Limit Access, Stack the Court

The Right-Wing Map to Outlawing Abortion

 WASHINGTON, D.C.—For the first time since 1992, supporters of abortion rights are without a friend in the White House. Gone is the president who vetoed attempts to outlaw partial-birth abortion. In his place stands a commander in chief who, in one of his first official acts, moved to block U.S. funding of overseas family-planning agencies that dare to mention terminating unwanted pregnancies.

"When Congress sends me a bill against partial-birth abortion," Bush the candidate told the nation, "I will sign it into law."

Even before his inauguration, Bush tapped as attorney general John Ashcroft, a man who spent much of his public life opposing not only abortion but forms of birth control, like IUDs, that prevent a fetus from taking hold. During his confirmation, Ashcroft assured liberals Roe v. Wade is "settled law." Nobody on either side believes him.

Fetal Position: Trying to put abortion out of reach
photo: Michael Sofronski
Fetal Position: Trying to put abortion out of reach

Abortion foes have mapped a two-part strategy to chip away at reproductive rights, as a first step to doing away with them all. The plan begins with stacking the judiciary with antiabortion judges and ends with a string of state and federal legislation that puts services out of reach for many of the most vulnerable Americans. The government's message, says Cindy Pearson, director of the National Women's Health Network in Washington, is that "if you're not middle-class and a legal adult, we're going to make it harder and harder to get an abortion."

Fearing the worst, pro-choice groups are racing to mount a counterattack against what they anticipate to be a surge of Bush administration initiatives aimed at gutting Roe v. Wade. Already groups like the National Abortion Federation and theCenter for Reproductive Rights and Policy are dug in across Capitol Hill, where their lobbyists are visiting lawmakers and trying to beat back the right wing's antiabortion juggernaut.

Elsewhere, women are taking matters into their own hands, calling for a revival of the Jane Collective, a network of guerrilla activists who taught themselves and other laypeople to perform safe abortions. They rely on readily available equipment to conduct menstrual extraction, the method favored in developing countries.

To keep public attention focused on the threat to abortion, the National Organization for Womenlast week announced plans for a mass march in Washington on April 22.


The right to abortion depends on the Supreme Court, and so do hopes to squelch it. Archconservatives have their eyes on a pair of justices expected to retire soon, William Rehnquist and Sandra Day O'Connor. Bush has promised to name strict constructionist judges, who favor a renewed emphasis on states' rights. "States' rights" is neutral-sounding code for fulfilling conservative wet dreams of cutting federal government to the bone and sending such issues as abortion back to state governments, where they can quietly die.

Rebecca Chalker, co-author with Carol Downer of the self-help guide A Woman's Book of Choices says the current court has managed to curb abortion in various regions without raising a nationwide outcry. "I have the sense that the O'Connor faction chose the middle ground of restriction over outlawing, to prevent widespread civil disobedience by doctors, midwives, and activists," she says.

The result has been a raft of laws that create vastly unequal access across the states. Just last week, the Supreme Court refused to hear a case coming out of the conservative Fourth Circuit, in which three abortion providers from Greenville, South Carolina, argued their state's restrictions on abortion prevented them from doing their jobs. The rules in question attend to the most minute detail, from bookkeeping to the air flow in clinics. The doctors claimed that the burden of meeting these standards would drive up the cost of services.

Now attorneys for the Center for Reproductive Law and Policy are rushing to block similar restrictive laws in Texas, Arizona, and Michigan. Sixteen states and Puerto Rico have these Targeted Regulation of Abortion Providers laws, which attempt to scare off doctors and first-trimester patients. They include rules that allow state officials to copy and remove patient records. Some of the laws subject abortion clinic doctors and staff to criminal and civil penalties.

Center attorneys are also challenging a Michigan law on grounds it's a circuitous attack on RU-486, the recently approved abortion pill. The new legislation, which takes effect this month, states that women who want abortions must first read a description of the procedure prepared by the state. This sounds relatively innocuous, but there's a catch. The bill prohibits the state from publishing a description of a procedure "that has not been approved by the U.S. Food and Drug Administration for use in performing an abortion." To be effective, RU-486 must be combined with a second drug, misoprostol, which induces contractions. But misoprostol is approved by the FDA for the treatment of ulcers—not abortion. Moreover, a range of drugs used in surgical abortion might be barred because they are not specifically approved for this purpose.


Conservative lawmakers in Washington are ready to make hay under the new administration. Representatives have set their sights on RU-486, with Louisiana's David Vitter and Arkansas's Asa Hutchinson doing their best to impose weird and burdensome restrictions on doctors dispensing it. For starters, Vitter and Hutchinson would insist that a doctor who prescribes the drug have both the ability and equipment on hand to provide surgical backup. That's a little like asking a doctor who prescribes heart medicine to be able to do open-heart surgery, right there in the clinic.

Then there's the Child Custody Protection Act, introduced by Republican representative Ileana Ros-Lehtinen of Florida, which tries to trump state parental-notification laws by setting up a byzantine procedure under which a pregnant minor first has to get parental permission or approval by a judge in her own state. Getting a hearing can take weeks, and applicants risk having their cases heard by antiabortion judges or assigned to antiabortion guardians. Because of its obvious risks to young people, this bill is often called the Teen Endangerment Act by pro-choicers.

With his Unborn Victims of Violence Act, conservative poster boy Lindsey Graham would essentially establish two sets of constitutional rights, one for the woman and the other for the fetus. It's this legislation, which passed the House last session by 254 to 172, that has the pro-choice lobbyists most worried. Unborn Victims is on what looks to be a fast track, with hearings starting as soon as March 15.

Pro-choicers also expect the new White House Office of Faith-Based and Community Initiatives to jump into the fray, redirecting funds to religious agencies, hospitals, and crisis-pregnancy centers that not only oppose abortion but in some cases try to frighten women into carrying their embryos to term. Funding them will be a perfect example of how Bush intends to use churches as a political tool to change social behavior.

The right wing starts the fight with gaping holes in its attack. Two rabid antiabortion lawmakers—Charles Canaday of Florida and Tom Coburn of Oklahoma—are gone. Neither House nor Senate leaders will stick their necks out on the issue lest they risk alienating moderate Republicans like Maryland's Connie Morella or Connecticut's Nancy Johnson. The Senate has 47 solid anti-choicers, but the body has 18 swing votes as well. Two Republican senators—Olympia Snowe and Susan Collins, both of Maine—are strongly pro-choice, and sometimes, so are Louisiana's shrewd Mary Landrieu and West Virginia's cagey Robert Byrd.


Groups that help women terminate pregnancies themselves report a rising number of calls for information. They're quietly giving new life to Jane, which was formed in Chicago during the early 1970s as an ad hoc referral service for women seeking safe, but then illegal, abortions.

At one time, Jane included some 200 "friendship groups" trained in menstrual extraction and herbal techniques, says Rebecca Chalker. Though their services haven't yet been called for, she says, "there are a few thousand women across the country who have these skills and could reactivate them at any time."

But what worked back then might not work now. "If abortion is outlawed, I don't think a new Jane could exist," she says. "They were operating a barely underground service that took a good deal of official blindness to go on for as long as it did. Women will have to form small underground groups that would operate below the radar."


Additional reporting: Rouven Gueissaz and Adam Gray

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