Is time running out on women's reproductive freedom?
On April 18, for the first time since Roe v. Wade, the US Supreme Court decided to uphold a nationwide ban on a specific abortion procedure. It was a stunning defeat for women's rights advocates and abortion rights supporters, many of whom had been warning for years about the dangerous increase in conservative justices on the court.
The ban first was put in place in November 2003, when President Bush signed into law the Partial-Birth Abortion Ban Act. Since 1995, when the first such legislation was introduced in Congress, anti-abortion activists had been working hard to restrict the procedure. A 2000 Supreme Court ruling had struck down a similar law because it failed to provide an exception for women's health. Until last month, many in the pro-choice community felt confident that Bush's law also would be struck down. The Supreme Court's decision to uphold the ban-without an exception for women's health-represented a major coup for anti-abortion advocates.
But all of the attention given to the ban on this one procedure-which represents fewer than 1 percent of all abortions performed in the US-belies the progress antiabortion forces have made in eroding reproductive rights in other arenas. The battle for women's rights has been, in many ways, a long, slow fight. But women's choice advocates say that the federal abortion ban has escalated that pace and now time may be running out.
"My big concern," Martha Edmands, director of public and governmental affairs at Planned Parenthood of New Mexico, says, "is that [with this decision] they are intervening in the doctor/patient relationship in a way that we've never seen before. It seems
to open the door to all sorts of other ways, and I think we can see state legislatures start to introduce all sorts of bans."
In addition to the impact the Partial-Birth Abortion Ban could have in New Mexico, activists say they also are concerned about the ways in which publicly funded sex education, access to contraception and abortion availability are being undermined. Pro-choice activists say all of these arenas have been under attack for years. But in the absence of major developments (like the Partial-Birth Abortion Ban
Act), the general public hasn't been particularly energized on the issue of reproductive rights. Thus, anti-abortion groups have been able to make slow progress on many fronts and successfully reframe the issues to their advantage.
Part of the problem, according to state Rep. Peter Wirth, D-Santa Fe, is that the issue often fails to motivate people who aren't already active abortion rights supporters. When former US Sen. John Edwards came to Santa Fe as a vice presidential candidate in 2004, Wirth had the opportunity to meet him. "I asked him, 'Why aren't you talking about the Supreme Court?'" Wirth recalls. "[Edwards] said, 'Because people don't care. It's not an issue that resonates.'"
Since then, with the retirement of moderate Justice Sandra Day O'Connor and the death of conservative Chief Justice William Rehnquist, President Bush tipped the balance of power on the court by installing two strong conservatives, Chief Justice John Roberts and Justice Samuel Alito. The court's recent reversal on abortion shocked pro-choice advocates-but it didn't surprise them.
The question now is what will happen next, both at the US Supreme Court level and here in New Mexico.
A total of 19 states have laws that could be used to restrict
abortion if Roe v. Wade were overturned; New Mexico is one of them. "There is a 1969 law on the books that has never been repealed," Heather Brewer, executive director of NARAL Pro-Choice New Mexico, says. "It's only been considered unenforceable because of Roe v. Wade.
So if Roe falls, we're looking, at the very least, at an expensive legal battle
over that ban. At the most, we're looking at a criminal abortion ban."
In New Mexico, reproductive rights advocates have been successful in fending off state legislation restricting abortion with the help of a small but powerful group of allies in the Legislature. Many other states have enacted laws imposing waiting periods, parental notification/permission or limits on the use of public funds for abortion but, so far, New Mexico has not.
"There have been a number of anti-choice bills introduced," Wirth says, "but they have not been brought to the floor of the House because they've been defeated in committee." During the 2007 regular session, for example, Sen. Kent Cravens, R-Bernalillo, and Rep. Larry Larrañaga, R-Bernalillo, both introduced bills that would have required parental notification for minors seeking an abortion. Sen. Rod Adair, R-Chaves, introduced legislation that would have required forced sterilization of women who gave birth to babies born with fetal alcohol syndrome or drug addiction. None of the bills made it out of committee.
Even though the Legislature so far has avoided a major battle over abortion, the Supreme Court's recent decision leaves Roe v. Wade more vulnerable than ever. "The
governor is solidly pro-choice," Wirth says, "but there
is disagreement within the parties and within the Democratic caucus. We don't know what would happen if a bill actually made it to the floor."
But the Legislature floor isn't the only place where reproductive rights are at risk. There's also the classroom.
"Why in the world are we having this conversation?" Johnny
Wilson, senior vice president of external affairs of Planned Parenthood of New Mexico, asks. The conversation in question is about abstinence-only programs, a bête noire of reproductive health care providers, who argue that the programs are ineffective at best and dangerously misleading at worst.
