughters from keeping the abortion appointment, forcing them to bear the child. This is the goal of the bill.

The aspirin in school argument

Proponents claim that teens need parental permission to get an aspirin in school but this is a school rule, not a state law. In fact, New York specifically permits minors to consent to their own treatment for prenatal care and delivery, mental health care, STD and HIV tests or treatment, alcoholism and drug abuse, and family planning. Only abortion is singled out for parental notification.

Beatings at home

Parental involvement laws open minors to the risk of beatings at home. In June, after learning that his teenage daughter had been raped, a Bridgeport father beat her with a belt so severely that he was arrested and charged with third degree assault. In some cases, beatings are guaranteed when parents receive a certified letter telling them that their daughter is pregnant and intends to have an abortion. Abusive parents handle sex, pregnancy, and abortion especially badly.

A trip to Family Court

The bill provides a legal “out” for the pregnant teen who wants to avoid confronting her parents: a trip to Family Court for a judge’s permission for the abortion. But even the NYS Association of Family Court Judges opposes this bill because judges can’t assess the maturity of young women they have never before seen, Family Court is difficult to maneuver, girls would not be represented by law guardians, and confidentiality may be lost. And some Family Court judges were elected on the Right to Life Party line and would never okay an abortion. Family Courts are already clogged with compelling cases of child abuse that are required by law to receive immediate attention.

Criminal penalties for doctors

Violation of this law by physicians would be a crime. Yet, ironically, the doctors are perfectly free to perform the abortion against the parents’ will—as long as they’ve notified the parents (by certified mail 48 hours before) of their intention to do so.

One of the greatest successes of the anti-abortion movement has been to demonize abortions, the women who have them, and the doctors who perform them. Our side has failed to portray abortion as a valid, routine, and necessary part of women’s medical care that should never have been illegal and should never have been funded as childbirth is funded.

The pro-choice movement needs to show that women who choose abortions are worthy of respect because they are taking charge of their own lives and making a reasonable decision. Women deserve praise for refusing to bear children they do not want, are not prepared to love or care for, or cannot support.

The pro-choice movement must be more successful in gaining respect for doctors who help women by performing abortions, even though abortion is the most frequently chosen surgical procedure in the nation. Some physicians even look down their noses at colleagues who perform abortions.

In a recent column, Charles Krauthammer said that abortion should be legal and “stigmatized.” No!

Abortion is a necessary component of good health care for all women. It should be accepted as such, and those who provide it or use it should be respected. That is the challenge we must address.

by Polly Rothstein

Actually, there is no such thing as partial birth abortion. It’s a fraud.

Abortion foes, including the Catholic Church, the Christian Coalition, Right to Life, and the Republican and Conservative Party leadership, have created a false but potent issue: outlawing partial birth abortions. They claim to target one procedure, but that’s a smokescreen; they have invested vast resources in a disinformation campaign to criminalize a whole range of medically safe abortion procedures. Their most powerful weapon is the inflammatory name itself.

Even doctors don’t know what partial birth abortion is. The Partial Birth Abortion Act criminalizes any abortion procedure in which some part of a living fetus, comes through the cervix. But the intentionally vague language (the definition section is omitted) might apply to tissue that’s extracted in first and second trimesters, before viability, in abortions that are protected under Roe v. Wade.

The bill seems to point to the Intact D&E procedure, but it clearly doesn’t end there. This legislation would compel doctors to ensure that no living tissue is involved, therefore use a less desirable method. Some of the other procedures may impose unnecessary risks to the woman and jeopardize her future childbearing, but not violate the proposed law. One example of a less desirable procedure is hysterotomy (an incision into the uterine wall), which is major abdominal surgery and requires future deliveries to be Caesarean sections. (And remember, childbirth is riskier than abortion.)

In seeking to criminalize all abortions, the groups who promote this bill both federal and state versions are moving toward that goal. They use gruesome descriptions and shocking cartoons to imply that abortions are done for minor reasons, just moments from birth, when the fully developed healthy fetus is in the birth canal. This is a blatant deception. Right to Life pamphlets and statements by church spokespersons have led the public to believe that partial birth abortion is commonly done. They have legitimized the fraud by legislating against it: There is a bill to ban it, therefore it must exist.

