Albion Monitor /News

Abortion Rights Under Siege

by Jack Bradigan Spula

Many states now have obstructions to abortion access
NEW YORK -- "New York is one of the few safe states in the country," says Annie Keating.

Keating, program director for the National Abortion and Reproductive Rights Action League of New York isn't talking about things like auto accidents or exposure to toxic waste. She's focusing on an issue that's much less likely to pop up in conversation or on the nightly news, but is no less crucial to people's lives and health: women's access to abortion services.

New York State, says Keating, is a relatively good place in regard to reproductive health for one reason: Albany has so far imposed no legislative restrictions on abortion rights. Women in New York don't have to grapple with the obstructions -- waiting periods, parental-consent provisions, and other red tape -- that so many states have adopted in the 25 years since the U.S. Supreme Court issued a landmark opinion in Roe v. Wade.

Today four Supreme Court justices, just one vote short of a majority, are professed opponents of Roe
Women in other states, however, are surely facing some threats to their reproductive health and well-being. And while most Americans remain pro-choice (even if not pro-abortion), it's no exaggeration to say the U.S. is on track, and possibly the fast track, toward effectively repealing Roe.

On January 22, 1973, the U.S. Supreme Court formally recognized a woman's constitutional right to decide whether to carry a pregnancy to term (with certain qualifications past the first trimesster). But today, although women's abortion rights remain intact in law, they are everywhere obstructed in practice.

In slightly more than a decade following Roe, the Supreme Court did strike down a few legislative attempts to impede abortion rights. The decision in Planned Parenthood of Central Missouri v. Danforth (1976) nullified a provision requiring women to get their husband's consent for an abortion. Similarly, in Bellotti v. Baird (1979), the court struck down a Massachusetts law that required teenagers to get consent from both parents. In City of Akron v. Akron Center for Reproductive Health (1983), the court ruled against a local ordinance that required physicians to give anti-abortion literature to patients seeking abortions, imposed a 24-hour waiting period, and required parental consent without exceptions. Then in 1986, in Thornburgh v. American College of Obstetricians, the court again struck down a set of restrictions -- but only by a 5-4 margin.

When it comes to public funding of abortions, though, the Supreme Court has been less generous. In two separate cases in 1977, the court upheld state bans on the use of public funds for "medically unnecessary" abortions. And in 1980, with Harris v. Mc Rae, the court upheld the Hyde Amendment. Named for noted anti-abortion Congressman Henry Hyde of Illinois, this amendment cut off federal funds for abortions, except in cases of rape or incest, or a threat to the woman's life. (Roe, built on the constitutional right to privacy, had guaranteed abortion rights even in the last trimester to preserve the woman's life and health, a significantly broader concept.)

The court was only getting warmed up. In 1989, the Webster v. Reproductive Health Services decision upheld a Missouri statute banning abortions in public facilities. Then came Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which struck down a state parental-notification requirement but upheld a requirement that physicians furnish anti-abortion information to patients, a 24-hour waiting period, and other restrictions.

That the majority opinion was co-authored by Justices O'Connor, Kennedy, and Souter -- all appointees of fervent anti-abortionist President Ronald Reagan -- told much of the story. The court was slipping toward abandonment of Roe. And though a pro-choice president, Bill Clinton, has made more recent appointments to the Supreme Court, the fact remains that today four justices, just one vote short of a majority, are professed opponents of Roe. Small wonder, then, that in the years since Casey, state legislatures have felt free to enact restrictions on abortion anew.

The forces of rollback have caused an erosion of abortion rights as if "by sandpaper, a little here, a little there, grinding away," says Kathy Quinn Thomas, president of the Rochester chapter of the National Organization for Women.

Abortion opponents often frame the debate as they wish, just as they did in the fight over late-term abortion
At the Congressional level, the grinding is audible even here, 400 miles from Washington. Rochester-area Representative Louise Slaughter puts it bluntly: Abortion-rights supporters in the U.S. Congress, she says, "are losing all the votes that come up."

Slaughter provides an intimidating list of losses. The following new restrictions were signed into law in 1997 alone:

  • A ban on public funding of international family-planning services that provide abortion;

  • A ban on even privately-funded abortion on military installations;

  • A measure preventing federal employees from opting for health insurance that covers abortion services;

  • A ban on federal funding for research on human embryos;

  • The explicit extension of Hyde Amendment restrictions to women in Medicaid managed-care plans.

