There's more at stake than Roe vs. Wade

From clinic access to anti-abortion terrorism, the next president -- whoever he is -- will have a profound effect on a woman's right to choose.

By Carole Joffe
October 31, 2000 11:30PM (UTC)
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You've heard it over and over these past few months. Ralph Nader supporters say there's no difference between the other two guys. Some disaffected Democrats agree. And they add that the likelihood of George W. Bush's Supreme Court appointees voting to overturn Roe vs. Wade is the only reason to vote for Vice President Al Gore. Moderate Republican and independent women desperately want to believe that Bush's successful efforts to defuse the abortion issue mean that he'll soft-pedal his opposition if he takes office.

They're all wrong.


Consider this: On a Friday night two years ago, an anti-abortion terrorist murdered Barnett Slepian, a Buffalo, N.Y., obstetrician and gynecologist, in his own home. The following Tuesday, Attorney General Janet Reno convened a meeting in her Washington office with leaders of the pro-choice movement, including Marilyn Buckham, the director of the clinic where Slepian had worked.

Buckham brought Reno a personal message from the slain doctor's widow: "This clinic must remain open," said the note. "Bart would have it no other way." After offering condolences to Slepian's colleagues and friends, Reno declared that her first priority was to ensure that the clinic continue to operate. "The buck stops here," she told the group. "Tell me what you need."

The Buffalo clinic requested two things: a strong and visible security presence at the facility itself and protection for physicians who agreed to cover for Slepian and other clinic staff deemed at risk. Reno complied immediately, dispatching federal marshals to Buffalo to guard the clinic and offer round-the-clock protection of designated individuals, including Buckham herself.


Reno took additional steps. She ordered agents and dogs from the Bureau of Alcohol, Tobacco and Firearms to protect providers and advocates attending several abortion-rights conferences that took place right after the shooting. Within 10 days of the Washington meeting, she created the National Task Force on Violence Against Health Care Providers, a commission to assist local and regional law enforcement agencies investigate and prosecute attacks on clinics and people offering abortion services. And the following year the proposed White House budget included $4.5 million for physical security enhancements for abortion clinics.

Both the pro-choice and anti-abortion movements have been focused mainly on the fragility of the high court's 5-to-4 pro-Roe majority and the president's authority to name new justices. That's clearly a key issue, even though Nader casually dismissed its importance on Sunday when he told Sam Donaldson of ABC News that "even if Roe vs. Wade is reversed, that doesn't end it ... It just reverts back to the states."

But the power of the presidency over abortion is far broader. Even if Roe vs. Wade were to remain intact under a Bush administration -- and lots of people have convinced themselves that it would -- an anti-abortion president can take myriad steps to ensure that abortion will be virtually inaccessible to many American women, even if the procedure remains technically legal. It is delusional for any abortion-rights supporter to think otherwise -- or to downplay any differences between how a Bush or Gore administration might handle the issue beyond Supreme Court choices.


No president, however willing to defend abortion rights, can himself (and hopefully, one day, herself) effectively fend off every legal, medical and cultural assault of the anti-abortion movement. Only Congress, for example, can remove the ban on federal funding of abortion for poor women. But a president can do a great deal both concretely and symbolically to support the pro-choice movement through executive orders, appointments to various agencies as well as lower federal courts, legislative priorities and use of the position as a bully pulpit. Likewise, an anti-abortion president can severely undermine abortion rights and limit availability -- and could even do much to derail broad access to RU-486 despite the drug's recent and long-awaited approval by the Food and Drug Administration.

Clinton and Gore have both spoken out forcefully and consistently against anti-abortion violence. The administration has tried to blunt the excesses of anti-abortion legislation, as when the president vetoed bills barring so-called "partial-birth abortion" -- legislation that Bush has indicated he would sign eagerly. Clinton has issued executive orders granting providers far greater freedom to offer abortion services and counseling. And just last week he forced congressional Republicans to remove restrictions on whether private family-planning groups that receive federal funds can use their own money for abortion-related activities in other countries. The restrictions, however, will remain in place until Feb. 15 -- offering the next president great leeway in determining how to proceed.


A President Gore would likely continue and even expand upon those policies. A President Bush would not.

