Nation Topics - Reproductive Rights
News and Features
It took twelve years for the FDA to approve mifepristone--also known as
RU-486--and most of that time had less to do with medicine than with the
politics of abortion. Still, the late-September decision was a
tremendous victory for American women. In approving RU-486, the FDA
showed that science and good sense can still carry the day, even in an
The long delay may even backfire against the drug's opponents. In 1988,
when mifepristone was legalized in France, it was a medical novelty as
well as a political flashpoint. Today, it's been accepted in thirteen
countries, including most of Western Europe; it's been taken by more
than a half-million women and studied, it sometimes seems, by almost as
many researchers. By the end of the approval process, the important
medical professional organizations--the AMA, the American Medical
Women's Association, the American College of Obstetricians and
Gynecologists--had given mifepristone their blessing; impressive
percentages of Ob-Gyns and family practitioners said they would consider
prescribing it; thousands of US women had taken it in clinical trials
and given it high marks, with 97 percent in one study saying they would
recommend it to a friend. Against this background of information and
experience, the antichoicers' attempt to raise fears about the drug's
safety sounds desperate and insincere.
In a normal country, RU-486 would simply be another abortion method, its
use a matter of personal preference (in France it's the choice of 20
percent of women who have abortions, while in Britain only 6 percent opt
for it). But in the United States, where abortion clinics are besieged
by fanatics and providers wear bulletproof vests, mifepristone's main
significance lies in its potential to widen access to abortion,
especially in those 86 percent of US counties that possess no abortion
clinic, by making it private--doctors unable or unwilling to perform
surgical abortions could prescribe it, and women could take it at home.
It is unlikely, however, that Mifeprex, as the drug will be known when
it comes on the market, will prove to be the magic bullet that ends the
war on abortion by depriving antichoice activists of identifiable
targets. The nation has been retreating from Roe v. Wade for a
quarter-century, and a good portion of the patchwork of state and local
regulations intended to discourage surgical abortion will apply to
Mifeprex as well: parental notification and consent laws (thirty-two
states), waiting periods (nineteen states), biased counseling and
cumbersome reporting and zoning requirements. States in which
antichoicers control the legislatures will surely rush to encumber
Mifeprex with hassles, and small-town and rural physicians in particular
may find it hard to prescribe Mifeprex without alerting antichoice
activists. Doctors are a cautious bunch, and the anticipated flood of
new providers may turn out to be a trickle, at least at first. Abortion
rights activists should also brace themselves for a backlash from their
hard-core foes: Just after the FDA's decision was announced, a Catholic
priest crashed his car into an Illinois abortion clinic and hacked at
the building with an ax.
But in the long run, Mifeprex will make abortion more acceptable. In
poll after poll Americans have said that when it comes to terminating a
pregnancy, the earlier the better. Mifeprex, which has been approved for
the first forty-nine days after a woman's last menstrual period--when
the embryo's size varies from a pencil point to a grain of rice--may
well prove not to arouse the same kinds of anxieties and moral qualms as
surgical abortion. Then, too, Americans are used to taking pills. That,
of course, is what the antichoicers are afraid of.
The Supreme Court opens its new term with a case that raises the stakes dramatically in the politics of fetal rights. At issue in Ferguson v. City of Charleston is whether a public hospital violates the Constitution when it tests pregnant women for drug use and turns over positive results to the police without so much as obtaining a search warrant.
Medical professionals and the general public agree that it is not desirable for pregnant women to use drugs. But this case raises a different question: Do women forfeit basic constitutional rights to equal treatment, due process and protection against unreasonable searches and seizures when they become pregnant?
South Carolina has been a leader in the movement, building ever since Roe v. Wade legalized abortion, to establish rights for fetuses. No state has done more to target pregnant women who use drugs. Starting in 1989, the Medical University of South Carolina (MUSC) invited the police and local prosecutor to help implement a policy directed at prenatal-care patients. Women who came to MUSC, the only facility for indigent patients in Charleston, were threatened with arrest if they tested positive for drugs. Some were jailed for the duration of their pregnancies (surely not an optimal environment for pregnant women's health), and others were jailed after giving birth, still in their hospital gowns. All but one were black. The crimes they were charged with--drug possession, child neglect and distributing drugs to a minor--carried penalties of two to twenty years.