President Bill Clinton's veto has so far stopped enactment of the ban on certain late-term abortion procedures ("partial-birth abortions," in the anti-choice lexicon). But, as Slaughter says, Congress could be poised to override Clinton's veto.

If procedures like "dilatation and extraction" are outlawed, pregnant women in medical danger will have to undergo less-safe procedures in order to "save" a fetus already beyond saving. Some of those methods involve the insertion of sharp instruments into the uterus, or require the equivalent of a Cesarean section. In either case, the woman is exposed to wholly unnecessary risks.

The government shouldn't be in the business of passing legislation on matters that concern a woman and her physician, Congresswoman Slaughter says. But by the year 2000, she says, at the rate the federal government is going, there won't be any more abortion rights to protect.

Too often, says Slaughter, "choice has been taken for granted." Abortion-rights advocates, she says, often "leave the field" to abortion opponents. Then the opponents can then frame the debate as they wish, just as they did in the fight over late-term abortion.

Anti-abortionists' current strategy is less focused than it was when the "Human Life Amendment" to the U.S. Constitution was at the top of their agenda. But a less narrow focus doesn't equal less effort overall.

In fact, the anti's may be gathering strength from coalition-building.

The current "right-to-life" movement, says local Right to Life committee president Geraldine Oftedahl, has linked the questions of abortion and euthanasia. The movement, she says, is working on four fronts: traditional political action and advocacy; the operation of "crisis pregnancy centers" that offer counseling, adoption services, and the like; the promotion of church-based "pro-life" groups; and the cultivation of groups of anti-abortion medical professionals. Oftedahl highlights the cooperative efforts of groups like her own with Feminists for Life, the Christian Action Council, and others.

Nationally, less than 7 percent of abortions are performed in hospitals today, compared to more than 50 percent in 1973
On the anniversary of Roe, Thursday, January 22, local RTL members and their allies went to Washington, DC, to take part in a national protest against Roe, says Oftedahl. This and other indicators point to a central fact: The abortion debate isn't separate from a more pervasive religious and cultural conflict. Melanie Conklin, a writer with Isthmus, the alternative newsweekly in Madison, Wisconsin, recently cast some light on this facet of the problem for The Progressive magazine. With the rapid consolidation of managed care underway, she says, certain religious-based health-care organizations have been able to enforce their anti-abortion dogmas more widely than before.

Conklin points to Fidelis Care New York, an HMO formed by eight Roman Catholic dioceses. Late last year, she says, Fidelis purchased another HMO that had served 40,000 Medicaid recipients. Now Fidelis, under a "conscience clause" in New York State law, can tell its Medicaid clients they must go elsewhere for abortion services.

Fidelis is not yet a player in the Rochester area. But its example could spark interest -- and concern -- in Rochester as HMOs and managed-care become ever-larger facts of life here.

The medical establishment, we can assume, is no less supportive of abortion rights than is the rest of the population.

Yet health-care institutions have also left the field, in a sense: They've effectively constricted the right to choose by failing to provide reasonable access to abortion services.

Roe v. Wade made an important statement of moral principle, but was silent on most practical matters. Subsequent decisions have given aid and comfort to anti-abortionists, even while maintaining the core of Roe. And some anti-abortionists have resorted to more and more abusive, grisly, and brutal tactics: everything from systematic harassment of women at abortion clinics, to bombings and other destruction of property, to outright murder of health-care professionals.

The results have been predictable: According to the Alan Guttmacher Institute, a New York-based research center, 84 percent of counties in the U.S. in 1992 were without "identifiable abortion providers."

In New York State, around one-third of all Upstate counties have no legal abortion services within their borders, says NARAL-NY's Annie Keating. Women in these counties, she says, must often travel 50 to 100 miles for such services -- distances that are serious barriers, especially for poor women. One reason for the dearth of services, according to Keating: Most New York counties have hospitals with OB-GYN departments, but most of these hospitals don't provide abortion services. (In Monroe County, says local physician and abortion-rights advocate Eric Schaff, physicians are allowed to perform abortions, per se, in all hospitals except St. Mary's. And even in the latter, he says, emergency "completions" of pregnancies can be done, as medically necessary.)

Nationally, less than 7 percent of abortions are performed in hospitals today, compared to more than 50 percent in 1973, says a recent NARAL-NY review of several academic studies. One study, says the NARAL-NY review, found that the proportion of hospital abortion-providers dropped 18 percent between 1988 and 1992.

