How Women are to Cross a Raging River!

Dianne Post

14 January 2011

It may be apocryphal but there is a joke that someone asked George W. Bush what he thought of Roe v. Wade and he said that either one was a fine way to get across a river.  But it’s no joke that a few weeks ago I called the office of a local abortion clinic to ask if the doctor could speak on a panel on 22 January for NOW to celebrate the Roe v. Wade decision.  What sounded like a young woman answered the phone.  I asked if I could leave a message and said, “I would like to know if the doctor can speak on 22 January about Roe v. Wade for NOW.” 

By the dead silence at the other end of the line, I knew she had not understood me at all.  “Let’s go back.  Do you know what Roe v. Wade is?

“No.” 

After I collected myself from this breath taking statement I continued,  “Roe v. Wade was the Supreme Court decision in 1973 that made abortion legal.  Without it, you would not be working in an abortion clinic.”  I paused, “Are you serious that you are working in an abortion clinic and you don’t know what Roe v. Wade is?”

“Yes.”

“Okay. Do you know what NOW is?”

“No.”

By then, I expected that and went on to explain.  When I hung up, I had to take some deep breaths to regain any sense of calm.  The aphorism “those who don’t learn our history are doomed to repeat it” resounds.  How can young people pick up the human rights torch and carry it into the 21st century without any knowledge of where we came from or what we have been through?

Roe v. Wade is a decision of the Supreme Court in 1973 that held that the state criminal abortion legislation of Texas was unconstitutional.  The decision was anchored on the right to privacy found in the 1st, 4th, 5th, 9th and 14th amendments.  The criminal laws against abortion were fairly new, only 100 years old.  Prior to that, countries had different attitudes but often abortion was not penalized at all, and religion did not bar it.  Those places that prohibited it based it on the concept of a violation of the father’s right to his offspring.  That notion has been re-argued n modern cases. 

In common law, abortion before “quickening” (40-80 days) was legal.  After quickening, it was a misdemeanor. In the U.S. by the 1950s, abortion was illegal unless it was found by two physicians that it was necessary to save the life of the mother.  By 1967 the AMA had adopted the U.K. concept that abortion was allowed if there was risk to the life or health of mother or her existing children or there was a substantial likelihood that the fetus had serious physical or mental abnormalities.

The court in Roe made the point that when the Constitution was written, women had far greater right to terminate a pregnancy than they did by 1950.  Those justices, such as Scalia, Thomas and Roberts, who think we should decide Constitutional questions today based on what existed at the time the Constitution was written, should thus support the abolition of all abortion restrictions.  But of course their forked tongues are obvious e.g. when Scalia voted in Citizens United that corporations are “persons” under the 14th Amendment but said in a speech in December 2010 that women are not.  Corporations did not exist when the Constitution was written; women did.  

The focus of the Roe v. Wade decision was on the right of the doctor to advise and treat the patient not on the right of the woman to make decisions about her own body and life. Justice Blackmun who wrote the opinion had been the chief lobbyist for the American Medical Association (AMA), and he was the pivotal vote on the case.  Thus the reasoning was based on medical knowledge resulting in the trimester system. 

Opponents of abortion advanced three arguments.  Criminal abortions would  discourage illicit sexual conduct.  This argument was not seriously made.  Abortion was a dangerous medical procedure and women often died.  Modern medical techniques have changed, and this was no longer true by 1973.  The third reason is the state’s interest in protecting prenatal life.  Part of this claim rested on the belief that life begins at conception, a religious not medical position.  However, the court focused on “potential” life so as not to give weight to the religious argument. 

The court acknowledged that the right of privacy upon which Roe is anchored is not explicitly mentioned in the Constitution, but for decades it has been recognized that it exists – in home pornography, in searches, in schooling, in marriage, in child rearing, in procreation and in contraception.  The Court said that right to privacy, and the 9th amendment reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.  However, the court made clear that the various factors will be considered by the woman and her responsible physician.