Although the Republican platform calls for a constitutional amendment to ban abortion in all but the most extreme circumstances, Bush has sought to downplay his anti-abortion rhetoric during the general election campaign. But judging from how previous Republican administrations have sought to restrict access even under the umbrella of Roe, there is little reason to think Bush would do otherwise.

Take the issue of violence against providers. Though Roe vs. Wade occurred in 1973, anti-abortion harassment and violence did not become a serious issue until the mid-1980s, when incidents of firebombings, threats, blockades and the stalking of providers escalated dramatically.


Operation Rescue, the group that brought thousands of protesters to clinics across the country, debuted in 1987. By the following year, 85 percent of the freestanding clinics in the U.S. had reported some form of harassment, and by 1992, the last year of Bush's presidency, there were nearly 200 recorded "violent" incidents at clinics and nearly 3,000 incidents of "disruption."

The response of Reagan and Bush to the situation was a thunderous silence. Neither decried events which, had they occurred in any other field of healthcare, would have provoked an immediate presidential condemnation. Providers, their lawyers and abortion-rights activists vainly sought to convince local and federal officials to take these emerging patterns of anti-abortion activity seriously. But judges routinely praised protesters blocking clinics and let them off with minimal or no punishment -- if prosecutors charged them at all.

But when Clinton took office, the climate of official responsiveness to providers' concerns changed. As soon as it passed Congress, Clinton signed the Freedom of Access to Clinic Entrances Act, which makes it a federal offense to impede access to abortion clinics. The murder of Slepian and others in the abortion-providing community shows that not all violence against providers, especially extreme acts by lone individuals, can be prevented. But the total number of disruptive events at clinics -- blockades, sieges and so on -- has dropped significantly since Clinton's talk and action replaced the official attitude of benign neglect.


The differences between the Clinton-Gore administration and the ones preceding it are not lost on the pro-choice community. The administration, says Vicki Saporta, executive director of the National Abortion Federation, the major professional association of abortion providers in North America, "has played an important role in protecting abortion providers from acts of violence and terrorism ... [The administration's approach] has saved lives and made a real difference for the healthcare professionals who provide safe abortion services to women."

Life under a President Bush would be a different story. A conservative attorney general appointed by Bush need not loudly or aggressively proclaim support for anti-clinic violence to spread cheer among the party's anti-abortion base. Without the personal fervor that Reno -- with the full backing of Clinton and Gore -- brought to the issue, without that visible commitment and a clear message to law enforcement agencies that protecting abortion providers is a top priority, the damage -- in terms of the messages that providers get -- will be done.

Nor is the story over with respect to RU-486. In the first presidential debate, Bush responded evasively to a question about the drug by saying that the approval was essentially a done deal and thus there was no further role for the president. But he undoubtedly knows well that a president can do plenty to effectively nullify the FDA's September action. In more partisan settings since that first debate, Bush has told cheering crowds that he would call for a review of the approval itself.

He has also declared his support for the Coburn-Hutchinson bill sponsored by two anti-abortion stalwarts in the House. It would impose significant restrictions on the use of this drug, its main goal being to allow only physicians who perform surgical abortions to prescribe RU-486. In contrast, the recent FDA approval stipulated that any doctor could administer this drug as long as the physician had arranged for backup services, should they prove necessary, from a colleague who performs surgical abortions.


Should this anti-abortion initiative become law, it would ensure that approval of the drug would not increase the total number of providers and hence overall abortion access -- precisely the reason the pro-choice movement worked for 12 years to bring RU-486 to the United States in the first place. And a new head of the FDA could find many other legal ways to limit its availability and use.

So could anti-abortion judges appointed by a President Bush, since the courts will eventually rule on the various regulations states impose on how RU-486 can be obtained and administered. Will midlevel clinicians, such as physician assistants and nurse-midwives who already perform abortions in the handful of states that currently permit them, be allowed to offer women the drug? Will the rigorous protocol requiring women taking the drug to make three separate office visits be modified as new data becomes available? Will all state laws applying to surgical abortion be extended to this very different procedure?

In some states, for example, surgical abortion providers are required to personally inspect what are called the "fetal remains" after an abortion. This is obviously an inappropriate regulation for a RU-486 abortion, which essentially induces a miscarriage and is most likely to cause the woman to expel the products of conception in her own home.

