Roe v Wade – It's Not for Everyone

1973 started on a Monday. It was the year of the Ox. Steinbrenner bought the Yankees for $10 million and the cost of a first class stamp was eight cents. (The median household income was only $10,512 so stamps had to be cheap.) The second highest grossing film was Deliverance which was released months before the U.S. ended involvement in Vietnam. The always bold and forward thinking State of Ohio became the first U.S. state to post metric distances on its signs. 1973 was the year David Blaine entered consciousness on this planet, and the year Bull Connor, Lon Chaney Jr and Bruce Lee passed on. In May 1973, the Watergate Hearings began and in June, Mark Felt resigned from the F.B.I. And, of course, Johnny Miller shot 63 at Oakmont Country Club to win the U.S. Open.

1973 also marked a turning point for the extreme right wing. Not since the Scopes Monkey Trial had we seen them so voracious. The fight against science had really taken a lot out of them and they were unorganized and scattered. But in Roe v Wade, they found a cause they could be united in - the oppression of women and minorities. And so, armed with nothing but the Bible, a coat hanger and a legendary bloodthirst in the name of Christ, ultra-conservatives began the battle to chip away at women's constitutional rights.

I was born in 1976 (a leap year starting on Thursday), so I've never lived without the protection of my rights Roe affords me. I can't really grasp the concept of life without Roe and neither can most women I know who are my age. And that is wonderful. But it's also dangerous. It's dangerous because we take it for granted, of course. But what I think is even more dangerous is that when it comes to abortion, we're forced to fight for rights we already have. The pro-lifers get to go on a crusade while the pro-choicers have to stay home and guard the fortress. Playing defense never riles people up the way playing offense does. You can't forget to attack. But you can forget to defend.

The 1973 Supreme Court decision in Roe v Wade found a woman's right to choose abortion was protected by the 14th Amendment's right to privacy. The court divided pregnancy into trimesters and allowed regulation of abortion only when the viability of the fetus became a "compelling" interest for the state.

The court held that:

a) 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.

b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

c) For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate and even proscribe abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

For the first time in America, all pregnant women regardless of their economic status could choose to have an abortion up to the third trimester. No longer did women have to resort to what Emma Goldman called the "fantastic methods despair could invent: jumping off tables, rolling on the floor, massaging the stomach, drinking nauseating concoctions and using blunt instruments." Those days were over. We had won. Or had we?

In 1976, only a year after being sworn in as a U.S. Representative, an Irish Catholic Democrat-turned-Republican from Illinois, Henry Hyde burst onto the scene with an amendment that would be the first successful attack against abortion rights. The proposed Hyde Amendment would eliminate all federal funding for abortion. The year it was introduced, the amendment passed in the Senate without much of a fight. It seemed clear that it was nothing more than a shot at poor women and that the U.S. Supreme Court, just years after deciding Roe, would declare the amendment unconstitutional.

As expected, the law was challenged. But not so expected was the 1978 U.S. Supreme Court decision stating that "the Equal Protection Clause does not require a state participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth" (Maher v Roe, 1978). In other words, the court said that a state refusing to pay for abortions or abortion counseling while still providing full coverage for childbirth expenses is not restricting a woman's right to have an abortion. It is simply making a "value judgment" promoting childbirth over abortion which it has every right to do. The woman is still capable of finding a private abortion provider and using her own funds.

The court also well knows its decisions will have the practical effect of preventing nearly all poor women from obtaining safe and legal abortions, and will brutally coerce them to bear children whom society will scorn for every day of their lives.

Supreme Court Justice Thurgood Marshall - responding to U.S. Supreme Court Decision, Maher v Roe

Imagine that you are a young mother on Medicaid. Your birth control failed and you become pregnant. You already have two children and you only work part time because you cannot afford child care. Your partner makes minimum wage. Finances are tight and you basically live paycheck to paycheck. The average abortion ranges in cost from $350 - $4,000 depending on where the procedure is done and the term of the pregnancy. The further along the pregnancy, the more it costs. Depending upon where you live, you may have to drive a long distance and spend the night either before or after the procedure. If you live in a state that requires a 24-hour waiting period, you will need to make two separate trips. You will need to arrange for child care both for your counseling appointment and your actual appointment. You will also potentially lose up to two day's pay and perhaps your job. If you do not have a car, you will have to rent one or find an alternate mode of transportation.

If it takes you too long to save money for transportation, child care, overnight shelter and the procedure itself, you may have more trouble finding a provider as the vagueness of the recently signed "Partial Birth Abortion Ban" has frightened many doctors into canceling all second trimester procedures. How do you get the money? What do you decide to skip that month - the electricity bill, food, medication? How long will it take you to make up the lost funds? By the time you realize you have been turned down by Medicaid, how long do you have to save up the money it will cost you to act on your constitutional right to have an abortion? How many women, because of the Hyde Amendment, have been prevented from having a safe, legal abortion?

