Roe v. No

The fight over Alito misses the daily defeat of legal abortion

Once more into the breach go America's abortion partisans, this time over Judge Samuel Alito's nomination to the Supreme Court. The issue, pro-choice people say, is nothing less than defending Roe v. Wade. But the fact is that something far less than the rights protected by Roe is what most American women have faced for a long time.

From about 1991 on, the number and rate of abortions in the United States have decreased. Many factors could account for that, but pro-life groups insist—and some pro-choice activists agree—that legal restrictions and other abortion barriers are having some effect. Here are some of the thousand cuts from which Roe is dying even before the reconstituted Supreme Court starts its next term:

'Casey': Planned Parenthood of Southeastern Pennsylvania v. Casey is the case where, at the appeals court level, Alito famously dissented in support of a measure requiring women seeking abortions to tell their husbands. The case ended up at the Supreme Court, which "upheld" Roebut OK'd measures like waiting periods, informed-consent laws, and parental- notification requirements. All three rules sound very reasonable; that's their genius—and the problem—say pro-choice groups.

Take parental-notification laws, which are on the books in 44 states—among the nearly 500 abortion restrictions the states have passed since Casey. "They're extraordinarily burdensome," says Lynn Paltrow, founder of the National Advocates for Pregnant Women, for "women whose relationship with their parents is not safe or healthy." Women who don't want to tell Mom or Dad can go before a judge, but that could mean a long and expensive trip to court. The Supreme Court is set to review a New Hampshire law that requires teens to give their parents 48 hours' notice with no exception for cases where a woman's health is at risk.

The informed-consent material that doctors must show to women differs from state to state, but many of them detail the health risks of getting abortions. While it's always good to know the risks of medical procedures, pro-choice activists wonder why abortion is singled out. After all, more women died from complications during pregnancy just in 2003 (the latest year for which data are available) than during legal abortions from 1972–2000, according to the Centers for Disease Control. And sometimes the scripts depart from scientific consensus. The South Dakota legislature recently passed a bill requiring doctors to tell abortion patients that "the abortion will terminate the life of a whole, separate, unique, living human being."

And while waiting periods sound benign, "that means two days off work, maybe staying overnight, two days of child care, which make it more difficult for women to obtain the care that they need," says Vicki Saporta of the National Abortion Foundation. California voters will soon decide whether to enact a 48-hour waiting period and parental-notification law, called Proposition 73.

Funding:Roe was less than four years old when the Hyde Amendment blocked the use of federal Medicaid funds on abortions except in circumstances like rape, incest, or life endangerment. States share Medicaid costs with the feds and can use their own money for abortions, but only 17 do.

Insurance: Four states block private insurers from covering most abortions (Idaho, Kentucky, Missouri, North Dakota), and several others refuse to cover abortions for public employees—in a few cases, even when the woman's life is in danger. A 2001 study of private insurance plans in Washington State found that 53 percent of women enrolled in the top plans did not have coverage for "pregnancy termination." Nationwide, the vast majority of private plans cover abortion, but most women do not seek reimbursement from their carriers.

Providers:According to the Alan Guttmacher Institute, which studies reproductive health care, there are no abortion services in 87 percent of U.S. counties, encompassing about 34 percent of American women of childbearing age.

Meanwhile, many medical schools aren't really teaching abortion. Early results from an unpublished 2003 Medical Students for Choice study found that while abortion was discussed at 65 percent of med schools, actual clinical methods were taught at fewer than one in five.

Military bases: In 1988 abortions were banned on military bases, and although President Clinton lifted the ban in 1993, Congress reinstated it three years later. In 2002 lawmakers narrowly defeated an effort to lift it again.

'Partial birth' abortion:No "partial birth" abortion ban has stood up to court challenges yet. Nebraska's was voided by the Supreme Court in 2000, and three district courts have declared the 2003 federal ban unconstitutional (those cases are likely to reach the high court soon). But even though pro-choice groups have won the legal battles so far, the bans have put them in the position of defending a rarely used medical procedure that the pro-life side has been able to characterize in emotional terms.

The fetal rights movement:"What's at stake," Paltrow says of the Alito nomination, "is so much bigger and more profound than just the possibility for losing Roe. There are people in jail for murder because they had a stillbirth." One of them is Regina McKnight, convicted in South Carolina in 2001 of murder for using cocaine during a pregnancy that ended in stillbirth; she's serving 12 to 20 years. The Supreme Court refused to hear her appeal. Other states have charged women with similar crimes. Roe provides legal tools for challenging these laws when they impinge on abortion rights, but losing Roe could affect more than just abortion. Paltrow fears that more women would face forced C-sections and other involuntary medical procedures if fetuses were allowed to have rights equal to their mothers'.

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