“I had an illegal abortion when I was 15,” says Renee Chelian, executive director of Northland Family Planning Center, which runs three abortion clinics in Detroit. “Now I’m 53 years old, and I’ve been working for legal abortion my entire adult life. I would like to work on other issues, maybe help battered women and children, but I’m still fighting the same battle I was in 1974.”
Michigan is one of the many states where reproductive rights have been perpetually under siege since the landmark Supreme Court decision Roe vs. Wade legalized abortion in 1973. “The right-wing extremists have lost none of their momentum,” says Chelian, who has seen the ebb and flow of reproductive battles for 30 years. “In fact, it has picked up since George Bush has been in office.”
It is in these states where the battle is intensifying, not only to put limits such as parental consent on abortion, and to inhibit family planning — even preventing women from getting emergency contraception and the birth control pill — but ultimately to overturn Roe vs. Wade. Indeed, the April 25 march on Washington, supported by a range of reproductive-rights groups from across the country, is propelled by a new urgency: Conservative politicians in more than a dozen states have been pushing radical anti-abortion legislation that, if it were to pass, would almost certainly thrust the issue before the Supreme Court once again. With vacancy on the top bench imminent, and with George W. Bush potentially deciding who fills the seat (or seats) if he wins reelection, that’s a chilling prospect for advocates of reproductive rights.
Just last month, South Dakota came within one vote of enacting a sweeping anti-abortion law that would have outlawed the procedure entirely at any stage of pregnancy with the only exception being that of saving the woman’s life. Republican Gov. Mike Rounds and many South Dakota legislators boasted that the law could become the nation’s first direct challenge to Roe vs. Wade should George W. Bush get reelected and have the opportunity to appoint several anti-abortion justices to the Supreme Court. The apparent strategy is to enact an unconstitutional law in order to draw a court challenge that would make its way up to the Supreme Court — just as Bush’s appointees are joining other conservatives on the bench.
While the bill in South Dakota failed this time, it had passed both houses of the state Legislature. Despite supporting the bill, Gov. Rounds sent it back to the general assembly with a few technical changes. It came within a hairbreadth of passing a second time, even though it was such an extreme measure that the anti-abortion advocacy organization National Right to Life didn’t support it, stating that it was “the right bill at the wrong time.” Not only would it have banned the procedure, but it would have imposed a prison sentence of up to 15 years. Because the vote was so close, that probably won’t be the last time the South Dakota Legislature takes up the measure.
“We’ve been a testing ground for the most radical things they can dream up,” says Thelma Underberg, executive director of NARAL Pro-Choice South Dakota. “I checked the names of the people who testified [at the bill's hearing]. Very few people who testified were from South Dakota. It was well orchestrated by the Thomas More Law Center of Michigan, which was started by that fellow that owned Domino’s Pizza,” says Underberg, referring to Tom Monaghan, a conservative who has been a major funding source for anti-abortion and anti-gay activism. “They came in and got a legislator who was willing to carry the legislation.”
South Dakota isn’t the only state that has attempted to ban abortion outright. A bill in the Georgia Legislature would “provide that any person seeking to have an abortion … shall first file a petition in the Superior Court.” The bill also stipulates that the woman must have a jury trial, and that the court shall balance the rights of the fetus against the rights of the person seeking to have an abortion, and finally that “no abortion shall take place unless ordered by the court.”
In one of the more macabre state-level anti-abortion tactics, a bill was introduced to the Oklahoma Legislature that would require a woman considering an abortion to obtain a death warrant. “That bill would prohibit a physician from performing an ‘execution’ without obtaining a death warrant,” says Anita Fream of Planned Parenthood of Oklahoma. “It’s anybody’s guess what that referred to. But we see between 15 and 20 anti-choice bills of various kinds every year, so you can’t stay on top of them all. For example, we’ve had a bill proposed that would allow any minor who got an abortion without parental consent to sue the physician for malpractice without any statute of limitations, even though minors aren’t required to get parental consent in Oklahoma.”
Iowa is another state that is considering a bill that would require a woman to obtain permission from a judge before getting an abortion. Under this measure, the judge would appoint a guardian for the embryo or fetus and then conduct a mini-trial to determine if she should be forced to go forward with the pregnancy. There is no exception in this legislation for the health or even life of the woman. “That bill was so extreme, even the leadership [of the state legislature], which is anti-choice, didn’t let the bill go forward,” says Brenda Kole of NARAL Pro-Choice Iowa.
According to Planned Parenthood, 14 states have introduced 29 bills banning abortion outright.
“There has been a long-term strategy to make abortion illegal at the state level,” says Nancy Northup, an attorney and the president of the Center for Reproductive Rights in New York City. “What people don’t understand is that states want to have these laws on the books and ready to go when Roe is challenged again in the Supreme Court. Two states, Alabama and Delaware, have pre-Roe anti-abortion laws still on the books. And two more states, Louisiana and Utah, have passed laws to make abortion illegal since Roe. Those state laws, and any others that are passed in the meantime, will immediately go into effect should Roe be overturned.”
Not all attempts to severely restrict abortion are quite so blatant. Back in Michigan, two court cases have already been fought over so-called partial-birth abortion laws, where the legislation was struck down both times on the grounds that the wording was so vague that abortions as early as 10 weeks could be restricted.
“If they would pass a narrowly tailored bill to ban a specific procedure,” says Chelian, referring to intact dilation and extraction, “we probably wouldn’t even challenge it. But they keep coming back with this vague language, so we go to court, and every time we win the case, we also get to collect attorney’s fees from the state. It’s the state that has to pay for the court challenge, not the anti-choice groups who push it through. It’s such a waste of the taxpayers’ money.”