Rosaura Jimenez was 27 years old and a mother of a five year-old. She was 6 months away from receiving a bachelor's degree in Education. This must have been a source of great pride for her and her family who were Mexican migrant workers. Rosie was a Medicare patient. She is also the first recorded death resulting directly from restrictions made by the Hyde Amendment. Because her plan would not pay unless her life literally would be threatened by carrying the fetus to term, she received a back alley abortion performed with dirty instruments. She died less than 24 hours later from an infection similar to tetanus. The real tragedy of Rosie's story is that she died with a $700 scholarship check in her pocket. She was determined to use that money for its intended purpose: to help her finish her final term in college so that her five year old daughter would never have to work in the fields as she had.

Rosie was one of four women that year whose deaths the CDC directly linked to the restrictions created in the Hyde Amendment, but every year since 1976, a version of the Hyde Amendment has been attached as a rider to the annual Labor/Health and Human Services (HHS)/Education appropriations bill. And every year it passes. Though extremely poor women feel its effects the most, the Hyde Amendment doesn't just affect women on Medicaid. Through the years and today, the bill has passed with abortion rights restrictions for military personnel and their dependents, federal workers and their dependents, Peace Corp volunteers and Native American Women. Some years it has restricted funding only to "medically necessary" abortions. Some years, it includes funding for victims of incest or rape.

After only 4 years, the women who needed reproductive rights protection the most were forced again turn to Goldman's "fantastic methods" to try to maintain control of their bodies.

For the women I come from, the women who brought me up, choice is basically a myth. Reproductive freedom comes with a big price tag and if you have no money, then you have no choice. In my neighborhood and in my family I watched women take pills, pitch themselves down flights of stairs and drink and douche with all kinds of concoctions in attempt to force miscarriages on their bodies because those bodies go unprotected by the 'right to choose.' If you are too young, too poor, or a color other than white, then the coat hanger desperation everyone else left behind in the '70s is alive and well for you. That desperation was alive and well for my friends, my cousins, my own mother - right here in 2003, almost thirty-one years after Roe.

Jenna McKean, 23 years old - grew up on welfare in South Pennsylvania

As of 2004, 32 states receiving federal Medicare funds followed the federal standard for abortion: providing coverage only in cases of life endangerment, rape or incest. Additionally, 17 states funded abortions in cases of extreme physical threat of the mother. Of those 17 states, only 4 provide the funding voluntarily - the rest have been court ordered to do so. One state, South Dakota, is apparently in violation of federal standard as it only provides abortion coverage in the case of life endangerment.

If there were no federal, local or state legislation mandating Medicaid in case of life endangerment, rape, incest, and physical endangerment of the mother only FOUR states voluntarily provide it. That's why we have the laws, you say. Well, that's where things get tricky.

On December 8, 2004, George W. Bush signed the Hyde-Weldon Amendment written by Congressman Dave Weldon at the behest of Henry Hyde himself. The Amendment essentially states that any "health care entity" can refuse the right to perform, finance, provide coverage, or refer for abortions without any fear of retribution under local, state or federal laws. The enforcement of these laws could fall under what Weldon and the anti-choice groups call "discrimination" of providers, hospitals, insurance plans, HMO and, yes, Medicaid plans, that refuse to perform abortions. Any government which discriminates against these groups loses all of its funding under the Health and Human Services Appropriation Bill.

Remember those states that only provide Medicare funds for life endangerment or extreme physical damage to the mother because they are required to under federal and state law? They don't have to worry about it anymore. Because of Hyde and Weldon, no one is going to prosecute them.

The enactment is the culmination of a four year effort by the National Right to Life and a coalition of other groups, including the U.S. Conference of Catholic Bishops, the Southern Baptist Convention, the Catholic Health Association, and the Family Research Council.

National Right to Life website - on the passage of the Hyde-Weldon Amendment

The Weldon Amendment would radically alter existing law by providing broad license for all manner of health care entities - from hospitals to insurance companies to HMOs - to avoid basic legal requirements imposed by all levels of government.

The ACLU - in a letter to Sen. Barbara Boxer (CA), 11/04

So how the hell did this amendment get through Congress? Because its proponents, like many politicians, are sneaky, sneaky people. It was stuck in a budget that provided funding for a lot of government agencies. The National Right to Life Foundation seems very proud of this tactic, declaring on its website: "its enactment was necessary to fund most government agencies, leaving the pro-abortion lawmakers with few options."