The court did not agree with “abortion on demand” but said the state had some interest in protecting the health of the woman and the potentiality of human life. Interests of the mother and fetus are separate and distinct and the balance changes as time passes.  Thus the court returned to the “quickening” structure and set up the trimester system.  The first trimester, “the attending physician, on consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated.”   Roe v. Wade never gave women the right to determine their own health needs, regulate their own bodies, or control their own pregnancies.  It gave that right to the physician.  In summing up, the court said, “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”  In this iteration of their holding, women are left out all together.  It’s up to the physician.  Not even the woman and the physician together.

The second trimester, regulations can be imposed for health reasons.  The third, allegedly after viability, it cannot be done except to save the health or life of the mother.

            In a companion case, Doe v. Bolton, the doctors were the ones who faced threat of criminal prosecution.  Blackmun, the AMA lobbyist, wrote this opinion as well.  He quotes Roe, “Roe v. Wade, ante, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand.”  Thus putting the lie to todays opponents objection to abortion on demand.  It never existed and doesn’t today.  But the fanatic Right have never let facts stand in their way.

The statute in Doe allowed the physician the clinical judgment to determine when an abortion was “necessary”, but outlined onerous procedures. The court held that the procedures were overbroad, not grounded in medical reality and restricted the doctor’s right to practice and violated his due process.  Never mind the pregnant woman. Thus clinics and non-hospital procedures were allowed.

The pro-doctor bias was more than clear in the next provision where the woman in Doe attacked the procedure of having to go before a committee of doctors to get permission for an abortion.  Blackmun was offended that someone would think doctors could be biased or unprofessional but instead claimed they “will have a sympathy and an understanding for the pregnant patient that probably is not exceeded by those who participate in other areas of professional counseling.”   Many of us can testify to the bias of doctors, male or otherwise.  Note it’s a pregnant “patient” not a woman though they are the only ones who could be pregnant.  This sets up the later case when the court says that discrimination against pregnant persons is not discrimination against women. 

And besides, Blackmun went on, the hospital has rights too.  It can refuse to admit a woman for an abortion or refuse to have an abortion committee.  A physician or employee can refrain from participating in abortion.  But still, the Court overturned the committee saying it was duplicative of the physician’s own decision and therefore not necessary nor was the additional approval of two Georgia licensed physicians.  “Required acquiescence by co-practitioners has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice.”  Again the focus is on the doctor’s right, not the patient.  The emphasis on doctor’s rights means they can also refuse to do an abortion, and in fact the law provided for the right of physicians to refrain for moral or religious purposes.  That part of the law was not attacked.  Again, todays opponents who claim we need laws to allow people to opt out for personal reasons are lying.  They always could.  The hospital, the doctor and the employee have rights but the pregnant woman, as her own decision maker, does not.

A residency requirement was struck down as violating the right to travel.  The argument was made that the provision violated equal protection because it discriminated against the poor.  Rich women could travel elsewhere to get their abortions.  The court claims that because they have rejected the hospital and co-physician requirements, the discrimination argument also falls so they don’t address it further.  Discrimination between women and men in obtaining health care services was never mentioned.  Today some fault this strategic decision but as we know, hindsight is 20/20.   Justice Douglas does mention the “liberty” of the mother in his concurrence but only to say it can be curtailed.

It is clear that the arguments made for Roe v. Wade and the rationale of the court were not undergirded by any respect for women or women’s rights.  I understand the reasons of the proponents.  They did what they thought would win to save women’s lives.  The court then as now does not view women as whole human beings deserving of full recognition and acceptance under our laws.  Scalia’s recent remarks are just one drop in a stream of contempt for women.

Ever since the decision was announced, it has been attacked. The year after the decision 200 bills were introduced in state legislatures but only 23 passed.  Many of them were declared unconstitutional immediately.  The types of bills included requirements to use hospitals, consent by parents for a minor or by the sperm donor, no federal funding – including military women raped by military men which is still in place today - and residency requirements.  Many of the same attacks are still going on 37 years later with added ones about late term abortions, states rights to prohibit the procedure, fertilization as conception making a fetus a “person” under the 14th Amendment though, according to Scalia, women are not.  It would not be beyond belief that the unborn, if residing in wombs of residents or legal aliens, would be defined as “persons” under the 14th amendment while women are excluded.  Such is the perverted mindset of some legislators and Supreme Court Justices today.   

