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FEATURE | summer 2007

A Major Blow to Roe
The Carhart ruling chills doctors and shows no concern for women's health

Dr. Paul Blumenthal was preparing to perform an abortion for a woman who was 22 weeks pregnant and carrying a fetus with a congenital anomaly. A professor of obstetrics and gynecology at Stanford University, Blumenthal would have preferred to use a particular procedure he believed was the safest and most medically appropriate for the woman. But instead of going with his best medical instincts, he felt it necessary to recommend an alternative method that for the woman was more dangerous, more time-consuming and more painful.

The reason for the change? Blumenthal feared that by performing a “dilation and evacuation”—a quick, safe and legal procedure—he might be perceived as violating a federal law passed in 2003 that the Supreme Court has just ruled constitutional. It bans intact dilation and evacuation, a variant on the legal method, in which a physician partly delivers a fetus before completing the abortion procedure.

Passed by a Republican-controlled Congress and signed into law by President Bush, the ban has not been enforced until now, as it was stayed in lower courts by successful lawsuits from Planned Parenthood, the ACLU and the Center for Reproductive Rights on behalf of the National Abortion Federation, Dr. LeRoy Carhart and other physicians. They challenged the ban for its vague language, asserting it could apply to other procedures, and because it lacked an exception for the health of the woman—a precedent established more than three decades ago in Roe v. Wade and repeatedly reaffirmed in court cases since then.

This April, in the first abortion case since the retirement of legendary centrist Justice Sandra Day O’Connor, the U.S. Supreme Court—whose conservative flank is now bolstered by Bush appointees Chief Justice John Roberts and Justice Samuel Alito—ignored precedent and overturned lower-court decisions in voting 5-4 in favor of the abortion procedure ban. The ruling in Gonzales v. Carhart revealed the rightward shift of the court in the absence of O’Connor, who had joined a 5-4 majority in 2000 that struck down a similar state ban because it lacked the requisite maternal health exception. With Alito now in O’Connor’s seat, the court ruled the other way.

The law’s vague language has had a chilling effect: Doctors like Blumenthal are shying away from performing procedures that remain legal because they fear they may unintentionally violate the law and face criminal penalties. Indeed, physicians found guilty of breaking the law can be sentenced with fines and prison terms of up to two years. “Ever since the Supreme Court decision came down, we’ve made efforts to steer clear of crossing the line, or even the perception of crossing the line,” Blumenthal says.

The ramifications of the decision do not end there. Advocates on both sides of the issue see the court’s departure from precedent—and the opinion’s hostile tone toward abortion rights—as an invitation to anti-choice lawmakers around the country to continue their efforts to chip away at access to abortion and perhaps even criminalize the procedure altogether. Writing for the Supreme Court majority, Justice Anthony Kennedy peppered his ruling with language sympathetic to the antichoice position—a point noted by Justice Ruth Bader Ginsburg in her biting dissent. In the ruling, Kennedy refers to obstetrician-gynecologists as “abortion doctors” and describes a fetus as an “unborn child”—terms that Ginsburg said reveals the court’s “hostility” to the fundamental right to abortion.

Conservative legislators are already taking the high court’s bait: On April 19, one day after the court handed down its ruling, a pair of state legislators in Louisiana introduced “copycat” versions of the federal abortion ban that would carry stiffer penalties (including prison terms of up to 10 years for physicians). Lawmakers in Michigan and North Carolina also introduced anti-choice measures in the weeks after the court announced its decision in the case, and the Iowa state Senate amended a health budget bill to prohibit state funding of the kind of abortion procedures banned by the Supreme Court. That provision died before becoming law.

Several other states enacted anti-choice laws in the aftermath of the decision: Georgia passed a measure requiring abortion providers to offer women the opportunity to see the fetus in an ultrasound before undergoing an abortion; North Dakota backed a nearly complete abortion ban that will take effect if the Supreme Court overturns Roe v. Wade; and Oklahoma passed a bill banning most abortions in state-funded hospitals. Meanwhile, the Missouri legislature approved a law requiring certain abortion clinics to meet more burdensome and more costly operating standards—which could force at least one clinic in the state to shut down if the governor signs it.

But the real legislative onslaught won’t come until next year, experts say. That’s because most state legislatures had already adjourned for the year or passed deadlines barring introduction of new legislation. “I think we’re going to see again a flood of legislation at the state level in which they seek to add additional hurdles to women who are seeking abortion,” said Nancy Northup, president of the Center for Reproductive Rights.

Clarke D. Forsythe, president of Americans United for Life, a group in Chicago that opposes abortion rights, predicted as much in a May 1 memo to supporters. He wrote that the decision “opens the door to more aggressive regulation of abortion” and specifically encouraged what he called “informed consent” restrictions. These types of laws, known by opponents as “biased counseling” restrictions, can even order doctors to give medically specious, state-scripted information to women about purported dangers associated with abortion and a fetus’ ability to feel pain. Often, these laws are coupled with mandatory delays or waiting periods, which add to the cost of the procedure for women who need to pay for overnight accommodations, child care and transportation. Also predicted to be introduced in legislatures next year are a wave of state versions of the federal abortion ban, efforts to eliminate exceptions for a woman’s health from existing laws, and some outright bans on abortion that could be used as legal vehicles to reverse Roe v.Wade.

