National NOW Times >> Spring 2006  >> Article

Online Edition: 2005 -- A Dramatic Year for Women's Reproductive Rights

by Jan Erickson, Foundation Program Director

A shorter version of this article appeared in the print edition of the Spring 2006 National NOW Times

Judges: Roe in the Crosshairs at 33?

A woman's right to control her reproductive life came even more intensely in focus during 2005 as controversial Supreme Court nominations and important legal challenges moved to the forefront. On the positive side, several favorable court decisions pushed back cases that could have weakened abortion rights, but the right wing's persistent efforts to "conservatize" the federal judiciary made considerable advances. The increasing numbers of ultra-conservative judges threatens individual rights, and in particular threatens the right to privacy—the Constitutional underpinning of the 33-year-old Roe v. Wade decision.

Confirmations to the High Court of John G. Roberts as Chief Justice and Samuel A. Alito Jr. as Associate Justice cemented five votes (out of nine justices) against women's abortion rights, making it inevitable that, even if Roe stands, it will be in name only. As the Senate was confirming Judge Alito on Jan. 31, news came that legislators in five states are moving to ban all abortions except when a woman's life is in danger. Those states are Georgia, Indiana, Ohio, South Dakota and Tennessee.

New Judges Oppose Abortion Rights - Several hard core abortion rights opponents were approved for lower courts when seven Democrats struck a poor bargain with conservative Republicans to allow the confirmation of Priscilla Owen to the Fifth Circuit Court of Appeals, William Pryor, Jr. to the Eleventh Circuit Court of Appeals, and Janice Rogers Brown to the D.C. Circuit, Court of Appeals.

As of December 2005, 232 Bush nominees had been sent to the Senate, with 225 confirmed and only five blocked. Nearly all of these new judges at the Appeals Court level are known to be abortion rights opponents and are unlikely to favor plaintiffs in civil rights, consumer rights and employment cases.

Nominees not forwarded by the Judiciary Committee for a floor vote were: Miguel Estrada to the D.C. Circuit Court of Appeals who withdrew his name after refusing to provide documents; Carolyn Kuhl to the Ninth Circuit Court of Appeals who has actively sought Roe v. Wade reversal; Henry Saad to the Sixth Circuit Court of Appeals, a Federalist Society member who often ruled against workers' rights; and Charles W. Pickering, Sr. to the Fifth Circuit Court of Appeals, a partisan activist who led the effort for the Republican party to adopt a platform plank advocating for a Constitutional amendment banning abortions. Bush went around the Senate's refusal to confirmn Pickering by appointing him during a congressional recess, but he retired from the bench when that appointment expired in December 2004. Lastly, Supreme Court Nominee Harriet Miers, a White House counsel with a confusing position on reproductive rights, withdrew her name after a vicious attack on her possible untrustworthiness on key right wing issues these issues.

COURT CASES - IMPORTANT CHALLENGES

In 2005 women's reproductive rights advocates sought protection against harmful state and federal laws in a handful of important cases.

Ayotte v. Planned Parenthood - The National Organization for Women (NOW) joined in an amicus curiae brief supporting this important reproductive rights case, which was heard by the Supreme Court on Wednesday, Nov. 30. The case, Ayotte v. Planned Parenthood of Northern New England, concerns a New Hampshire law, the Parental Notification Prior to Abortion Act, which requires written notice to parents or guardians at least 48 hours in advance of a minor's abortion, and does not provide an exception in the event the young woman's health is in jeopardy.

A decision was handed down by the U.S. Supreme Court on Jan. 18, 2006, which did not invalidate the entire law, but sent the case back to a federal appeals court to re-visit several provisions. O'Connor's opinion found that the lower court had gone too far in striking down the entire law when a more limited remedy was possible—a position that Chief Justice John Roberts is reported to have advocated. O'Connor noted a concern that the New Hampshire act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification or judicial bypass.

"This case is important because it is a very clever and concise attack on the health exception that had been carved out under Stenberg v. Carhart and related cases," said NOW President Kim Gandy. "We believe that the Supreme Court, by allowing the lower court to re-visit the constitutionally questionable provisions, has adopted a delaying tactic. This means the case will likely come back to the High Court for a second time—with Samuel Alito, the fifth vote against abortion rights, able to participate in the case in place of O'Connor.