Despite the publicity, this bill is not about third trimester abortions, which are already illegal in every state except to save the woman’s life or health, and are virtually never done. They occur only when abnormalities are so grave that the fetus could not survive and maintaining the pregnancy would be harmful. When a life-threatening condition, such as eclampsia or toxemia, threatens a woman’s life, her doctor may interrupt the pregnancy but make every effort to deliver a healthy baby. Such cases are always reviewed by hospital medical committees. Both mother and baby may end up in intensive-care units.

If the bill is a fraud, why do we care? Because the law would jeopardize women’s lives. The bill is intentionally vague and so incomprehensible that it confuses everyone – doctors, voters, the media, and legislators. The incendiary materials and op-ed articles produced by Right to Life and the Catholic Church, and the bishops’ heavy-handed lobbying, have made outlawing partial birth abortion a major issue – regardless of whether it is done and regardless of what its ban would mean to women and the practice of medicine. And the rhetoric doesn’t jibe with the bill. In sum, what opponents claim to be outlawing is never done; what they actually want to outlaw is common and would hurt millions of American women.

This nefarious bill has two main objectives: First, to make doctors fear criminal prosecution to the extent they fear performing any abortions; and second, to make voters reject President Clinton, who vetoed the bill, and any candidate who opposes it. Also, it increases public opposition to all abortions and provides a case to challenge Roe v. Wade in the Supreme Court.

Doctors base medical decisions regarding abortion, as all procedures, on safety, effectiveness, and efficiency. The choices vary with each patient: her anatomy, any pre-existing conditions, and the duration of the pregnancy. Doctors must be free to make these decisions according to what is best for each patient – not according to a one-size-fits-all law passed by legislators who know nothing about the complexities of pregnancy. It would be wrong to handicap doctors who may have to make quick decisions under emergency conditions.

This bill is a moral abomination. Women who may be ill or whose pregnancies are incompatible with life have become political pawns. Voters should praise President Clinton for his moral courage in vetoing this law, and hold accountable legislators who support it.

By Thomas Oliphant, Globe Columnist, 5/1/2000WASHINGTON

The State of Nebraska got caught red-handed here last week.

The exposure was technically legal in nature, and because it was before the Supreme Court there was enough of a veneer of gentility to cushion the blow’s humiliating severity.

But in getting caught in several acts of out-and-out deception, Nebraska’s effort to argue for its statute banning ”partial-birth abortion” was not only unmasked as fraudulent in open court; the equally important politics of ”partial-birth abortion” were changed utterly.

From now on, no slogan-spouting antiabortion politician can responsibly say he opposes ”partial-birth abortion” without answering the simple question, ”What’s that?” What was demonstrated last week is that the question cannot be answered, which turns out to have been the deceptive purpose of this six-year political farce all along. George W. Bush, to pick one example, has had a free ride on this dishonest formulation long enough.

The problem poor Donald Stenberg, Nebraska’s attorney general, faced in oral argument before the court was how to explain why the statute avoided specifying the act it purported to criminalize.

In fact, in none of the 31 state statutes enacted to date (plus a bill passed twice by Congress and vetoed twice by President Clinton) is ”partial-birth abortion” the actual target. By now, presumably a few people have gotten past the evasions to learn that the term is entirely a public relations fabrication and has no medical meaning.

The Nebraska statute at issue is typical, criminalizing any procedure ”in which the person performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery.”

What tripped Stenberg up and unmasked the nefarious purpose behind the law is the fact that doctors say that the language can cover two kinds of procedures.

One – dilation and extraction – is used very late in pregnancy and involves dilating the cervix so the fetus comes into the vagina feet first. Collapsing the skull and suctioning out the brain allows the head’s delivery. This is the stuff of the antiabortion movement’s famous cartoons pretending that a ”baby” right out of a Good Housekeeping ad is killed on the verge of live birth. In reality, the fetus involved is often brain-dead or otherwise hopelessly flawed, and the procedure protects the woman’s health, including her ability to have children in the future.

The other – dilation and evacuation – is used commonly in the second trimester of pregnancy. It involves removing the fetus in sections from the uterus, during which it is common, for example, for the arm or leg of a living fetus to be pulled into the vagina.