South Carolina Attorney General Charles Condon has said, "There is no constitutional right for a pregnant mother to use drugs." True enough. But the Constitution does guarantee rights of personal liberty and due process, which in turn require that all people, regardless of race or gender, be treated fairly and equally under the law. And the Charleston police department has never arrested a male hospital patient and charged him with possessing drugs on the basis of a positive urine test.
The real issue is how to respect pregnant women's constitutional rights while improving their (and their future children's) chances of a good outcome. The state maintains that the "stick" of criminal intervention is necessary to make its policy of "encouraging" pregnant women to get treatment effective. But at the time the policy took effect, there was not a single residential drug-abuse-treatment program for women in the entire state. MUSC itself would not admit pregnant women to its treatment center. And no outpatient program in Charleston provided childcare so that pregnant women with young children could keep their counseling appointments.
Finally, arresting women after they give birth does nothing to promote a healthy pregnancy or newborn. This practice also hinders the basic goals of keeping families together and promoting family stability through the provision of rehabilitative services instead of punishment.
Condon has made plain his desire to challenge the premise underlying abortion law: that a fetus is not a person in the constitutional sense and has no rights of its own. In 1998 he told the Washington Times that he would be "proud" and "very pleased" to defend his policies, "even in terms of reversing Roe v. Wade."
Faced with sanctions and the loss of federal dollars when the federal government investigated MUSC for ethics violations and discrimination against African-American women, the hospital suspended its policy in late 1994. But the program's architects got a boost when the State Supreme Court ruled in 1996 that a viable fetus is a person under the children's code, a ruling that the US Supreme Court allowed to stand. Condon then instructed district attorneys around the state to prosecute for "child abuse" women who take drugs during pregnancy.
Because most women in the United States get pregnant at least once in their lives, the practical and political implications of the Supreme Court's decision in Ferguson v. City of Charleston will be enormous. Fetal rights advocates recently scored a victory in Massachusetts when a judge entered an order of protection on behalf of a fetus and took a pregnant woman into state custody. The state alleges that the woman let her last baby die shortly after birth but has not charged her with any crime. If the Court upholds South Carolina's policy, it will encourage similar actions, effectively putting American women on notice that if they become pregnant, their lives are no longer their own.
Justice John Paul Stevens looked great the last time I saw him, celebrating his eightieth birthday, playing the back nine of his life, where the important games are won. He is the Court's leading liberal and its oldest member; he was considered a moderate when I worked for him twenty-two years ago, which is more a measure of how far the Court has moved than how far he has. His tennis game is still sharp, for which I am grateful, since his good health may be what stands between American women and a major setback for reproductive freedom.
For years, feminists have sought to draw a link between the presidential election, the Supreme Court and reproductive freedom. You vote for the Court when you vote for President. You're voting on Roe v. Wade. That's what we say. And it never works. When you hear candidates giving speeches about the Supreme Court, it better be Law Day, or it means they're in trouble.
So here we go again. What will happen if George W. Bush is elected and another Justice or two retire? Will middle-class women lose the right to take a pill or undergo a procedure in doctor's offices that will terminate unwanted early-stage pregnancies?
Will abortion again be illegal in America?
Will doctors across America be locked up for what are now routine procedures?
At the same time, we can expect even more severe restrictions on a woman's right to choose. Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor. The trimester approach of Roe, which recognized the mother's health as the only legitimate basis for government regulation prior to viability, has given way to an "undue burden" test, applicable to all regulations. Government is no longer required to be neutral with respect to how a woman exercises her right to privacy.
In states where legislatures are antichoice, abortion statutes get loaded up regularly with all kinds of time, place and manner restrictions, consent forms and waiting periods, and even bans on procedures, like the legal creation of a "partial-birth abortion." Then the Supreme Court sorts it out. What is more striking than the creativity of the various approaches is how easy it would be for them to win even more than they do if they just added a few "life or health of the mother" clauses here and there. They know that, too.
"Life's not fair," Jimmy Carter declared, when the Supreme Court upheld the right of state and local governments to deny public funding to poor women seeking abortions. In the years since, it's gotten more unfair. In the future, if George W. Bush wins, it will get even more unfair.
What Roe v. Wade now means is that if you're lucky enough to live in a place where doctors aren't afraid to do abortions and you have the money to pay for one, you don't have to bring cash in a plain envelope. It's safe and legal, until viability. In Los Angeles, you can open the phone book.
So, a bunch of really old guys were sitting around the Senate cloakroom shooting the breeze when one of them brought up the latest fountain-of-youth gimmick.