New Hampshire is among 19 states that require parental notification; 24 states require parental approval before a minor can obtain an abortion.

Gonzalez v. Carhart - In September, U.S. Attorney General Alberto Gonzalez requested that the U.S. Supreme Court review a decision made in July by the U.S. Court of Appeals for the Eighth Circuit, which struck down the so-called Partial Birth Abortion Ban Act of 2003. The appeals court said that this law was unconstitutional because it did not provide any exception to the ban when a woman's health is at risk. The Court was scheduled to consider reviewing that case on Jan. 6, 2006 and reproductive rights advocates were urging the Supreme Court to deny the review request. On Jan. 31, two other Courts of Appeals in which the same law was challenged, the 9th Circuit and the 2nd Circuit, reached the same conclusion, finding the abortion procedure ban unconstitutional.

NOW v. Scheidler - The National Organization for Women Foundation went to the Supreme Court on Nov. 30 to argue for a third time the groundbreaking cases Scheidler v. NOW and Operation Rescue v. NOW. At question was whether a nationwide injunction issued in 1999-which has resulted in a dramatic reduction in violence at women's health clinics-will remain in place.

In the 1980s, NOW pursued a lawsuit under a federal anti-racketeering law against Joseph Scheidler, Randall Terry and other leaders of the self-described "pro-life mafia" who had embarked on a massive, coordinated and violent campaign to end abortion.

"Without this injunction, the legal right to abortion could become meaningless in some parts of the country," said NOW President Kim Gandy. "If women are too terrified to walk into clinics and health care providers are too terrified to keep their doors open, then we will have already lost the fight for reproductive freedom. Roe v. Wade won't mean much if the clinics have been forced to close one by one."

Mississippi and Michigan Cases - Several other 2005 cases in the lower courts were notable. On June 1, U.S. District Court Judge Tom Lee of the Southern District of Mississippi declared unconstitutional a law that, in effect, would have made second trimester abortions illegal. The law would have banned abortions after the first trimester from being performed in any facility other than a licensed hospital or an ambulatory surgical facility. Only one Mississippi clinic, the Jackson Women's Health Organization, provides second trimester abortions and serves about 400 women a year. Mississippi has some of the most harshly restrictive laws on the books, and poor women in most parts of the state are not able to receive appropriate reproductive health care.

A second case resulted in a state ban against abortion being struck down on September 15 by U.S. District Court Judge Denise Page Hood of the Eastern District of Michigan. The ban, entitled the Legal Birth Definition Act, was the third to be passed by the Michigan legislature since 1996. The court found that the act was unconstitutional because it did not contain language protecting the health of the pregnant women, contained "life exception" language that was constitutionally inadequate and contained other unconstitutionally vague language. Left unchallenged, the ban would have prevented Michigan physicians from performing most abortions.

STATE LEVEL ATTACKS

A Tidal Wave of Bad Bills - More than 600 bills were introduced in 2005 in state legislatures relating to abortion, contraception and other aspects of women's reproductive health. Twenty states enacted 27 laws that restrict women's access to abortion and reproductive health care, while five states adopted laws that give women greater access. More than a dozen states have bills under consideration that would allow pharmacists and other health care workers to refuse to do their jobs if it conflicts with their religion or their personal beliefs—including filling prescriptions for birth control or driving an ambulance to the hospital for an emergency abortion.

Fetal Rights Advanced - There was an expansion of the long-term effort to give a fetus personhood rights and protections. Some 115 fetal 'homicide' bills were introduced and six were enacted that recognize the fetus as an independent victim of homicide or assault. In addition, six states adopted laws that punish pregnant women for their behavior while pregnant. A punitive approach to substance abuse by pregnant women is unwarranted; a medical and therapeutic answer is more appropriate and should be the proper focus of such laws.

NOW opposes such legislation because a "person" has specific rights under the United States constitution, and establishing that fetuses are "persons" is part of a long-term strategy by abortion rights opponents to bring fetal rights into direct competition with those of the mother and to eventually to have abortion legally defined as murder.