Stenberg tried to argue that criminalizing only the former was the state’s intent, claiming a valid state interest in ”drawing a bright line between infanticide and abortion.” He then claimed that it was no big deal anyway because the procedure is used so rarely that banning it would have no impact on the choices of the vast majority of pregnant women. That was the first clue to the deception, since when this fight was just beginning, the antiabortion movement was claiming just the opposite.

But if outlawing dilation and extractions is the intent, as Stenberg claimed, why not specifically outlaw them by name? His failure to answer was bad enough, but the legislative history in Nebraska three years ago is much worse. It turns out that an effort was made in the state Senate to amend the bill to ban dilation and extractions specifically, and it was defeated in a 27-11 vote.

Indeed, the bill’s chief sponsor opposed the amendment because, he said, it would change ”what the bill is designed to do,” namely, to ban both procedures and breach Roe v. Wade’s wall between allowable regulations during the second trimester (for safety only) and during the third (when abortions can be banned as long as there are exceptions to protect the life and health of the woman). The absence of a health exception in all the phony antiabortion statutes is flagrant icing on the factual cake.

”That’s just glaring here,” said Justice Ruth Bader Ginsburg of Stenberg’s twisted presentation, for which dissembling would be a mild adjective.

Speaking for his two antiabortion colleagues – Chief Justice William Rehnquist and Clarence Thomas – Antonin Scalia sounded less like a jurist and more like a pol. Since he acknowledges no right to choose under Roe, any pregnancy regulation is permissible.

The collapse of Nebraska’s argument foreshadows the collapse of the political case as well after nearly a decade of fraudulent claims.

The issue is not ”partial-birth abortion.” It’s the right to choose, and if he wins the right to make two appointments to the court, Governor Bush is a dagger aimed straight at it.

Thomas Oliphant is a Globe columnist.

This story ran on page A19 of the Boston Globe on 5/1/2000.

May 25, 1998

By Polly Rothstein

Opposing a ban on so-called “partial birth abortion” (PBA) is like arguing about a giant winged dragon: the dragon doesn’t exist. Nonetheless, people believe “partial birth abortion” exists and occurs late in pregnancy and should be outlawed. But “partial birth abortion” is not an abortion method; it is a political bludgeon to inflict damage on women, abortion rights, and pro-choice legislators.

!!Abortions are illegal after 24 weeks in most states, including NY, except to save the woman’s life. NO abortions after 24 weeks were performed outside of NYC in 1996, according to the latest correct figures from the NYS Dept of Health. (NYC Dept of Health does not review cases, so its figure are unknown. Further, as standard medical practice, if a woman’s health is jeopardized late in pregnancy, doctors attempt to deliver a healthy baby.

What the bill says – and doesn’t say:

Anti-abortion leaders made up the term “partial birth abortion.” The bills passed by Congress and the NY Senate simply define PBA as when the “person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” That’s all there is to the bill: NO definition of “partially delivers” or “delivery;” NO mention of trimesters, duration of pregnancy, or fetal viability; NO guidelines for implementation, and NO exceptions for the woman’s health. “Delivery” is misused in order to deceive. The remaining wording in the bill sets out criminal penalties.

The bill may be unclear, but its fiery rhetoric is specific, untrue, and widely believed. Abortion foes claim the doctor extracts the body of a fully developed fetus, pokes scissors in the nape and suctions out the brain. They say PBA even occurs during birth, and call it “infanticide” and “murder.” The Conservative Party dishonestly repeats the mantra that “a full-term fetus is killed after being partially delivered by its mother” and uses the term “nearly born” fetuses. The term “late-term abortions” is also inaccurate. There is no phrase or word that pro-choice people can use to refer to this fictitious procedure.

It’s important to understand that during the second trimester, the cervix is still thick and firm in order to retain the pregnancy, and does not easily dilate. It is understood that in all methods of abortion between 18 and 24 weeks, doctors avoid tearing the cervix by reducing the size of the fetal skull.

Proponents assert that this bill merely bans one brutal method of abortions late in pregnancy. In fact, it is so vaguely worded and so broad that it confuses everyone – doctors, the press, and politicians. The threat of prosecution would deter doctors from performing D&E, the most common procedure used in the second trimester, and many legal experts believe it would apply to first trimester abortions as well. Both occur before viability, which typically begins at 24-28 weeks.

