-BERNARD SHIRE, spokesman for the Pennsylvania Catholic Conference
-PATRICIA IRELAND, president of the National Organization for Women
When the smoke cleared, Roe v. Wade, the 1973 decision legalizing abortion, was still the law of the land. But even as the court upheld the spirit of Roe, it once again cut back its reach: states are free to restrict abortion, as long as they do not place an " undue burden" on a woman. Using this standard, the majority held that Pennsylvania could not force a woman to notify her husband about an abortion. It could, however, impose a 24-hour wait; require doctors to tell women about other options, or “informed consent”; demand parental notification for minors, and make doctors provide statistical information about patients. While pro-choice advocates were quick to say that all restrictions are burdensome and unnecessary, right-to-lifers were obviously pleased. " The provisions aren’t nearly enough, but at least they put some controls on an industry that’s been operating above the law for 20 years," says Denise Neary, executive director of the Pennsylvania Pro-Life Federation.
Even before last week, many women were baffled by the status of abortion rights in this country. With the adoption of the " undue burden" concept, the landscape became even murkier. What is clear is that Casey will have a profound, day-today impact on doctors, lawmakers, activists and, most intimately, women. A look at the real world of abortion:
“Oh, good, you are still open. " According to Elena Love, those were the first words on the lips of women phoning her Nashville abortion clinic the morning after Casey. The fact remains, however, that many Americans already have limited access to abortion (chart). In many regions, the main hurdles aren’t statutory, they’re circumstantial. The National Abortion Rights Action League (NARAL) head Kate Michelman says that Casey contributes to a two-tier system. Educated, affluent women who need an abortion will always find a way; the young, the poor, the rural and the ignorant are at a severe disadvantage. Most Midwestern and Southern states have few clinics, mostly clustered in urban areas. North Dakota is a striking case in point. The Fargo Women’s Health Organization is the state’s sole abortion facility. " It’s not unheard of for women to travel six to 10 hours to get here,” says Jane Bovard, the clinic’s administrator.
For women covering such distances, a 24-hour waiting period can make a formidable process impossible, say pro-choice advocates. A woman with a good babysitter or a sympathetic spouse may consider the wait a mere hassle; for someone who can’t afford an overnight stay, it could, in fact, be an “undue burden.” And “24 hours” often turns into three or four days because of scheduling difficulties at understaffed clinics.
For the last few years, right-to-life militants have made it their mission to block entry to such clinics. One group, the Lambs of Christ, targeted Bovard’s facility last summer. With Operation Rescue’s leader Randall Terry saying the court had stabbed the movement in the back, the group got ready to protest in Baton Rouge, La., this week. The city’s response: a six-foot fence around the targeted facility.
Parental-notification and -consent requirements are a particularly thorny issue. Polls show that most Americans believe parents should know about a child’s abortion plans. But what about a young person with abusive parents, or an incest victim? The Supreme Court has ruled that notification and consent provisions are valid as long as states provide a “judicial bypass” option allowing minors to seek permission from a judge in lieu of a parent. Because that process can be intimidating-“You can imagine a 15-year-old sitting before five male judges all in robes,” says Shreveport, La., clinic director Robin Rothrock–abortion-rights advocates are stepping up efforts to shepherd girls through the courts. NARAL is planning a teen hot line to provide information on the new law.
The most controversial tactic is one adopted by the Overground Railroad, a network set up three years ago by Philadelphia Quakers. The group offers housing, transportation and escorts to women trying to circumvent local restrictions. Donna Lieberman, a lawyer with the ACLU in New York, says it is legal to take a willing minor across state lines. Right-to-Life activists are outraged. " You have to consider the legal implications involved when adults take underage girls across state lines without their parents’ consent," says Olivia Gans, spokeswoman for the National Right to Life Committee. " Whether this could be construed as kidnapping is something to be decided by lawyers, but it has to be of great concern to parents."
The inevitable spate of lawsuits following Casey may benefit litigators, but physicians who perform abortions have little reason to cheer. Recent decisions have increased state intrusion into the doctor-patient relationship. Some physicians worry that as a result of regulations, they won’t be able to manage patients in the way they believe is best for them. One Nevada doctor says that even though the state has no spousal-consent requirement, a judge recently put him under an injunction at a husband’s request-midway through a two-step, two-day abortion procedure in the second trimester. Had he been unable to convince the husband that the wait would endanger his 18-year-old wife, he would have had to choose between risking his patient’s health and being held in contempt of court.
By and large, the medical profession has taken itself out of the fray. Given the climate of harassment in recent years, fewer doctors have been willing to perform abortions. Many of those who do are veteran practitioners who remember the coathanger days. “I’m old enough that I saw the illegal-abortion problems,” says Dr. Buck J. Williams, South Dakota’s sole provider. At present, the procedure is routinely taught in only a quarter of all OB-GYN training programs. Planned Parenthood is planning a teaching program for young doctors.
From now on, legislatures will be a key battleground, as right-to-lifer lawmakers attempt to get new restrictions on the books-and pro-choicers try to keep them out. Like Webster three years ago, last week’s ruling in effect invited states to pass new restrictions. In Oklahoma, both sides believe the state Supreme Court will certify a voter referendum that, if passed, would ban abortions in most circumstances. And in Arizona, it looks likely that a sweeping anti-abortion petition will gather enough signatures to go on the ballot in November. NARAL says there are 26 states that are likely to enact more stringent laws or enforce existing prohibitions. Many states have measures enjoined by the courts pending appeal. According to Burke Balch, state legislative director of the National Right to Life Committee, it will be up to individual attorneys general to petition courts to lift injunctions; in states such as Massachusetts and Maine, which have pro-choice A.G.s, injunctions are likely to remain in place.
In last week’s decision, the justices observed that the “United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.” Though they sounded downright irritable about this undue burden, the decision they rendered ensures they will review the bidding again-and soon. Stringent statutes from Louisiana, Utah and the territory of Guam are winding their way to the highest court. And new test cases are in the works. The ultimate outcome is uncertain, but for millions of American women, there are likely to be more obstacles along the way.
How the states line up on key abortion restrictions:
A Enforced parental-notification laws B Nonenforced parental-notification laws C Minors can bypass parental notification with a court order D Mandatory counseling about fetal development and abortion alternatives E Waiting period, typically one day F No public funding except when mother’s life is endangered Alabama A, C, D, F Alaska B, D Arizona B, C, F Arkansas A, C, F California B, C Colorado B, F Connecticut Delaware B, D, E, F Florida B, C, D, F Georgia A, C, F Hawaii Idaho A, D, E Illinois B, C, F Indiana A, C, D, E, F Iowa Kansas A, C, D, E, F Kentucky B, C, D, E, F Louisiana A, C, D, F Maine D, E, F Maryland B, D Massachusetts A, C, D, E Michigan A, C, F Minnesota A, C Mississippi B, C, D, E, F Missouri A, C, D, F Montana B, D, F Nebraska A, C, D, F Nevada B, D, D, F New Hampshire F New Jersey New Mexico B, F New York N. Carolina N. Dakota A, C, D, E, F Ohio A, C, D, E, F Oklahoma F Oregon Pennsylvania B, D, D, E Rhode Island A, C, D, F S. Carolina A, C, F S. Dakota B, D, E, F Tennessee B, D, E, F Texas F Utah A, D, F Vermont Virginia D Washington W. Virginia A, C Wisconsin A, C, D Wyoming A, D
(Sources: Nat’l Abortion Rights Action League; The Alan Guttmacher Inst.)
