Proposed federal legislation is just the latest attempt to chip away at women's reproductive freedom.
"Eight days after my 14th birthday, I found out I was pregnant. I had had sex for the first time about three weeks earlier, and that first time we had not used condoms…In a stroke of luck, I happened to have 'inflated' my age on the pregnancy test form…I looked and acted older, so no one doubted my claim that I had just turned 16, not 14. It was lucky that I had done so, because it turned out that 16 was the magic age for getting an abortion in the local hospital without parental consent…The nurse, after telling me this, recommended that I involve my parents in the decision anyway; I told her that I appreciated her concern, but that I wanted to do this without their knowledge…My father was a strict man, a military colonel and a minister. He would not have understood my choice. My mother might have, but she would have felt compelled to tell him…My parents might have forced me to have the baby."
-Catherine, 28
From
The week before Congress recessed for its midterm break, the House passed its version of the aptly named Teen Endangerment Act. If it becomes law, the legislation would prosecute just about anyone who helped teens like Catherine get an abortion without a parent's consent. The bill is an attempt to isolate pregnant and scared girls from the very people-usually other women-who have traditionally supported them in a moment of crisis. Under the law anyone-aunts, grandmothers, older sisters, clergy, you name it-who accompanies a girl from, say, El Paso to Albuquerque for an abortion could be prosecuted.
Conservatives claim the law simply supports parental rights and abortion-related parental involvement laws that exist in many states. In reality, the law would only endanger teens who have to face the wrath of angry parents, navigate reproductive health services alone or who may take drastic measures to self-abort.
The act is the latest addition to a growing list of federal restrictions on abortion. Frustrated that they haven't been able to overturn
Roe v. Wade
in the Supreme Court, the religious right has employed what could be called the Termite Strategy. Like destructive pests, they've infiltrated governor mansions, statehouses, the GOP and, now, the White House. By legislating what they couldn't get from the high court, they've eaten away at
Roe
at the state level, weakening it everywhere from North Dakota to Texas, South Carolina to Colorado.
And now, with a graying Supreme Court, religious conservatives might finally be within gavel-length of gaining a majority. When it comes to abortion cases, the current court is split, either five to four, or six to three, in favor of choice. Chief Justice William Rehnquist, who's battling cancer, and Justices John Stevens, 84, and Sandra Day O'Connor, 74, aren't expected to serve much longer. Bush would likely replace Stevens and O'Connor-who often vote with the pro-choice majority-with hard-line conservatives in the Antonin Scalia/Clarence Thomas tradition.
This reality has led to a GOP proposal to change the laws to block filibusters of judicial nominees. The so-called "nuclear option" has prompted demonstrations nationwide, including several in New Mexico by New Mexicans for a Fair and Independent Judiciary. One last week was staged in Albuquerque outside of the office of US Sen. Pete Domenici, R-NM.
Nonetheless, even as pro-choice advocates fight to protect the filibuster, many now ruefully admit that
Roe
could be overturned within a few years.
For a glimpse of what post-Roe
reality might look like, simply take a look at what's
already happening in states across the country. In every region,
Roe
is hampered by parental involvement laws, state-mandated counseling, mandatory delays, Medicaid restrictions and dwindling providers. If states like California and, to a lesser extent, New Mexico represent the best examples of what could happen post-Roe, Mississippi and South Dakota represent the worst.
Mississippi, which pro-lifers consider a state model they'd like to duplicate, has only one family planning clinic that offers abortions: the Jackson Women's Health Organization. Planned Parenthood, which offers abortion services at clinics in other states, has a clinic in Mississippi, too-but that clinic only issues birth control. Pregnant women who contact Planned Parenthood inquiring about abortion are referred to either the affiliate in Alabama, or the Jackson Women's Health Organization.
Women from other parts of the state might spend hours traveling to Jackson for service, no small matter considering that Mississippi is one of four states that requires in-person counseling 24 hours before an abortion can be performed. Although many states require counseling 24 hours before an abortion, usually it can be done over the phone or by mail.
Mississippi's in-person requirement means women must either make two trips to Jackson-one for the state-mandated counseling, and another for the abortion-or make one trip and spend the night. This latter option may come with a heavy price tag for women who have to take off from work, find sitters for kids back home and find a place to crash overnight.
Pregnant teens must get parental consent from not one, but both, parents, a nightmare for teens of divorced or single-parent families.
Last year the Legislature passed a law that says only centers with ambulatory surgical standards could perform abortions past 13 weeks. The Jackson Women' Health Organization, which performs abortions up to 16 weeks-which is common-and doesn't have an ambulatory surgery center, won a court injunction preventing the law from being enforced. But the law demonstrates just how narrowly Mississippi is willing to define abortion rights.
