Roe v. No: The fight over Alito misses the daily defeat of legal abortion

November 08, 2005

by Jarrett Murphy, The Village Voice, November 8th, 2005

Once more into the breach go America's abortion partisans, this time over
Judge Samuel Alito's nomination to the Supreme Court. The issue, pro-choice people say,
is nothing less than defending Roe v. Wade. But the fact is that something far less than
the rights protected by Roe is what most American women have faced for a long time.

From about 1991 on, the number and rate of abortions in the United
States have decreased. Many factors could account for that, but pro-life
groups insist—and some pro-choice activists agree—that legal
restrictions and other abortion barriers are having some effect. Here are
some of the thousand cuts from which Roe is dying even before the
reconstituted Supreme Court starts its next term:

'Casey': Planned Parenthood of Southeastern Pennsylvania v. Casey is
the case where, at the appeals court level, Alito famously dissented in
support of a measure requiring women seeking abortions to tell their
husbands. The case ended up at the Supreme Court, which "upheld" Roe
but OK'd measures like waiting periods, informed-consent laws, and
parental- notification requirements. All three rules sound very
reasonable; that's their genius—and the problem—say pro-choice

Take parental-notification laws, which are on the books in 44 states—
among the nearly 500 abortion restrictions the states have passed since
Casey. "They're extraordinarily burdensome," says Lynn Paltrow,
founder of the National Advocates for Pregnant Women, for "women
whose relationship with their parents is not safe or healthy." Women
who don't want to tell Mom or Dad can go before a judge, but that
could mean a long and expensive trip to court. The Supreme Court is
set to review a New Hampshire law that requires teens to give their
parents 48 hours' notice with no exception for cases where a woman's
health is at risk.

The informed-consent material that doctors must show to women differs
from state to state, but many of them detail the health risks of getting
abortions. While it's always good to know the risks of medical
procedures, pro-choice activists wonder why abortion is singled out.
After all, more women died from complications during pregnancy just in
2003 (the latest year for which data are available) than during legal
abortions from 1972–2000, according to the Centers for Disease
Control. And sometimes the scripts depart from scientific consensus. The
South Dakota legislature recently passed a bill requiring doctors to tell
abortion patients that "the abortion will terminate the life of a whole,
separate, unique, living human being."

And while waiting periods sound benign, "that means two days off work,
maybe staying overnight, two days of child care, which make it more
difficult for women to obtain the care that they need," says Vicki
Saporta of the National Abortion Foundation. California voters will soon
decide whether to enact a 48-hour waiting period and parentalnotification
law, called Proposition 73.

Funding: Roe was less than four years old when the Hyde Amendment
blocked the use of federal Medicaid funds on abortions except in
circumstances like rape, incest, or life endangerment. States share
Medicaid costs with the feds and can use their own money for abortions,
but only 17 do.

Insurance: Four states block private insurers from covering most
abortions (Idaho, Kentucky, Missouri, North Dakota), and several others
refuse to cover abortions for public employees—in a few cases, even
when the woman's life is in danger. A 2001 study of private insurance
plans in Washington State found that 53 percent of women enrolled in
the top plans did not have coverage for "pregnancy termination."
Nationwide, the vast majority of private plans cover abortion, but most
women do not seek reimbursement from their carriers.
Providers: According to the Alan Guttmacher Institute, which studies
reproductive health care, there are no abortion services in 87 percent of
U.S. counties, encompassing about 34 percent of American women of
childbearing age.

Meanwhile, many medical schools aren't really teaching abortion. Early
results from an unpublished 2003 Medical Students for Choice study
found that while abortion was discussed at 65 percent of med schools,
actual clinical methods were taught at fewer than one in five.

Military bases: In 1988 abortions were banned on military bases, and
although President Clinton lifted the ban in 1993, Congress reinstated it
three years later. In 2002 lawmakers narrowly defeated an effort to lift
it again.

'Partial birth' abortion: No "partial birth" abortion ban has stood up to
court challenges yet. Nebraska's was voided by the Supreme Court in
2000, and three district courts have declared the 2003 federal ban
unconstitutional (those cases are likely to reach the high court soon).
But even though pro-choice groups have won the legal battles so far,
the bans have put them in the position of defending a rarely used
medical procedure that the pro-life side has been able to characterize in
emotional terms.

The fetal rights movement:"What's at stake," Paltrow says of the Alito
nomination, "is so much bigger and more profound than just the
possibility for losing Roe. There are people in jail for murder because
they had a stillbirth." One of them is Regina McKnight, convicted in
South Carolina in 2001 of murder for using cocaine during a pregnancy
that ended in stillbirth; she's serving 12 to 20 years. The Supreme
Court refused to hear her appeal. Other states have charged women
with similar crimes. Roe provides legal tools for challenging these laws
when they impinge on abortion rights, but losing Roe could affect more
than just abortion. Paltrow fears that more women would face forced Csections
and other involuntary medical procedures if fetuses were
allowed to have rights equal to their mothers'.

As California voters weighed Prop 73, California priests were given
homily notes for the last Sunday in October suggesting that they tell
their flocks, "Proposition 73 mandates that in such difficult situations, in
fact at a time when a young person needs her loving and caring family
most of all, the minor is asked to return to her family for love, moral
guidance, and support." Even pro-choice Governor Arnold
Schwarzenegger backs the measure, saying, "I wouldn't want to have
someone take my daughter to a hospital for an abortion or something
and not tell me. I would kill him if they do that."

Of course, the minors who might get an abortion without telling their
folks are precisely those whose family isn't "loving and caring," and
whose father isn't the governor. That's one reason why these
restrictions get passed, Saporta says: It's hard for people to understand
the way an abortion law might affect families that aren't like theirs.
"What the anti-abortion-rights movement discovered is while there's a
commitment to the right to choose to have an abortion, when you
combine that right with a vulnerable or unpopular group it's relatively
easy to deprive that group of access to abortion," Paltrow says. Indeed,
surveys show that while 69 percent of Californians want Roe upheld,
only 49 percent oppose Prop 73.

So you can't fault the pro-lifers for bad strategy. In fact, some of the
blame for the erosion of abortion rights falls on pro-choice groups that
focused narrowly on the fight in D.C. to preserve the wording of Roe,
rather than the skirmishes in state capitals. "Only in the last few years
have we been able to be more effective at saying what's at stake," says
Planned Parenthood of New York City president Joan Malin.

And what's at stake, says Paltrow—in the Alito nomination and in
general—is more than abortion. "Abortion is just a single moment in a
woman's life," she says. "Very often the defense of Roe is framed in
terms of the right to end a pregnancy rather than what women
themselves talk about," like their need for health care that responds to
them. If pro-choice groups could place abortion in a larger context of
family health, the movement might fare better.

"You can still value the fetus and not turn women into criminals if they
have a drug problem during pregnancy and they can't get help for it,"
she says. "You can value the fetus and respect individual decision, or
otherwise you have a fundamentalist Christian forced to have a Csection
they don't want."