Currently, there is a lawsuit in D.C. District Court filed by the California Attorney General, Bill Lockyer challenging the law on the basis that it affects the state's sovereignty. And apparently U.S. District Judge Jeffrey White agrees with him. Last week, White issued an order rejecting the federal government's request to dismiss the case, saying Lockyer "sufficiently alleged an injury to California's sovereign interest in the continued enforceability of its own statutes." And Barbara Boxer has vowed to change the language this fall. Let's hope our folks in Congress are successful.

But of course, our battle isn't just fought in the Legislative Branch.

While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.

Chief Justice William H. Rehnquist - Planned Parenthood v Casey concurring/dissenting opinion

When Sandra Day O'Connor announced her retirement, I immediately received hundreds of e-mails saying that now was the time to "SAVE ROE!" As scary as it is, I'm kind of glad her retirement has brought the "Save Roe" people back to the forefront. Because Roe hasn't been safe for quite some time, even without Congress screwing it up.

From 1973 to the 1980s, the U.S. Supreme Court expanded on and further defined the rights upheld in Roe in several cases (Akron, 1983; Thornburgh, 1986; Babbitt, 1986). Among other things, the court consistently ruled that requiring 24 hour waiting periods, parental and spousal consent, and state mandated information describing the development of the fetus be provided to the patient unconstitutional.

From 1981 - 1988, four Reagan appointees were confirmed by the senate as Supreme Court justices. In 1990 - 1991, two Bush I appointees were confirmed. In the years 1988 - 1991, the court overturned its decisions on waiting periods, parental consent and state mandated information. It also declared that the Missouri law which stated that life begins at conception was constitutional because the statement was, ajudgmentvalue judgement" and could not be used to hinder a woman's rights.

By 1992, 6 of the 9 Supreme Court seats were appointees of administrations that made no bones about their anti-abortion stance. And in 1992, in the case of Planned Parenthood v Casey the court effectively nullified all of the rights granted under previous U.S. Supreme Court abortion cases. This was the closest we've come so far to out and out overturning Roe v Wade.

In the joint decision of the court, O'Connor wrote:

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

But Rehnquist disagreed that the joint opinion upheld the essence of Roe, saying:

Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny" and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court's decision making for 19 years. The joint opinion rejects that framework...

...this state of confusion and disagreement warrants reexamination of the "fundamental right" accorded to a woman's decision to abort a fetus in Roe...

... In evaluating abortion regulations under that standard, judges will have to decide whether they place a "substantial obstacle" in the path of a woman seeking an abortion. In that this standard is based even more on a judge's subjective determinations than was the trimester framework, the standard will do nothing to prevent "judges from roaming at large in the constitutional field" guided only by their personal views...

I can't believe I'm saying this, but I think William Rehnquist has a lot of good points. I don't think the current laws uphold the essence of Roe v Wade. The standards of the law are too subjective.

I get scared when I think that my rights depend on the court, state or federal government's definition of "viability" while George W. Bush is signing "Partial Birth Abortion" bans, Missouri state law says life begins at conception and at least one member of the U.S. Senate is at home cuddling a miscarriage.

I don't like it when I find out that Antonin Scalia gets to decide what is an "undue burden" to place in front of women seeking abortion.

I'm a little disconcerted that WOMEN'S RIGHTS are in the hands of Clarence Thomas. I don't think a woman's anything should be in the hands of Clarence Thomas. But I think he's all too happy to grab hold of our rights (and our asses) without fear of judgment.

But unlike Rehnquist (thank GOD I finally get to say that), I don't think the answer is to overturn Roe v Wade. I think the answer is to stop Congress and the Supreme Court from chipping away at it until there's nothing left.

This is how they will win. They will not march valiantly into the Supreme Court shouting "overturn Roe v Wade now!" They will make it more and more difficult for women to receive abortion counseling or services. They will make sure that no one can get a referral. They will loosen laws against anti-abortion protesters. They will, piece by piece, destroy the right that many of us have never had to live without. They will make the point that Roe is irrelevant in the face of the new laws. And they'll be right.

And it will be nice, and quiet, and almost imperceptible until it's done.

They are sneaky. Politics is sneaky.

The shell of Roe v Wade remains. The next few months will be extremely important. But we can't just pay attention to the initial confirmation hearings and forget about it. We can't get too involved in the exciting shouting matches over ideologies and ignore the boring budget amendments. We have to watch Congress; we have to watch the courts. We have to find out when someone is passing a Weldon Amendment and we have to fight against it. We have to have a voice coming from the left because the right damn sure has a voice. And it is LOUD.

So we'll just have to be smarter than they are.

Love,

DID YOU KNOW?

Abortion
49% of American women find themselves unintentionally pregnant.
Of those 49%, half terminate the pregnancy through medical means.
Between 1973 and 2002, more than 42 million women chose safe, legal abortion.
4 out of 10 girls in the United States get pregnant at least once before age 20.
Source: The Alan Guttmacher Institute.