• 1976, the Hyde Amendment passed Congress and barred spending federal Medicaid funds on abortions except when the woman’s life is endangered, later rape and incest were added. 
• 1989, the Supreme Court upheld a Missouri statute requiring doctors to perform tests to determine the “viability” of the fetus and barring abortions performed by public employees at public facilities or through the use of any public resources.
• 1990 – the Supreme Court ruled that Minnesota could require that a pregnant minor notify both her parents so long as she has an alternative of obtaining a judge’s permission.  Often it will be the parent who has impregnated her. 
• 1991 – the Supreme Court ruled that federally financed clinics are not allowed to even mention abortion services to their clients.  I guess the First Amendment does not apply to them. 
• 2010 – the Stupak amendment passed Congress prohibiting abortion coverage under new health care revisions.

 

In 1992 a case changed the landscape of Roe v. Wade.   Planned Parenthood v. Casey  was written by Justice Sandra Day O’Conner.  Roe was reaffirmed, but the language was changed to say that the state has a legitimate interest in protecting the health of the woman and life of the fetus from the onset of pregnancy.  That is different than from viability and gives the state the ability to regulate abortion from conception rather than from viability.  This is very dangerous for women and has been used with a vengeance against Native Americans and other women of color.

The court said the principles had to be re-examined because of the decisions since 1973, the openly stated desire of Rehnquist to overturn Roe, and the states and courts that need adequate guidance.  According to O’Conner, Roe determined that a woman’s decision to terminate her pregnancy was a “liberty” protected against state interference by substantive due process under the 14th amendment.   However, “liberty” was mentioned by Douglas in the concurrence, and Roe was based on more than the 14th, but also on the 1st, 4th, 5th and 9th amendments as well as the “penumbra” of the Bill of Rights.  Because O’Conner called the right a substantive due process claim, she could say that it needed to be re-examined to determine the boundary of liberty and the demands of organized society.  But Roe was never about a woman’s liberty or even her privacy.  It was about doctor’s rights. 

O’Connor did say that stare decisis requires that Roe be reaffirmed, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”, so Roe’s central ruling is still valid.

Later in the decision, she says that the central holding of Roe was that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a ban on non-therapeutic abortions.  With medical advances, viability has been pushed backwards.  However, since there is no factual or precedential reason to overturn Roe, the only reason to do so would be because this court likes a new doctrine, and that is not reason enough to overturn a prior case because it clearly would be surrendering to political pressure, which the Court cannot do.  I guess they, and she in particular, forgot that principle by Bush v. Gore. 

So in Casey, the trimester scheme was rejected and replaced with a vague standard of “undue burden” i.e. if the purpose of the restriction is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability, then it is an “undue burden” that won’t be allowed.  The state can try to inform the woman about medical issues, and if that purpose is to persuade  the woman to have the child, that’s acceptable.  The state can enact regulations to further the health or safety of a woman seeking an abortion but not impose unnecessary health regulations that present a substantial obstacle, and a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.  That is not what Roe held, so the language in Casey gives a woman more rights in that sense.

But what good is a right without a remedy? If a woman cannot access an abortion, she can’t get one.  Fewer and fewer facilities and doctors are available who will do abortions.  Some states have one or none.  Today medical schools don’t teach it.  Doctors who perform abortions are murdered.  The vast majority of abortion providers (89%) report some type of harassment, a significant increase from the 81% who reported it ten years ago.   Most women have to pay for an abortion out of their own pocket, and it runs about $461.  That is why in Arizona we have created “It’s Your Right” fund to help women meet those costs as well as travel, childcare, motel if an overnight stay is necessary etc.  Donations are accepted.

Here we are, thirty-eight years after Roe v. Wade with legal abortion hanging by a thread and abortion access shrinking.  In Phoenix, we have just witnessed the absurdity of the Catholic bishop trying to dictate medical care.  By arguing that the woman should have been left to die with the fetus, the church has made clear that to them, women have no value except as breeders. Let’s not forget – if you turn control of reproduction over to the state and the state can prohibit abortion or birth control, which some opponents consider the same thing, than the state can also force a woman to have an abortion and sterilize certain women as well. We’ve been down this road before, as has China. We should have learned something from that.  Or like the young woman on the telephone, are we doomed to repeat our history?