The bombast has deceived some of the public and the media, but not the courts. The courts across the country that have considered similar state bans have prohibited enforcement, finding them unconstitutional because they are too vague and they violate women’s constitutional right to privacy. PBA laws are not about “late-term” abortions; they are a direct attack on Roe v. Wade and if upheld by the Supreme Court, Roe will have been overturned.

Despite incredible distortions, political pressure to outlaw so-called “partial birth abortions” is intense. The NYS Conservative Party says it won’t endorse candidates who refuse to support the ban. Pro-choice legislators are harassed by anti-abortion religious groups and will face a blitz of grisly ads against them at election time. Those who stand up to this relentless political pressure deserve pro-choice support.

The good news: No member of Congress who voted against the “Partial Birth Abortion Act” was defeated in 1996.

Q&A

Q: If there are no abortions after 24 weeks anyway, why not just let the PBA ban pass?

A: This law would put a chill on all D&E procedures. Standing idly by is foolish, and anyway would set a lamentable precedent. Pro-choice advocates must dispute the fraudulent pictures and descriptions because they increase opposition to abortion and lead to making all abortions a crime (which is the real goal.)

Q: I saw pictures of PBA and it’s so abhorrent it should be outlawed.

A1: The issue is a fraud. The diagrams are produced by Right to Life to depict a procedure they want you to believe is used to abort healthy fetuses in the final weeks of pregnancy.

A2: Respond with questions:

• Did you know that abortions on viable fetuses are illegal?
• How many abortions after 24 weeks do you think were done in NYS in 1996? You can enjoy surprising them with ZERO!
• How many healthy women do you know who sought abortions in the last months of pregnancy?
• Have you read the bill?

Q: Why are you for PBAs?

A: Nothing in medicine is known as “partial birth abortion.” I cannot favor a fake procedure invented by anti-choice forces.

A1: Medical decisions belong to doctors and patients. No one wants legislators dictating medical treatment or deterring their doctors from doing their best for them.

A2: I expect to be attacked at election time, but it’s worse to harm patients and threaten all abortion rights.

Q: Does the fetus feel pain?

A: Medical researchers and medical literature say that the pathways in the brain that permit the sensation of pain develop after 30 weeks.

Q: What do obstetricians say about PBA?

A: The American College of Obstetricians and Gynecologists (ACOG) said, “The intervention of legislative bodies into medical decision making is inappropriate, ill-advised, and dangerous.”

The Supreme Court’s decision Wednesday upholding a law banning some abortions after 12 weeks, without a health exception, dismayed reproductive health advocates.

By Stevens and Bowen,
WeNews correspondents
April 19, 2007 – The Supreme Court’s ruling Wednesday upholding a federal abortion ban sent a wave of dismay across reproductive health groups Wednesday. The law, barring some abortions after 12 weeks, was held back by successful legal challenges for more than three years because the law includes no exception for protecting the health of the woman. It now may become effective within three weeks.

The Nebraska physician who brought the case, Dr. LeRoy H. Carhart, said in a prepared statement that he was “devastated” by the decision. Carhart was the doctor who sued and won the high court’s 2000 ruling that declared his state’s abortion ban unconstitutional. That state law is the model for the federal law enacted in 2003 and upheld in Wednesday’s decision.

“When the Supreme Court considered this issue seven years ago, they agreed that women’s health was a paramount concern and doctors, not politicians, were in the best position to decide what procedures were safest,” Carhart said. “I am afraid the Supreme Court has just opened the door to an all-out assault on Roe and that the women in my practice may soon experience life without access to safe, legal abortions.”

Reflecting Carhart’s view, reproductive rights advocate Gloria Feldt said, “It’s the worst possible ruling for women’s health.” Feldt is the former president of the Planned Parenthood Federation of America and author of the 2004 book “The War on Choice.”

“This is the first time the federal government has passed sweeping legislation that directly takes charge of a physician’s practice and directly takes away a woman’s right to make child-bearing decisions,” said Feldt. “It’s earth-shattering.”

Opponents of abortion cheered at the court’s 5-4 decision to uphold the first federal ban on a specific abortion procedure.