"They've whittled away so much from
Roe
until there isn't much of
Roe
left," says Larry Rodick, president/CEO of Planned Parenthood of Alabama, which serves southeastern Mississippi and gets referrals from its Hattiesburg affiliate. "We get a steady stream of patients from across the border. They tend to be younger women and the poor, although a lot of the poorest women can't even make the trip because of the associated costs." After pausing a moment, he adds, "I don't think anyone really knows what happens to them."
As restrictive as Mississippi's laws might be, Rodick bristles at the suggestion that the state is some Bible Belt anomaly. "It would be wrong to characterize Mississippi in that way because, really, things are no worse there than many northern states. I would argue South Dakota is every bit as bad as Mississippi."
Indeed, South Dakota's abortion laws are pretty harsh. State-mandated pre-abortion counseling informs women, among other things, that, "depression, psychological distress, increased risk of…suicide, death, hemorrhage, danger to subsequent pregnancies, and infertility are significant risk factors of having an abortion." Next month a new law goes into effect requiring two waiting periods before a woman can have an abortion. And Republican Gov. Mike Rounds signed a law stating that, in the event that the Supreme Court overturns
Roe
, abortion will be immediately outlawed in the state.
New Mexicans shouldn't be too quick to breathe a sigh of relief, however; this state is a lot closer to Mississippi and South Dakota than one might think. Although New Mexico gets a B+ rating from NARAL Pro-Choice America, Giovanna Rossi, executive director of the organization's New Mexico office, points out, "That could almost be us."
Sure, New Mexico doesn't have a parental involvement law. There's no 24-hour delay. There's no state-mandated counseling. And, most incredibly, State Medicaid funds can be used to cover abortion fees for poor women. But, according to Rossi, this isn't the whole story.
"We have an unusual situation in New Mexico. We have an anti-choice Legislature," which has tried to pass several restrictive laws over the years. "The only way we defeat all these bad bills, that would really limit access, is that we hold them up in committee. If these bills ever got to the floor of the House or Senate, which they do periodically, they would pass. Gov. Bill Richardson is 100 percent pro-choice. So, we would rely on him to veto bad legislation. And our lieutenant governor, Diane Denish, is extremely pro-choice, so we'd probably have her vote if it came down to a tie in the Senate. But it's a struggle every legislative session."
Even without all the restrictions, and even with the B+ rating, there are only a handful of abortion clinics in the state: three in Albuquerque and one in Santa Fe (see sidebar page 18). The only clinic in the southern part of the state, in Las Cruces, shut down two years ago. Women in southern New Mexico must now travel about four hours to reach the closest service provider.
"If we had a 24-hour, or an 18-hour, waiting period like they do elsewhere," Rossi notes, "that could be a real problem for women in the southern part of the state." It would also pose a problem for the many women who currently cross the border into New Mexico from El Paso to avoid Texas' mandatory waiting period and parental involvement laws.
When the current anti-abortion movement was young, pro-lifers engaged in violent-and choice advocates say scattershot-strategies that scared mainstream America and marginalized their cause. It turns out bombing clinics, killing doctors and pushing paternal consent legislation simply didn't win them many allies. So they refocused their efforts on electing sympathetic state legislators and were eventually successful in limiting access for two vulnerable groups: minors and poor women.
Due to various funding restrictions, Medicaid-eligible women are rarely able to get Medicaid coverage for their abortions. But with the average surgical abortion costing $364 or more, not including lab work, most poor women can't afford to pay out-of-pocket. The Alan Guttmacher Institute, a national nonprofit that does research on sexual and reproductive health and analysis on public policy, has found that between 18 and 35 percent of Medicaid-eligible women who wanted abortions were forced to carry to term because of a lack of public funding.
Limiting access for teens and the poor worked because people who supported abortion rights weren't necessarily motivated to fight on behalf of these groups. "Some people who identify themselves as strongly pro-choice still support parental involvement," notes Janet Crepps, a staff attorney with the Center for Reproductive Rights. "Other people who are strongly pro-choice still oppose public funding for abortion because they oppose public funding for a lot of things."
With the current web of restrictions that are already in place across the country a return to the two-class reproductive health system that existed before
Roe
already is occurring. Choice advocates say this will only be exacerbated if
Roe
is overturned.
"Some states, like California and New York and others will become abortion destinations, which isn't a problem in and of itself. But some women won't be able to make those trips," Crepps says. "The people who can afford to make those trips will get the health care they need, those who can't will go without."
And the ones who are most likely to go without are the same women who went without in the pre-
Roe
era: teens, poor women and women of color-the very same women who have seen their access to abortion limited by the right wing since 1973.