Certainly, says Annie Keating, the increase in the number of abortion clinics accounts for a good deal of this shift. Yet it's also clear that clinics, which tend to be located in urban areas, aren't positioned to serve a great many women. Hospitals are better spread out geographically. (But the issue of affordability comes up here, too. According to NARAL-NY, the cost of a first-trimester abortion done in a hospital is, on average, six times more expensive than the same procedure done in a clinic.)

This reality mirrors the situation in med schools. Nationally, only 7 percent of OB-GYN residents receive routine training in how to perform second-trimester abortions, and only 12 percent are trained even in first-trimester procedures, Keating says.

Coupled with this marginalization of training comes the "graying" of abortion providers, she adds. In many localities, she says, the only providers are physicians old enough to remember just how bad the pre-Roe days were, when "back-alley" abortions -- and dead and injured women -- were not uncommon.

Pro-choice New Yorkers "have a lot of battles to face," says Keating. "Every year," she says, "we get parental-notification bills coming up in Albany." But Keating remains most concerned about the marginalization of abortion. "We need to get abortion back into mainstream medical care," she says.

The obstacles to choice couldn't be more real. But more and more health-care providers are making technological end-runs around them.

New drugs decentralize abortion services, perhaps beyond the reach of anti-abortion "rescuers" -- but will medical abortion be allowed to revolutionize choice?
Just a few weeks ago, the New York Times published a front-page story on advanced surgical techniques that, as reporter Tamar Lewin wrote, "blur the line between contraception and abortion." These techniques, grounded in new, highly-sensitive pregnancy tests and better ultrasound imaging, allow the termination of a pregnancy at a very early stage, even before the woman has missed a period.

At this early stage, the entire gestational sac, says a national Planned Parenthood spokesperson quoted in the Times, is no larger than a matchhead and thus is "nobody's picture of a little baby sucking its thumb." (Most philosophical anti-abortionists, though, believe there's no difference between even a newly-fertilized egg and an embryo or fetus weeks or months later in pregnancy. They oppose the new surgical techniques as strenuously as they do any other method of abortion.)

Medical abortion -- that is, the use of medicinal abortifacients -- also has held out promise for those who believe that with abortion, earliest is best. High doses of contraceptives, for example, can be used within 72 hours of intercourse as an emergency "morning-after pill." And other compounds are coming on line.

For example, Dr. Eric Schaff has been studying and promoting the use of methotrexate and, more recently, mifepristone (popularly known as RU-486, even though this old label no longer applies, technically). Both compounds can be taken to terminate a pregnancy.

"Medical abortion does have the potential to revolutionize choice," says Schaff. Indeed, some analysts say this body of techniques can bridge the gap between contraception and abortion: Drugs like mifepristone, alone or in combination with other compounds, can be used before the fact as birth control, or after the fact as abortifacients. The drugs also are more convenient than surgical methods, though they still require the services of medical professionals.

Crucially, the new drugs decentralize abortion services -- perhaps beyond the reach of anti-abortion "rescuers" and protesters, who now focus on a small number of high-profile health-care sites.

But Schaff adds an inevitable proviso: will medical abortion be allowed to revolutionize choice?

RU-486 burst on the American scene some years ago -- in concept but not in substance.

Produced by the French pharmaceutical manufacturer Roussel-Uclaf, RU-486 has long been used in Europe. But the drug is barely being distributed in the US. Roussel-Uclaf, fearing retribution from anti-abortion fanatics, declined to market RU-486 here. Instead, the manufacturer ultimately donated the drug's U.S. patent rights to the Population Council, a not-for-profit group. But the council has so far been unable to find a domestic firm willing to manufacture the drug.

Roussel-Uclaf showed a serious lack of courage, or perhaps a too-serious concern for profits and image rather than women's lives and health. But precisely the qualities that the firm has in short supply -- courage and commitment -- are what's needed now.

And there's no lack of courageous people to emulate -- like the many women and men who walk the line as clinic defenders, or who make quieter sacrifices within institutions to care for women and preserve choice.

What Eric Schaff says is true: Roe v. Wade's guarantee of the right to choose seems to be pretty "mainstream" these days.

But mainstream doesn't mean impregnable.

This article first appeared in City Newspaper

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Albion Monitor February 2, 1998 (

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