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NATIONAL | winter 2006

Reproductive Rights on Trial - Again
Upcoming rulings in two Supreme Court cases may affect women’s
ability to safely access abortion.

As the debate rages over how to fill the pivotal Sandra Day O’Connor seat in the Supreme Court now led by Chief Justice John Roberts (UPDATE: Justice Samuel Alito was confirmed to this seat on January 31, 2006), two cases pending could have a significant impact on the future of abortion access. A defeat for pro-choice advocates in one may embolden anti-abortion extremists to escalate violence at clinics; a defeat in the other could lead to more severe restrictions on access to abortion.

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The first case is actually a pair of cases, Joseph Scheidler et al v. National Organization for Women et al (for background information see Ms. December 2002) and Operation Rescue et al v. National Organization for Women et al. The Court is considering whether to uphold a nationwide permanent injunction, in place since 1999, that protects virtually all abortion providers, their employees and their patients by prohibiting Operation Rescue and the Pro-Life Action Network (PLAN) from conducting blockades, trespassing, damaging property or committing acts of violence directed at the clinics.

The suit, first filed in 1986 by NOW and two clinics of the National Women’s Health Organization, charged the defendants - under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Hobbs Act and other federal laws - with a nationwide criminal conspiracy to close women’s reproductive-health clinics. In 1998, following a seven-week trial in federal district court in Chicago, a jury unanimously found 121 viola-tions of law that included extortion, violence and threats of violence. According to the federal district court judge who presided over the trials, there was enough evidence of illegal acts “to fill up this courtroom.”

After hearing additional evidence, the trial court issued the nationwide injunction, a major victory for providers and patients who were targets of anti-abortion violence and intimidation for years. It was designed to address PLAN and Operation Rescue’s pattern of moving across state lines, and from jurisdiction to jurisdiction. A loss of the injunction would force clinics, prosecutors and police to bring individual suits to protect individual clinics.

The Supreme Court in 2003 reversed the lower courts (and sent the case back to them), finding that 117 of the 121 violations - those related to extortion - were not violations of the Hobbs Act (which protects interstate commerce from violent interference). Still at issue are four violent acts or threats of violence, and the Court will now consider whether they constitute violations of law sufficient to support the jury’s racketeering verdict and the nationwide injunction — which is still enforced.

“This injunction has helped decrease violent attacks against women’s-health clinics nationwide,” says Susan Hill, president of the National Women’s Health Organization. “If the injunction is lifted, we fear the violence will surge again.” Adds NOW president Kim Gandy, “We have to protect women’s access to reproductive-health services from anti-abortion extremists. Racketeering laws designed to stop the Mafia are exactly what is needed to stop the self-described ‘pro-life mafia.’”

The second case, Ayotte v. Planned Parenthood of Northern New England, involves a 2003 New Hampshire law that makes it a crime for doctors to provide abortions to minors without waiting 48 hours after a parent or guardian has been notified. The only exceptions in the law are if the young woman’s life is at stake or if she goes to court and obtains a judicial bypass.

The New Hampshire lawmakers, however, did not include an exception for medical emergencies that could endanger a young woman’s health. Therefore, the law applies even if a delay in obtaining an abortion could cause serious and permanent health consequences for a young woman.

“Delaying appropriate care for even a short period of time can be catastrophic,” said Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project, while arguing Planned Parenthood’s case before the Supreme Court on November 30. For example, premature rupture of the amniotic membranes can cause serious infection and damage to major organs such as kidneys or the liver. Furthermore, says Nancy Mosher, CEO of Planned Parenthood Northern New England, “In a medical emergency, a woman needs a doctor, not a judge.”

Since the 1973 Roe v. Wade decision,the Supreme Court has held that it is unconstitutional for states to prevent a woman from obtaining an abortion
necessary to preserve her health. As recently as 2000, in Stenberg v. Carhart, the Court struck down a Nebraska abortion restriction that failed to include a health exception. Retiring Justice Sandra Day O’Connor cast the critical fifth vote in that 5-4 decision. The Ayotte case presents the Supreme Court an opportunity to either reverse course and not require a woman’s health exception, or adhere to a core principal expressed since Roe and reaffirm that a woman’s health must be protected.

The upcoming Ayotte ruling also could limit the ability of reproductive-rights advocates to prevent the application of harmful abortion laws before they go into effect and thus threaten women’s health. The Supreme Court could decide that abortion laws cannot be challenged until they have hurt a specific woman - an approach that has been rejected by a significant majority of the appellate courts. Until now, courts have been able to strike down abortion restrictions if it can be shown that the law would result in an “undue burden” and place a “substantial obstacle” in the path of a woman seeking an abortion, both without waiting for actual harm.

Oral arguments were heard in late November in both cases, and decisions will likely be rendered some time in the next few months.