Which current candidate for President reversed the abortion stand he
espoused as a Congressional candidate in the seventies and adopted a
position more acceptable to the mainstream of his party
Thirty years ago in early April, three years before Roe v.
George W. Bush has a sweet appealing face until he reveals his dark
side, as when he, in one of his first official acts, cut off funds to
international population control groups.
The pundits said he was merely getting even with organizations like
Planned Parenthood, which have opposed John Ashcroft's nomination as
attorney general. But the stark consequences of that political vendetta
will be tens of thousands of women around the world who will not have
access to safe birth control and who will die in self-mutilating attempts
at abortion. These women find themselves in such dire straits because
they are, in many cases, the victims of forced sex, whether by husbands
or strangers, who have total power over them.
In his message to the throngs bused into the nation's capital last
week protesting on the 28th anniversary of the Supreme Court's ruling
that abortion is legal, Bush said, "We share a great goal--to work toward
a day when every child is welcomed in life and protected by law."
That sounds noble, but it begs the question: For how long is that
child welcome--an hour or a lifetime?
What if that child is an 8-year-old street beggar in Rio de Janeiro or
Bangkok? Will he still be welcome, and under what law will he be
protected from pimps, perverted tourists and local merchants who hire
gunmen to blow street urchins away? And what about the mothers of those
children? Will they, and their families, sink deeper into poverty because
of a birthing decision over which they had little or no control?
Assuredly, they and their progeny will not be welcome to immigrate to the
US to escape the economic collapse of their own part of the world. Nor
has Bush even suggested an increase in the pathetic $2 annually per
American allocated to foreign aid for the world's poor. Instead, he
proposes a $236 billion tax cut over the next decade for the wealthiest
2 percent of Americans, money that if spent on the world's poor would represent
a strong pro-life statement. In effect, he's cynically cheering on
spiraling and unsustainable populations abroad.
That's the reality faced daily by the folks at Planned Parenthood and
those other international population-control organizations that Bush--in
a sop to the right wing of his party--decided to cut off from US
funding last week. There isn't a reputable social service organization
that doesn't prefer contraception to abortion. Denying these groups
funding undermines their effort to educate about birth control, which
would help head off abortions and also curb population growth. Fully
one-third of the world's work force is effectively unemployed, and the
United Nations estimates that 500 million new jobs must be created just
to accommodate new arrivals in the job market over the next decade.
Developing economies do not stand a chance of meeting that demand without
aggressive population control.
Yet Bush has chosen to cut funding for the very organizations, most
notably Planned Parenthood, that work hardest to make birth control
information available throughout the world. These groups do not use a
penny of government money when they counsel women for whom birth control
has failed that abortion is an option. But Bush would deny funds to any
organization that offers abortion information in any of its privately
For all his praise of private charities, Bush does not trust one of
the nation's most venerable social service organizations to organize its
work so as to not compromise the law. This is an organization actively
supported by his grandfather, Prescott Bush, who lost his first campaign
for the US Senate because Democrats confused Catholic voters with
charges that Bush had contributed money to Planned Parenthood. When he
finally won the seat, Prescott Bush was a strong advocate for the
His son, George Herbert Walker Bush, as a young congressman was the
author of the Family Planning Act of 1970, which George W. is now
attempting to reverse. He should heed the words of his father back in
1973: "Success in the population field, under United Nations leadership,
may, in turn, determine whether we resolve successfully the other great
questions of peace, prosperity and individual rights that face the
Bush Sr. abandoned that sensible position to obtain the vice
presidential slot on Ronald Reagan's ticket. The Reagan Administration
first imposed the "gag" rule on family planning organizations, denying
them funds if they even mentioned abortion as a choice in their
educational work. That is the ban that Bill Clinton reversed and which
George W. has re-established.
Bush's purpose seems to be that of placating the far right while
punishing Planned Parenthood for having dared to suggest that John
Ashcroft, who equates abortion to murder, cannot be trusted to enforce
the law protecting a women's legal right to choose that medical
One suspects that if Prescott Bush had been given the choice of
trusting Planned Parenthood over Ashcroft to obey the law, his answer
would have been obvious.
One of the favorite tactics of pro-lifers--especially ones who are self-described "progressives"--is to accuse abortion rights supporters of being anti-child, hyperindividualistic, unwilling to p
Emergency contraception has the potential to revolutionize women's relationship to sex and birth control.
Enter the glass doors at 222 West 14th Street in New York
City, and the chaos of traffic horns and tire-screeches, jackhammers and
concentrated humanity recedes into a hush.