The decision has emboldened some anti-abortion extremists. Signs of their renewed ardor came during two recent episodes of violence at clinics that provide abortion services. In April, a bomb was found in the parking lot of the Women’s Health Center in Austin, Texas, and in May a fire was set at a Planned Parenthood family-planning clinic in Virginia Beach.

But the Carhart ruling has also galvanized supporters of abortion rights. On the day after the decision, federal lawmakers, led by Sen. Barbara Boxer (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.), reintroduced the Freedom of Choice Act (FOCA), a measure that would codify in federal law the rights established in Roe v.Wade. If passed, the measure would likely lead to court challenges that could overturn the Carhart decision. Seven states—California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington—have already passed their own versions of the Freedom of Choice Act. The measure was also introduced in Rhode Island.

But the federal version, which would guarantee access to abortion across the land, is not likely to win passage anytime soon. Even though Congress is now controlled by Democrats, a party that officially backs abortion rights, the House of Representatives is still controlled by opponents of abortion: Of the 435 members of the House, a slight majority currently opposes abortion rights and another 10 percent of the chamber has a mixed record on the subject and supports some restrictions, according to NARAL Pro-Choice America. In the Senate, only about one-third of the members have strong records in support of abortion, and nearly half strongly oppose it; the rest have mixed records on reproductive rights and family planning, including Senate Majority Leader Harry Reid.

Even if the Freedom of Choice Act were to clear Congress, it would face certain death in the White House. Bush made that clear after the Supreme Court decision, when he issued a pre-emptive threat to veto “any legislation that weakens current federal policies and laws on abortion or that encourages the destruction of human life at any stage.”

Pro-choice advocates can take some solace in the fact that they now have a staunch ally in the most powerful leader in the legislative branch. Speaker Nancy Pelosi— and many of her colleagues on House congressional committees— can be counted on to bottle up any anti-choice measures that might come before Congress. That will put at least a temporary stop to the sort of abortion restrictions that were enacted during the 12 years that Congress was controlled by religious conservative Republicans.

But proactive legislation protecting access to abortion will not win passage until voters send more pro-choice representatives to the Capitol and the White House. Until then, there is little hope for bills that would increase access to abortion (such as providing coverage of the procedure under Medicaid) or protect it by enshrining abortion rights in federal law.

Until then, there is also uncertainty over whether the basic right to abortion will be upheld by the Supreme Court. Currently, four justices are assumed to oppose abortion (Roberts, Alito, Antonin Scalia and Clarence Thomas), and one—Kennedy—was considered a swing vote until he sided with them in Carhart. Whether he supports a complete reversal of Roe v. Wade is unclear, but that may not matter if another staunch opponent of women’s rights is appointed to the bench. Alarmingly, the two oldest members of the court—Justices John Paul Stevens, 87, and Ruth Bader Ginsburg, 74—are also strong backers of a woman’s constitutional right to privacy.

The importance of elections, and their implications for the court, is a concept well understood by the political Right, which routinely uses a candidate’s stance on abortion as a litmus test in primary elections. That is evident in the race for the Republican presidential nomination, where front-runner Rudy Giuliani of New York faces a mutiny from the party’s conservative base now that his support for abortion rights has come under heavy media scrutiny.

Unlike the Right, Democratic candidates do not always place a high degree of importance on the issue of abortion when campaigning for votes. Feminists tried to make abortion rights an issue in the 2000 elections, when prochoice advocates widely circulated campaign buttons at the Democratic National Convention in Los Angeles that blared: “It’s the Supreme Court, Stupid!”—a riff on the “It’s the Economy, Stupid!” catchphrase coined by Democratic strategist James Carville.

But both Al Gore and Bush downplayed abortion: Gore did not highlight his pro-choice position in his campaign, and Bush obfuscated his anti-abortion position, presenting a moderate front by using such politically soft terms as “culture of life,” a phrase that allowed him to convey opposition to abortion without coming out directly for overturning Roe v. Wade. That stance allowed him to mollify social conservatives without alarming average voters, who also may have taken some relief when, in the days before Bush’s first inaugural, Laura Bush appeared on NBC’s Today Show and said she believed Roe should not be overturned.

Four years later, abortion-rights advocates again sounded the alarm, warning of the looming vacancies on the high court that could endanger access to abortion. Once again, both presidential candidates played down the issue of abortion, and voters—a majority of whom back the right to abortion—re-elected Bush and strengthened the Republican majorities in the House and Senate, paving the way for the appointments—and subsequent confirmations—of Roberts and Alito.

“The tragedy is that neither Gore nor [John] Kerry chose to make it a major issue in their campaigns,” says Kim Gandy, president of the National Organization for Women. “Bush would never have been elected if they had.”

In the 2006 elections, pro-choice forces fought back. Voters selected more pro-choice lawmakers, thus picking up seats in Congress; turned back an effort to ban abortion in South Dakota; and rejected initiatives that would have required parental notification in California and Oregon. And in a stunning defeat for abortion opponents, voters in Kansas ousted a zealous anti-choice attorney general who had subpoenaed the records of 90 women and girls who had abortions in order to scour them for evidence of illegal procedures.

“When choice was on the ballot in 2006, pro-choice voters prevailed,” says NARAL Pro-Choice America president Nancy Keenan. That momentum will only grow over the next two years, now that the Carhart decision has put the threat to abortion in stark relief, she says: “The climate is changing a lot for us. The threat is much more real now. …People are concerned about the Supreme Court and they are concerned about what the next administration will look like. They’re starting to connect the dots.”