States see new fights on abortion - Both sides expect push for restrictions
By Judy Peres
Copyright © 2007, Chicago Tribune
Published April 27, 2007
Buoyed by last week's victory in the U.S. Supreme Court, abortion opponents in various states are dusting off old laws and drafting new ones to curb access to the nation's most controversial medical procedure.
In the past week, North Dakota's legislature passed a law that would ban virtually all abortions, the Missouri House voted to tighten regulation of abortion clinics and two federal appeals courts were asked to lift injunctions blocking enforcement of state abortion bans.
At the same time, state and federal abortion-rights advocates are stepping up their efforts as well and announced plans to seek laws guaranteeing women the right to terminate a pregnancy.
More than 70 members of Congress -- including Democratic Reps. Jesse Jackson Jr., Rahm Emanuel, Danny Davis and Jan Schakowsky of Illinois -- have signed on as co-sponsors of the federal Freedom of Choice Act. The bill would codify the protections conferred by the Supreme Court in its 1973 Roe vs. Wade decision -- protections the sponsors say have been eroded over the intervening years.
And on Wednesday, New York Gov. Eliot Spitzer said he would introduce legislation to shore up abortion rights in that state and officially decriminalize the procedure.
These are just the latest skirmishes in an ongoing battle. Lawmakers have already enacted hundreds of state laws restricting the circumstances under which abortions can be performed. Many of those laws have been upheld by federal courts, and activists on both sides predict an avalanche of new curbs in the wake of the high court decision upholding the federal Partial-Birth Abortion Ban Act.
More than half the states have bans on this kind of abortion procedure, but they were unenforceable under previous Supreme Court rulings. On Monday the justices ordered appellate courts in St. Louis and Richmond, Va., to reconsider Missouri's and Virginia's laws in light of last week's ruling on the federal statute.
Nancy Keenan, president of NARAL Pro-Choice America, noted that the federal ban says doctors who perform the outlawed procedure could go to jail for two years. But a doctor convicted under the Missouri ban would be guilty of "infanticide," a Class A felony punishable by up to life imprisonment.
While some abortion opponents have been working to overturn Roe directly, others have counseled that an incremental chipping away at abortion rights would be more effective.
In line with that strategy, more than two dozen states have enacted laws regulating facilities where abortions are performed, including such details as how wide the hallways must be and how frequently the air must circulate. More than 30 states have abortion-counseling laws, most of which mandate a waiting period before a woman can give her informed consent to the procedure.
As in most areas of the abortion debate, the two sides don't even use the same language. What anti-abortion groups call "measures prescribing minimum health and safety standards," abortion-rights advocates call "TRAP laws" (for Targeted Regulation of Abortion Providers). What the anti-abortion camp calls "informed consent," abortion-rights forces call "biased counseling" or "misinformed consent."
At least four states compel abortion providers to tell women that abortion increases their risk of developing breast cancer, although the National Cancer Institute has concluded there is no such link. Five states require women to be told that a fetus can feel pain, although that has never been conclusively determined. And four states say abortion leads to severe psychological distress, also disputed.
Karen Nelson, who had an abortion in 1978, wishes she had been told the procedure can be traumatic. Nelson, now a 50-year-old homemaker and mother of seven in Elkton, S.D., says her life went spiraling out of control. She dropped out of college and began drinking heavily, "trying to hide my guilt and shame."
Nelson believes the state should require abortion providers to tell women in advance that terminating a pregnancy may lead to depression and suicide, among other complications.
The South Dakota Legislature agreed, enacting a law in 2005 to require doctors to recite a list of the potential risks of abortion. The law, which has been blocked by court order, also says doctors must tell women contemplating abortion that the procedure "will terminate the life of a whole, separate, unique, living human being."
The U.S. Court of Appeals in St. Louis recently heard new arguments that the law should be allowed to stand. Its ruling is expected later this year.
Dispute on informed consent
On the question of informed consent to abortion, the Supreme Court has said a mandatory waiting period is permissible if it contains an exception for medical emergencies, and counseling materials are all right as long as they're relevant, truthful and not misleading.
That's the crux of the South Dakota case. Planned Parenthood, which is challenging the law, says the script doctors are required to recite -- including the notion that the fetus is a "living human being" -- is ideological, not factual. Its lawyers argued that the law violates the 1st Amendment free-speech right because it compels doctors to parrot state-sponsored ideology.
As "another aspect of informed consent," Denise Burke of Americans United for Life said at least eight states require that women seeking abortions be given the opportunity to see an ultrasound image of their abdomen. A law signed just last month in Mississippi says women must also be allowed to listen to the fetal heartbeat if it's audible.
That, too, seems like a good idea to Nelson.
"Had I seen an ultrasound of my pregnancy -- [had I seen] that this little baby was indeed a baby and not just a blob of tissue -- I know I would have chosen to carry it to term," she said.
Abortion-rights groups say requiring an ultrasound, which may not be medically necessary, increases the cost of abortion and creates a barrier for some.
Anti-abortion strategists admit that the main purpose of ultrasound tests for women seeking abortion is to persuade them to keep the pregnancy. Focus on the Family, which helps anti-abortion pregnancy centers purchase ultrasound equipment, calls it "an invaluable medical tool allowing us to highlight the reality of life inside the womb."
No ultrasound measures have been challenged, and abortion-rights lawyers have had little success invalidating other abortion regulations.
South Carolina in 1995 enacted detailed regulations for first-trimester abortions, which a federal district judge found to be an "undue burden" because they would increase the cost of abortions or could not reasonably be met. But an appellate court overturned that ruling, saying challengers would have to prove regulations were actually preventing women from getting abortions -- a standard that they could not meet.
Illinois' abortion laws are less restrictive than those of many states, said Lorie Chaiten of the American Civil Liberties Union.
Under a settlement reached between the state and the ACLU in 1989, abortion providers are no longer singled out for discriminatory treatment under the state's regulatory laws, Chaiten said. Illinois also has no "misinformed consent legislation" or compulsory waiting periods, she said. The parental-notice statute contains a 48-hour waiting period for minors seeking abortions, but that is still blocked by a court order.