Health care groups and reproductive rights activists have spent much of the last few years arguing with the Bush administration about sex education. By requiring federal funds for sex ed to be used for abstinence-only programs, the administration can
effectively delete any discussion of birth control, emergency contraception or abortion in health classes.
Critics in Congress say that when abstinence-only programs do discuss sex, they often promote dangerously inaccurate information. For example, in December 2004, a report presented to Congress by US Rep. Henry Waxman, D-Calif., showed that 11 of 14 of the most commonly used abstinence-only programs were rife with subjective conclusions presented as fact, outright scientific errors and seriously misleading information about the efficacy of condoms, the physical and mental risks of abortion and the transmission of STIs.
Nationwide, Planned Parenthood provides educational programs on all aspects of reproductive health in schools and other settings. In New Mexico, Planned Parenthood gives presentations when invited by individual schools. Meanwhile, the Bush administration has poured millions of dollars into abstinence-only programs that require states to match the funds with $3 of their own money for every $4 from the feds.
New Mexico Secretary of Health Michelle Lujan Grisham is a proponent of comprehensive sex ed. Initially, she tried to use federal abstinence-only money for elementary-age kids, but the federal government refused to allow it and the department was forced to reinstate the programs in middle and high schools.
"Politicians use [their support of abstinence-only programs] to manipulate their political base, to get votes," Wilson says. He believes the state should just return the money, rather than provide an abstinence-only program, particularly given increasing evidence that such programs are ineffective.
In April, a long-overdue study of abstinence-only programs, commissioned by Congress in 1997, finally was submitted to the US Department of Health and Human Services. The average American teenager has sex for the first time around age 17; approximately
70 percent have had sex by the time they turn 19. However, the government's study shows that despite millions of dollars spent on them, abstinence-only programs have no effect on whether or not teenagers have sex, the age at which they first have sex or how many partners they have. This is why, some advocates says, abstinence-only education isn't responsible.
"We have a moral obligation to provide our youth with medically accurate, full information so they can make good decisions," Joan Lamunyon Sanford, executive director of the New Mexico Religious Coalition for Reproductive Choice, says.
The abstinence-only sex ed debate is just one of the ways reproductive health advocates say that federal administration officials ignore and distort facts to promote an ideological agenda that doesn't fit with the scientific evidence. "They have tried really hard to blur the issues so that the public is confused," Edmands says.
Contraception is another way.
Ever heard of the "abortion pill"? Abortion foes have capitalized
on the general public's ignorance of the difference between emergency contraceptive pills, like Plan B (also called the "morning-after pill"), and RU-486, which is commonly known as the "abortion pill," by referring to both as the abortion pill. (Plan B contains
the same active ingredient as birth control pills, the hormone progestin, which prevents ovulation but does not destroy a fertilized egg.) For years, Bush appointees at the Food and Drug Administration took advantage of this confusion to hold up over-the-counter approval of the emergency contraception drug Plan B, long after its own panel recommended the drug be made widely available.
The conflict also plays out on a local level. "There are a lot of issues with birth control and pharmacists who aren't trained to understand the pill or Plan B, what they do and how they work," Brewer says. As it is, several states specifically allow pharmacists to refuse to fill any prescription they feel violates their personal religious beliefs. Other states are considering similar legislation and the American Pharmacists Association supports so-called "conscience clauses."
Doctors, too, may deny services based on their private beliefs. "A woman who's trying to reduce her risk of unintended pregnancy might be trying to do that by going to a pharmacist to get Plan B, but the pharmacist won't give it to her because he thinks it's
the same as RU-486, or she's going to a doctor she doesn't realize is Catholic, who won't discuss birth control with her," Brewer says. Her organization, NARAL, is devoted to fending off laws that infringe on women's rights in these ways, but the Supreme Court hasn't been helping.
"The Supreme Court decision is especially alarming because what it says is that reproduction and the preservation of a fetus is more important than the preservation of a woman's health," Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, says.
Prioritizing the rights of fetuses over women is particularly striking in the "partial-birth abortion" argument. The procedure-known throughout the medical community as "intact dilation and extraction"-is relatively rare (only approximately 2,200 of 1.3 million abortions performed in 2000), but the American College of Obstetricians and Gynecologists says it "may be the best or most appropriate abortion procedure in a particular circumstance to save the life or preserve the health of a woman."
It was anti-abortion factions that successfully rebranded the procedure as "partial-birth abortion." This strategy of reframing reproductive freedom issues has been an important component in chipping away at those freedoms.
"You should hear the way conservatives talk about sex ed,"
Wilson says. "Dr. Laura talks about Planned Parenthood as if we're going in and teaching young girls how to give blow jobs.
They scare the crap out of people!"