For a detailed look at the wide array of bills that would, in most cases, restrict abortion rights and contraceptive access in the various states, see http://www.crlp.org.st_leg_summ_midyear_05.html. These include abortion bans, biased counseling and mandatory delay, Targeted Regulation of Abortion Providers (TRAP) laws, clinic access, funding phony "crisis pregnancy" centers, emergency contraception, pharmacist and health worker refusal clauses, contraceptive equity, fetal homicide and "prenatal use" of controlled substances. Unfortunately, three bills (Colorado, Massachusetts and New York) that would have expanded access to emergency contraception were vetoed—all by Republican governors.

State Protections for Emergency Contraception - Three bills that would have expanded access to emergency contraception passed their state legislatures (in Colorado, Massachusetts and New York) but were vetoed—all by Republican governors.

FEDERAL ACTION BLOCKING ACCESS

Emergency Contraception Further Delayed - One of the most talked-about reproductive rights developments of 2005 related to the foot-dragging and politically-influenced decision-making by the Food and Drug Administration (FDA) over an application to allow over-the-counter (OTC) sales of emergency contraception (also called EC, Plan B, or the "morning-after pill"). More than two years of study, review and excuses have prevented a final decision on the application for this safe and much-needed contraceptive option. A Government Accountability Office (GAO) report issued in the fall found that political appointees in the FDA had made recommendations against approving OTC for EC long before the scientific staff concluded its review. The officials' lame excuse was that the drug would encourage promiscuity in teenagers. Two professional advisory panels had already declared EC safe and effective and recommended OTC approval—even for adolescents' use.

Hearings were held in the U.S. House of Representatives regarding an effort to permit pharmacists to refuse to fill prescriptions for contraception when such acts would supposedly violate their conscience or personal beliefs. These developments and others, including the failure to pass the Equity in Prescription Insurance Contraceptive Coverage Act (EPICC), come in a year when the 40th anniversary of the landmark Supreme Court decision in Griswold v. Connecticut was marked. Griswold, in effect, legalized contraceptive use and counseling (at least for married women), and launched the modern era of widespread access to birth control.

Title X Funds Threatened - Nearly level funding for Title X Family Planning programs for the '06 fiscal year was approved in the final budget bill, but Republicans are reportedly aiming for a whopping one-third cut soon. That amount supposedly underwrites services for adolescents which they find objectionable. Ultimately, deep cuts in social spending that the far right Republican leadership wants over the next 10 years may eliminate Title X funding completely. Meanwhile, abstinence-only programs and community-based health care centers that teach "abstinence-only until marriage" programs continued to receive sizeable increases in funding.

Legislation to require parental notification before providing minors with contraceptive pills or devices at Title X-funded family planning clinics was introduced by conservative lawmakers. Also, Sen. Sam Brownback (R-Kan.) held a hearing in June on the impact of Roe v. Wade and Doe v. Bolton. A biased witness panel was asked to comment on the legal and medical consequences of these landmark decisions and to consider what the future might be like if these cases were overturned.

What Conscience? - A sweeping "conscience clause" included in a fiscal year 2005 bill would have allowed any entity, such as a hospital or health insurance company, to deny services or funding for reproductive health care. A modification engineered in the Senate limited the provision to apply to only health officials and hospitals, and only for only moral or religious reasons—though that's not much consolation.

More unconscionable votes: An amendment to restore U.S. funding to the United Nations Population Fund has again failed in the House. An effort to amend the Department of Justice's appropriation with the Compassionate Assistance for Rape Emergencies Act, assuring emergency contraception for sexual assault victims, was refused a floor vote by the House Rules committee in late September. Also, H.R. 1815, a bill to allow U.S. servicewomen, using their own funds, to obtain an abortion in a U.S. military hospital overseas went down, 194-233.

Teen Endangerment Passes House - Finally, the Child Interstate Abortion Notification Act (H.R. 748), a renamed Child Custody Protection Act (we call it the Teen Endangerment Act) passed (270-157) in the House and could be taken up by the Senate at any time. This legislation would make it illegal for a person other than a parent to escort a minor across state lines to obtain an abortion in violation of the home state's laws requiring parental involvement. Wait until grandma goes to jail.