Most recently, the Michigan Legislature passed the Legal Birth Definition Act that — in addition to including the vague partial-birth language yet again — defines fetal viability so vaguely as to allow restrictions on abortion in the first trimester. Gov. Jennifer Granholm vetoed the bill, but a rarely used citizen’s initiative will likely succeed in getting it enacted anyway. In Michigan, if enough signatures are collected in support of a bill, it must be taken up by the Legislature, and if it passes with a simple majority, it automatically becomes law. The governor cannot veto it. More than enough signatures have been gathered and submitted to the secretary of state for verification, which will be certified sometime this month. Since the legislation already passed the Michigan Legislature once, it is all but guaranteed to succeed again, only this time the governor will have nothing to say about it. Once again, the courts will have to be the backstop.
“The [proponents of the citizen's initiative] are following an avenue that is allowed to them under the law,” says Liz Boyd, a spokeswoman for Gov. Granholm. “But any new law that is identical to the bill that the governor vetoed, which she did because it didn’t have an exception for the health of the woman, will be struck down by the courts.” The Michigan ACLU has already indicated it will bring a court challenge if the bill becomes law.
Not all attacks on a woman’s right to reproductive freedom are coming in the form of state legislation. Last fall a concrete supplier launched a boycott of a new clinic being built by Planned Parenthood in Austin, Texas. The boycott spread to every contractor in a 60-mile radius. After the initial setback, Planned Parenthood was besieged with calls from people willing to help. Planned Parenthood became its own contractor and has had to protect its subcontractors from harassment by refusing to release the companies’ names. Still, protesters show up at the construction site with zoom lenses and threaten to post photographs of workers on the Web. Despite the ongoing harassment, the clinic’s construction schedule is back on track and is set to open in the fall of 2004.
Of course, the anti-abortion movement hasn’t limited itself to stopping abortion.
Women’s right to reproductive freedom has come under such severe attack that access to emergency contraception and even the pill are increasingly threatened. Just last month, two cases arose in Texas that seem to be isolated incidents but are in fact part of a larger trend. In one case a pharmacist in Denton, Texas, refused to fill a woman’s emergency contraception prescription — even though she had just been raped. The drug store chain, Eckerd, immediately fired the pharmacist.
Another pharmacist in north Texas refused to fill a 32-year-old woman’s prescription for the pill. Julee Lacey, a wife, mother and first-grade teacher, was incensed and took her story to the media. In this case, the pharmacy was CVS. “Our constituents who are outraged about this want to support pharmacies that react quickly and do the right thing, as Eckerd did,” says Emily Snooks, executive director of Planned Parenthood of North Texas. “Well, now we come to find out that CVS is buying Eckerd. We can’t get an answer out of CVS about what they’re going to do to prevent this from happening again and whether or not that pharmacist will be terminated.”
CVS has said that if a pharmacist objects to filling a prescription, he or she should refer the customer to a pharmacist who can be of assistance. Beyond that, the company hasn’t elaborated on its policy or said if any disciplinary action was taken against the pharmacist who refused to dispense the pill. As it stands, Texas law does not protect pharmacists who object to filling certain prescriptions, but that may change. So-called conscious-clause legislation, which seeks to protect pharmacists from having to fill prescriptions that they morally object to, is yet another trend sweeping state legislatures.
While most of the proposed conscious-clause bills started out by protecting pharmacists who don’t want to dispense RU-486, also known as an abortifacient, Virginia has gone so far as to consider a bill that would declare fertilization as the beginning of life. This would classify emergency contraception, the pill, the IUD and other methods of contraception that prevent a fertilized egg from implanting in the uterus as abortifacients. Pharmacists who are already exempt from having to dispense RU-486 could not be fired by the company for refusing to dispense birth control and emergency contraception under this definition.
After a pharmacist in Cincinnati was terminated for refusing to dispense the pill and emergency contraception at least 10 times during her seven years of employment at K-Mart, a conscious-clause bill was introduced in the Ohio Legislature to protect pharmacists from being disciplined. “Wider access to emergency contraception is the single most promising avenue for reducing this country’s rate of unintended pregnancy,” says Chrisse France, the executive director of Preterm, a nonprofit abortion clinic in Cleveland.
While pro-choice organizations and civil rights groups battle to keep contraception available, anti-abortion groups have opened another front: going after family planning funding. According to the Planned Parenthood Federation of America, just this year 12 states have introduced bills that would eliminate all family planning funding to organizations that even discuss the option of abortion or refer women to clinics that perform abortions. Last year, six states succeeded in defunding family planning: Colorado, Michigan, Nebraska, Ohio, Pennsylvania and Texas.
“The [Texas] Legislature passed a bill that attempts to take away federal funding for family planning and require any family planning clinic to suspend any abortion services,” says Snooks, executive director of Planned Parenthood of North Texas. “All the Planned Parenthood affiliates in Texas had to file a lawsuit against the state and get an injunction. The court will hear testimony regarding this issue on May 3. If we lose, that would be a loss of $13 million to clinics across Texas.
“If people knew that contraception is now being threatened, they would be outraged,” continues Snooks, who believes that people are starting to wake up to what’s happening at the state level. “We have a whole contingent of people going to Washington, D.C., for the march,” says Snooks. “Most people don’t think of North Texas as a hotbed of activism, but people are getting upset.”