Indeed, many advocates for reproductive rights express frustration with the way the religious right spins issues to their advantage. "It's unfortunate, but these fundamentalist groups are well-financed and they are a decade ahead of us in figuring out their political and legislative strategies," Simonson says.
According to a poll last month by NBC News and The Wall Street Journal, 85 percent of Americans believe abortion should be legal in some or all cases. Responding to a short question about the Supreme Court's ruling on "partial-birth abortion," 53 percent said they favored it, but in a longer follow-up question that explained the law did not make an exception for the health of the mother, the number who said they opposed the ruling increased by 9 percent.
Edmands argues that when they're actually engaged, "the public doesn't see these issues as so black and white." Although a March Newsweek poll shows that 91 percent of Americans
believe in God and 87 percent identify with a specific religion, most of them
still support abortion rights.
"Most people of faith feel that abortion is a personal decision between a woman and her god," Sanford says. But most members of Sanford's organization are not evangelicals or Catholics, the groups most active on issues surrounding the beginning-and the end-of life.
For the ACLU, there are important parallels between the issues. "We see religious extremists forwarding legislation to broadly ban not just abortion, but also contraception and access to contraceptives," Simonson says. "At the same time, we're also seeing efforts to erode a person's ability to die a dignified death."
The recent Supreme Court decision also connects to broader questions regarding privacy, according to Rep. Wirth.
"What they're saying is that the government can be involved in people's private lives. There is a whole string of privacy rights, like wiretapping and being able to look into people's homes,
that have been decided by the Supreme Court," Wirth says. "As we begin to erode the overall right to privacy, everyone needs to be afraid."
The challenge for civil rights advocates, Simonson says, is to counteract the religious right's divide-and-conquer strategy by convincing supporters of choice, and supporters of end-of-life options, that they have to "come together and realize that they have a common enemy."
Like many in the nation's rapidly graying pool of abortion
providers, Santa Fe doctor Lucia Cies is a veteran of the gender wars. She sees the conservative ideology behind anti-abortion groups as a throwback to what young women today might consider ancient
history.
"The idea is that the proper role for women in society is to have children and to do that in marriage," Cies says. "And if you do not choose to be married, to be open to having as many children
as that marriage provides, then you're not fulfilling your role as a woman." For Cies, attacks on reproductive rights threaten the hard-earned gains women have made: "The ability to control when and whether one will have a child is about the most basic aspirations of women. To be able to control that aspect of our lives is fundamental to women's rights…and if you don't look at the big picture, you miss that."
On a
practical level, those rights are disappearing fast. Nationally, the number of abortion providers declined by 11
percent between 1996 and 2000, leaving 87 percent of all US counties without an abortion provider. The situation in New Mexico mirrors national statistics. Over
the past two decades, the number of abortion providers in New Mexico has been steadily dwindling. Today there are four: three in Albuquerque and one in Santa Fe.
"The biggest problem in New Mexico right now is the lack of access to a full range of reproductive services," Brewer says. "Whether the law says women have a choice or not, effectively they don't have a choice because of where they live."
Although New Mexico is one of the few states in which Medicaid pays for abortions for poor women, it also has one of the highest percentages of women who don't qualify for Medicaid and can't afford health insurance, according to Sanford. Studies have shown that a majority of abortion patients say they would have liked to have had their
abortion earlier; 60 percent of women who experienced a delay in obtaining an abortion said it was because of the time it took to make arrangements and raise money.
In New Mexico, the cost of an abortion (anywhere from several hundred to more than a thousand dollars) plus the cost of traveling to Albuquerque or Santa Fe, missing work, paying for gas and arranging for child care puts the option of abortion out of reach.
"The reality is that for poor women, young women and rural women-who in New Mexico are disproportionately women of color-Roe v. Wade barely exists anyway," Sanford says.
Still, the tenuous existence of Roe v. Wade isn't the same as its nonexistence, which is precisely what the pro-choice community fears will come sooner rather than later. "The Supreme Court decision is a big wake-up call," Cies says. "Not that we didn't see it coming. We knew that Bush wanted to stack the court with justices who would make the kind of decisions they just made, but I'm afraid that it's going to open the door to legislation on the state level that will be against the medical judgment of doctors."
In the meantime, Heather Brewer is plowing ahead. "We're trying to work with local communities
to make sure that women in rural communities who want contraception or
emergency contraception can get it," she says.
Brewer is focusing on the little things, but also looking at the big picture, thinking ahead to the next legislative session in Santa Fe. "The majority of New Mexicans are pro-choice," she says. "It's up to them to ensure that their legislators reflect their values. If their legislators are not reflecting their values, then they need to take action at the polls."
Wirth agrees: "At the state and national level, it's more important than ever to vet candidates on their position on choice and work to elect pro-choice candidates."
Before it's too late.