Numerous other presidential appointments will also affect abortion in the United States. The secretary of Health and Human Services, the surgeon general, the head of the Centers for Disease Control, the head of the National Institutes of Health and the deputy assistant secretary for population affairs are all key governmental posts with respect to abortion.


Because those holding such positions influence key abortion-related issues -- such as fetal tissue research, collection of reliable data on the numbers of abortions performed in the U.S., shaping of the public discourse surrounding controversial abortion procedures such as the so-called "partial birth abortion," and so on -- the appointments are scrutinized by both pro-choice and anti-abortion activists.

Who might Bush pick for such key positions? His record as Texas governor is not only revealing but is a clear example of how his presidency could resemble his father's. Bush Jr.'s commissioner of health services in Texas -- until he resigned last week in disgrace -- was William "Reyn" Archer, son of a legendary right-wing Texas congressman and, in the early 1990s, deputy assistant secretary for population affairs under President Bush. Reyn Archer distinguished himself in the latter post by repeatedly declaring his opposition to premarital sex and most forms of birth control and, of course, by his fanatic opposition to abortion.

He was particularly known as the point person for Bush on the infamous "gag rule" -- the regulation that prevented staff at federally funded family planning clinics from even discussing the option of abortion with patients. When asked by a congressman at a hearing whether he would sanction a referral to an abortion service if a woman's life were at stake, he replied no.

On another occasion, he was quoted by the New York Times as having said that "when it became possible for women to buy contraceptives on their own, men lost their manhood." He finally left his Texas post after a series of pubic-relations disasters in which he insulted African-Americans, Hispanics, women and poor people.


In contrast to Archer, the deputy assistant secretary of population affairs under Clinton was Felicia Stewart, a respected figure in reproductive-health circles and a longtime supporter of abortion rights. Stewart led a tireless and ultimately successful campaign to boost the availability and visibility of the "morning-after pill" -- now known as "emergency contraception."

This was long overdue. Emergency contraception -- an ingestion of a high dose of oral medication after unprotected intercourse -- had for years been used in some college health services and for rape victims in hospitals. But the packaging and marketing of products labeled specifically for this purpose had been opposed by anti-abortion forces, who viewed it as an "abortifacient" -- an inducer of abortion.

There are many more ways that a president's views on abortion can affect public policy. Take the issue of executive orders. In Clinton's first week in office, he issued an executive order lifting the ban supported by Reagan and Bush on importing RU-486 into this country for personal use -- a crucial first step in the long road to approval of the drug in this country -- and another nullifying the gag rule in U.S. family planning clinics. As president, Bush could immediately reinstate the gag rule through the same mechanism.

Finally, the Supreme Court remains a vital issue. No one can predict with 100 percent accuracy how a newly appointed justice will vote on particular issues, even abortion. Witness, for example, the surprising alliance that David Souter, a Bush appointee, has struck with the court's liberal wing. But it is hard to take seriously Bush's claim that he will impose no abortion litmus tests for Supreme Court nominees, given that he is on record as declaring that Antonin Scalia and Clarence Thomas -- the two most hard-line abortion opponents on the court -- are his "favorite" justices. And the next president, of course, will name numerous lower court judges who will play a crucial role in determining the course of abortion provision in the foreseeable future.

Ever since Roe vs. Wade legalized abortion in 1973, opponents have waged a war to overturn it. Seven members of the abortion-providing community have been murdered and thousands more have been shot, stalked and otherwise terrorized. Even with the improvements of the last eight years, abortion providers still drive to and from their offices in bulletproof vests and work in clinics that often resemble armed fortresses. Given these conditions, it makes more sense to wonder that in 14 percent of U.S. counties there are facilities known to provide abortions rather than to profess surprise that in 86 percent of counties there are not.

The steps taken by Clinton and Gore since 1992 have bolstered the morale of the beleaguered community of abortion providers -- without whose perseverance and courage there would be no safe and legal abortions no matter what the status of Roe vs. Wade. Neither Bush's evasive chirping about how good people can disagree when he is asked about abortion at a national forum nor Nader's impatient dismissal of the differences between Bush and Gore should blind supporters of reproductive freedom to the stakes in this election.

They are monumental.

Carole Joffe

Carole Joffe is a visiting professor of sociology at Bryn Mawr College and the author of Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade.

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