Another harbinger of the pre-
Roe
era is beginning to emerge in some of the more restrictive states: the so-called "back alley abortion." Of course, these days the back alley is the Internet.
"We're starting to hear stories about a black market for Cytotec, which is used off-label to assist in medical abortions," Crepps reports. "Off-label use of Cytotec by licensed physicians is perfectly fine. Doctors prescribe drugs off-label all the time. But just this year I've heard of three or four instances where women have gotten Cytotec off the Internet or black market and taken it to terminate their pregnancies."
Cytotec, or misoprostol, is one of the drugs commonly used in conjunction with
mifepristone
to induce medical abortions. Use without medical supervision could lead to serious complications, however. When the FDA approved RU-486 in 2000 it restricted its use to the first seven weeks of pregnancy. Crepps is concerned that desperate women might take it much later into their pregnancies when the fetus and uterine lining won't easily pass through an undilated cervix. Women, she says, also might be tempted to take dangerously high doses of the drug.
Other scary stories are surfacing. Crepps says there's some evidence that women are resorting to dangerously invasive measures. "We're starting to hear of cases where pregnant women show up at clinics with suspicious marks on their cervices. Some women are always going to try to self-abort, or get an illegal abortion, if their way is blocked. And teenagers are more likely to self-abort than other women. It's inconceivable to me that we would take steps in this country to make that more likely."
Should
Roe
be overturned, pro-life advocates might feel emboldened to go after that other pillar of reproductive choice: birth control. Already they've been successful in limiting access to emergency contraception by confusing it with the medical abortion pill RU-486.
Preven, the emergency contraception-or "morning after pill"-approved by the FDA in 1998, is a concentrated dose of the same hormones found in other birth control pills. In fact, it works the same way that birth control pills do, by preventing ovulation. But-and here's the "but" the pro-lifers try to exploit-it also can prevent a fertilized egg from implanting itself in the uterus. Birth control pills, and for that matter, IUDs, work the same way; and that is the threshold between abortion and birth control, the very threshold some on the right are using to move into new territory.
Unlike RU-486, neither birth control pills nor emergency contraception can abort a fertilized egg that's been implanted in the uterus. But to conservatives who argue that life begins at conception this distinction is meaningless.
Crepps suspects that right-to-lifers won't win their assault on birth control. "There's very strong support in this country for contraception. And I think if they go after contraception there will be a pretty big backlash."
Perhaps they'll lose this battle in the long run. But they've had some victories. They successfully bullied Wal-Mart into keeping emergency contraception out of its pharmacies. At least two surveys found that many pharmacists incorrectly believe Preven induces abortion. And three states, including South Dakota, have so-called "conscience clauses" which allows pharmacists to refuse to dispense any drug they think will "be used to destroy an unborn child," defined as a fertilized egg.
"I didn't believe in abortion when I was a young woman,"
admits
Albuquerque-based OB-GYN Eve Espey, who had a baby at age 19. These days, as an associate professor of obstetrics and gynecology at the University of New Mexico, she trains residents in the field of family planning and reproductive health and is a strong advocate for choice.
"When I got pregnant, I didn't even consider having an abortion," she continues. "And then, when I became an OB-GYN resident, I rethought my position. Being able to have control over your fertility made sense to me, so then I started to believe in abortion, but I thought I'd never do them myself. And then I started to think about abortion in a public health context, and felt I needed to have the strength of my convictions and provide them."
She currently offers services at Planned Parenthood and recently received a grant to open a reproductive health clinic, which will begin operating next November. Espey uses her own story and experience as a way to open up discussion with the residents she trains.
Each year six young doctors go through UNM's OB-GYN residency. Previously, abortion training was taught on an opt-in basis, meaning residents had to proactively sign up for the training. Under that system, one student a year took advantage of the program. The school now teaches abortion on an opt-out basis. Five residents usually take the training; one will typically opt out.
"We don't treat abortion as a marginalized service, the way it was when I was a resident," Espey says.
Like most people in this country, Espey says the residents are, at their core, pro-choice and believe in the right to privacy. She and the other advocates agree that these deeply held core values will galvanize choice supporters to organize at the state level if
Roe
is overturned.
"This is a service that women get, whether it's legal or not," Espey asserts. "What we've seen worldwide is, when you make abortion illegal, you don't necessarily make it less common. You just make it a lot less safe. I think many people understand that."
While some measure of choice will likely still exist, even post-
Roe
, it probably will reflect what we currently have: a patchwork of different laws and restrictions that vary greatly from state to state. A system where urban women, or those with resources, will be able to access professional services, while teens and the poor will have to fend for themselves.