“This is a momentous day,” said Beverly LaHaye, founder and chair of Concerned Women for America, an advocacy group in Washington. “With this decision, the Supreme Court has restored a tiny portion of the common good it knocked down in its 1973 decision, which classified an entire set of people–the unborn–as a sub-human species.”

The high court’s decision to uphold the federal abortion law, signed by President Bush in 2003, reverses a precedent set more than three decades ago and repeatedly affirmed by the court that requires restrictions on abortion to make exceptions to protect women’s health.

In his decision, Justice Anthony Kennedy said that the law does not violate the constitutional right to abortion laid out in Roe v. Wade, the 1973 Supreme Court case that safeguarded abortion as part of a woman’s constitutional right to privacy, or in Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case that maintained the fundamental right to abortion but upheld restrictions on abortion as long as the law included protections for women’s life and health and did not place an “undue burden” on women’s ability to exercise their rights prior to the ability of a fetus to survive outside the womb.

Justice Ruth Bader Ginsburg, the sole woman on the court, delivered a biting dissent from the bench, denouncing the decision as a reversal of legal precedent and an attack on women’s health.

“It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists,” she said.

O’Connor’s Absence Felt

Wednesday’s ruling was the court’s first major decision on the issue of abortion since the 2006 retirement of Sandra Day O’Connor, the legendary centrist whose support for limited abortion rights made her the court’s swing vote on the issue.

Two George W. Bush appointees–John Roberts and Samuel Alito–have joined the court since O’Connor’s retirement and the death of former Chief Justice William Rehnquist, a reliable, anti-choice vote.

After O’Connor’s departure Kennedy emerged as the pivotal swing vote and he sided with Roberts, Alito, Clarence Thomas and Antonin Scalia Wednesday.

Writing for the majority, Kennedy said the law “proscribes a method of abortion in which the fetus is killed just inches before completion of the birth process,” echoing the same “inches before birth” language that Bush used when he signed the ban into law in 2003.

Kennedy’s decision specifies a procedure called intact dilation and evacuation, or “D and E,” a variant on what the court called the “usual second-trimester procedure of dilation and evacuation.”

Under the law, women would still be able to access certain kinds of second-trimester abortions but would not necessarily be able to have the procedure considered by their doctors to be the safest and best under the woman’s individual circumstances, said Vicki Saporta, president of the National Abortion Federation in Washington, D.C. She and other lawyers, doctors and advocates are still exploring the legal language to determine the precise reach of the law.

In 2000, according to the New York-based Guttmacher Institute, doctors performed 2,200 of the procedures that the court specifically banned Wednesday. Although intact dilation and evacuation is not performed before the 12th week of pregnancy, Ginsburg noted the blurring of the distinction between abortions performed before and after the point of fetal viability, which generally occurs between the 23rd and 25th week.

“For the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman’s health,” she wrote in her dissenting opinion.

Called the Partial-Birth Abortion Ban, the law–in contrast to the Supreme Court ruling–does not specify a medical procedure. Backers of the ban have maintained that it referred to a particular procedure used in only rare circumstances, which is also how the court interpreted it. But opponents say the wording of the law is so vague that it could apply to any abortion as early as 12 weeks.

Law Challenged Earlier Ruling

In 2003, Congress passed the Partial-Birth Abortion Ban Act as a direct challenge to the Supreme Court’s 2000 ruling in Stenberg v. Carhart, a case that scrutinized the Nebraska ban.

In that ruling, also decided by a 5-4 vote, justices cited the law’s lack of a health exception for the woman and its vague wording.

At the time, Kennedy was in the minority. In his dissenting opinion he argued that the Nebraska ban did not pose an “undue burden” on women seeking abortions and rejected the notion that all abortion restrictions must require health exceptions.

Kennedy stuck to that reasoning this time around, but with a change in the court’s composition, was in the majority.

Immediately after Bush signed the Partial-Birth Abortion Ban Act into law, three lawsuits–in New York, San Francisco and Nebraska–challenged its constitutionality. All three district courts held the law unconstitutional, rulings that were upheld in three federal appeals courts.