Some Current Legislation Introduced in the House and Senate in 2005:
S. 51: Unborn Child Pain Awareness Act of 2005
A bill to ensure that women seeking an abortion are fully informed regarding the pain experienced by their unborn child. (Brownback, R-KS)

H.R. 776: Sanctity of Life Act (2005)
To provide that human life shall be deemed to exist from conception. (Paul, R-TX)

H.J. Res. 4:Proposing an amendment to the Constitution of the United States with respect to the right to life
(Emerson, R-MO)

H.R. 522: To implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn* human person
(Hunter, R-CA)

S. 839: Access to Reproductive Health Information Act
A bill to repeal the law that gags doctors and denies women information and referrals concerning their reproductive health options. (Boxer, D-CA)**

H.J. Res. 31: Proposing an amendment to the Constitution of the United States relating to equality of rights and reproductive rights
(Jackson, D-IL)

*When my spell check flagged this word, it made me so happy.
**Thank god for Barbara Boxer. I think we should all send her fruit baskets.

8:00 AM

7 comments

Comments

Dear Sisk,

Thank you for carrying on the fearless fight against those who want to punish women for having sex (the so-called “right to life” folks are merely women-haters who want to punish women for having sex, but who are too gutless (or too clever) to be honest about it). Many years ago, back in 1966, I helped found the Stanford University Chapter of the California Committee to Legalize Abortion (CCLA). It was basically an offshoot of our Stanford Sexual Rights Forum (SSRF). We handed out leaflets on campus, sold buttons and wrote letters to state legislators and to newspapers. In 1967, the California state legislature passed a very restrictive California Therapeutic Abortion Act, which was signed into law by then Governor Ronald Reagan. In 1972, the California State Supreme Court tossed out the restrictive character of this Act, and thus basically made abortion a legal medical procedure in all California hospitals. In 1973, the U. S. Supreme Court made its famous Roe vs. Wade ruling which legalized abortion in all fifty States. Since then, the forces of darkness and repression have been trying to turn the clock back to that good old 19th century…

Yours truly,

James K. Sayre
sayresayre@yahoo.com
www.bottlebrushpress.com

5 July 2005

# posted by James K. Sayre : 7/05/2005 2:39 PM

James -

thank YOU so much for reading. Your work with the CCLA sounds really interesting. While I am very good at researching and reading about things, I don't have much experience in organizing. I'd love to pick your brain sometime!

Sisk

# posted by Sisk : 7/06/2005 10:49 AM

Sisk,
So glad to see a Rodent defending our rights!
Have you heard any rumblings about the Teri Schivo(sp?) case relating tho this? I was talking to a friend who was theorizing the reason W got involved in that case was so the "right to life" issue could be brought up later to challenge Roe vs. Wade. . . which I can see being blatantly twisted for the conservative agenda.
Thank you for the work you're doing.
Best,
Louise Casini
Memphis, TN

# posted by Ches : 7/06/2005 5:02 PM

Louise! I'm so glad you wrote.

First of all, thank you for reading. Knowing my Memphis peeps are with me makes my heart feel all warm and fuzzy.

The Schiavo disaster. Ugh. It makes me so upset just thinking about it. It also makes me really want to get a living will, etc. together.

The gall of George W. Bush to say he is pro-life and throw himself into this very private affair after executing almost everyone in Texas and then signing a bill that would allow poor people in hospitals to die because they don't have any money is just...staggering.

Tonight I was at a meeting and the woman leading it said that if she heard one more person tell her that they'd take to the streets "after Roe is overturned" she was going to choke them.

I can't believe anyone was actually saying that. Do people think that it won't be another twenty years before we get the right back? If no one fights for it now, what makes everyone think there will suddenly be an outpouring in the streets once it's overturned? Many people don't act unless they are personally threatened. Many women and men will not do anything until the day they are faced with an unwanted and/or accidental pregnancy.

Now I've gotten myself all depressed and riled up at the same time.

Well, we just have to keep it up. It's all we can do.

Love,
Sisk

# posted by Sisk : 7/07/2005 11:16 PM

If people were responsible about their sex lives, abortion would not be an issue. I have had and will have only one sex partner (my wife of 3 years). When it came time to have a baby, we stopped preventing. This is not complicated. Things get complicated when one wants to be forever young, free, and irresponsible. If I want to avoid a speeding ticket, I will either not drive or drive responsibly. I'm not sure why abstinence [sic?] is given such a bad rap. Well, never mind. Since I seem to be a conservative, I guess my opinion stifles the free speech of those who believe different than I.

# posted by Anonymous : 1/20/2006 1:14 AM