Nancy Northup, president of the Center for Reproductive Rights in New York, predicted that Wednesday’s decision will have a chilling effect on physicians, who face up to two years in prison for breaking the law. She also said it would unleash a wave of new bills at the state and federal level attempting to further restrict abortion.

“Make no mistake, today’s ruling takes us perilously close to a complete reversal of Roe v. Wade,” Northup said in a statement. “And we should assume that this is only the beginning.”

Some Women Vulnerable

Older women are especially vulnerable to the ban because they are more likely to have problematic pregnancies, and the results of prenatal tests such as amniocentesis are generally not released until mid-pregnancy, said Ellie Smeal, president of the Feminist Majority Foundation, an advocacy group in Arlington, Va. The law also puts younger women at additional risk, she added, because they are more likely to delay decisions about abortion because they often lack control over their lives or have inadequate funds.

Jennifer Baumgardner, an author and filmmaker of the 2005 documentary “I Had an Abortion,” said she felt the court decision was “insensitive” to lower-income women, who increasingly face barriers in obtaining reproductive health care and family planning services.

“Poor women are more likely to be in a situation where they’re in a desperate search for abortion,” she said. “This is already happening to poor women, the general lack of access for certain people and the indignity of impacting their lives and freedom.”

While the court had protected women’s health in the past, Faye Wattleton, president of the Center for the Advancement of Women in New York, said it now appeared that women’s health was up for grabs.

“The reality is that women now must really dedicate themselves anew to become engaged in the political process,” Wattleton told Women’s eNews. “We no longer have the privilege of being on the sidelines.”

Reproductive rights advocates wasted no time in sending out e-mails about planned protest rallies. The Family Planning Advocates of New York State, for instance, mobilized almost immediately, calling a protest for yesterday afternoon at the New York State Capitol building in Albany.

–Cynthia L. Cooper also contributed to this report.

Allison Stevens is Washington bureau chief at Women’s eNews. Alison Bowen is a New York-based reporter with Women’s eNews.

The justice argues that equality, not privacy, is crucial in the abortion right.

By Cass R. Sunstein,Chicago Law School

April 20, 2007 – IN THE LONG RUN, the most important part of the Supreme Court’s ruling on “partial-birth” abortions may not be Justice Anthony M. Kennedy’s opinion for the majority. It might well be Justice Ruth Bader Ginsburg’s dissent, which attempts, for the first time in the court’s history, to justify the right to abortion squarely in terms of women’s equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court’s argument was exceedingly weak. The Constitution does not use the word “privacy” anywhere, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit.

And everyone knew, even in 1973, that the debate over abortion had a great deal to do with women’s equality.

In 1985, Ginsburg, then a federal appeals court judge, argued in a law review article that the court should have emphasized “a woman’s autonomous charge of her full life’s course.” Citing decisions on sex equality, she contended that Roe vs. Wade was “weakened … by the opinion’s concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective.”

In this week’s case, Ginsburg, now the only woman on the court, attempted to re-conceive the foundations of the abortion right, basing it on well-established constitutional principles of equality. Borrowing from her 1985 argument, she said that legal challenges to restrictions on abortion procedures “do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”

For Ginsburg, this alternative understanding of the right to choose has concrete implications. It means that any restrictions on the abortion right must, at a minimum, protect a woman’s health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities. In her view, such paternalistic arguments run afoul of the guarantee of sex equality because they reflect “ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”

In supporting this claim, Ginsburg referred to the same equality cases, involving discrimination in Social Security and welfare programs, on which she relied in 1985.

For supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines.

It defies social reality to approach the abortion issue as a mere matter of privacy, as if it could really be divorced from questions of sex equality. Some proposed restrictions on abortion, such as requiring the consent of the father of the fetus, are plainly an effort to revive discredited notions about women’s proper place, and they violate equality principles for that reason.

True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn’t there an equality problem if laws target only women’s bodies and leave men’s bodies alone?

Despite its advantages, the sex equality argument will not be convincing to committed opponents of the abortion right. If you believe that fetuses count as human beings, then you’re going to believe the state has a right to protect them, even if the resulting laws undermine “a woman’s autonomy to determine her life’s course.”

But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today’s dissenting opinion often becomes tomorrow’s majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg’s view attracts a decisive fifth.