| FootnoteTV, Footnote Fahrenheit, and more | By Stephen Lee |
Abortion rights (last updated November 3, 2001) (back to top) Since 1973, the United States Supreme Court has recognized a woman's constitutional right to have an abortion as a specific form of privacy right, limited only by the state's interest in protecting the life of the unborn child once it has reached a certain level of viability outside the womb. This right under the United States constitution was first established in the case of Roe v. Wade, 410 US 113 (1973), and re-affirmed by a 5-4 majority in the 1992 case of Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992). The judges who upheld abortion rights were O'Connor, Kennedy, Souter, Stevens, and Blackmun, with some disagreement on specific state provisions such as a required waiting period. Four dissenting justices (Rehnquist, White, Scalia and Thomas) believed that Roe was wrongly decided (to them, a right to an abortion is not "fundamental" because it has no textual support in Constitution and because historically abortion was regulated and prohibited) and want to overrule it. This narrow margin of victory - and the continuing political fight over abortion rights - has led some to fear for abortion rights' long-term survival. In his opinion in Planned Parenthood, Justice Blackmun noted that abortion rights are protected but that he "fear[s] for the darkness as four Justices anxiously await the single vote necessary to extinguish the [light]." Since 1992, one of those four Justices (White) and Blackmun himself have been replaced by Clinton nominees, so the pro-abortion rights contingent is presumably now 6-3. Presumably, two justices will need to be replaced before the core Roe rights are again up for possible overturning. Even if the Supreme Court did overturn the central holding of Roe, women could still have rights to have abortions, though such rights would depend on state constitutions and state politics. Without a ruling such as Roe or Planned Parenthood establishing a federal right to have an abortion, each individual state would decide for itself first whether its own constitution provided protection for abortion rights and then whether it would allow abortion and what kind of regulations it would impose. A 2000 survey by the National Abortion Rights Action League reports that, if Roe were overturned, six states would preserve abortion rights, and 11 states would likely ban abortion in all or most circumstances with another 19 states at risk of doing the same. NARAL also reports that courts in 18 states have ruled that their state constitutions provide greater protection for reproductive choice than the federal Constitution. A second prong for the abortion-rights controversy is government involvement in funding and providing abortions. Working around the central Roe holding, many states and local governments imposed restrictions and regulations on the process of getting an abortion in order to make it harder for women to do so. In the Planned Parenthood case, the Supreme Court held that such state-imposed regulations are permissible as long as they do not impose an "undue burden" on a woman's right to an abortion. Accordingly, Pennsylvania's informed consent requirement and waiting period were considered to not be undue burdens and were upheld as constitutional, though a spousal notification requirement was struck down in recognition of the reasons why a woman might not choose to tell the father of her unborn child. Sources: Roe v. Wade, 410 US 113 (1973). Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992). Gerald Gunther and Kathleen M. Sullivan, Constitutional Law, 13th edition (Foundation Press 1997). Barbara Hinkson Craig and David M. O'Brien, Abortion and American Politics (Chatham House Publishers, 1993). The National Abortion Rights Action League's website is available on-line here. Its annual survey of state legislation, Who Decides?, is available here, fact sheets are available here, and its state-by-state guide to legislative bills is available here.  "Partial-Birth" Abortion (last updated March 26, 2005) (back to top) A long-running fight over a controversial and little-used method of abortion has moved from Congress to the courts. In November 2003, President George W. Bush signed into law the Partial-Birth Abortion Ban Act of 2003, which would subject any physician who performed a "partial-birth abortion" is subject to fines and up to two years of prison time. It "would not apply" to a physician if such an abortion was "necessary" to save the mother's "life" from physical harms, but would criminalize such an abortion if done merely for the mother's "health." Bush said in signing the bill (transcript on-line here) that "the American people and our government have confronted the violence and come to the defense of the innocent child." The term "partial-birth abortion" is not a medical one; it describes a procedure which is referred to by the medical community as "intact dilation and extraction" or "intact D&X" and which is generally used late in a pregnancy. Congress has defined "partial-birth abortion" as an abortion in which a doctor "deliberately and intentionally vaginally delivers a living fetus … for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus." Abortion rights before Roe (last updated November 3, 2001) (back to top) With its 1973 decision in Roe v. Wade, the United States Supreme Court established abortion rights under the United States Constitution. This decision was the culmination of years where abortion-rights advocates and interest groups pushed for repeal of state laws proscribing contraceptives and abortions. That movement had already had some success when Roe was decided, and some, including Supreme Court Justice Ruth Bader Ginsburg, criticized the Court for overreaching when states might have passed such laws themselves. Hawaii was the first state to repeal its abortion law and to permit abortions of nonviable fetuses as long as the procedures were done in hospitals. New York State removed all restrictions of abortions performed in the first 24 weeks of pregnancy. Alaska and Washington also allowed abortions for any reason when Roe was decided. According to a survey in Abortion and American Politics, by Barbara Hinkson Craig and David M. O'Brien (Chatham House Publishers, 1993), only three states prohibited all abortions: Louisiana, New Hampshire, and Pennsylvania. All other states allowed abortions in some circumstances, 13 to protect the woman's physical and mental health, one to protect the woman's life and in case of rape, and 29 only to preserve the woman's life. Still, many women had to travel outside their states to obtain abortions. In 23 states, every woman seeking an abortion in 1972 had to leave her state of residence to do so, and in only eight states did fewer than 10 percent of women seeking an abortion not have to do so. Sources: Barbara Hinkson Craig and David M. O'Brien, Abortion and American Politics (Chatham House Publishers, 1993). Statistics (last updated October 31, 2001) (back to top) According to the Centers for Disease Control, there were 1.185 million legal abortions and 30.6 abortions per 100 live births in 1997, the lowest reported figures since the late 1970s.    The "Mexico City" Policy and U.S. Restrictions on International Family Planning (last updated February 14, 2003) (back to top) The United States currently does not fund any non-governmental organization that provides abortion counseling or helps women get abortions in other nations, under a policy first implemented by Ronald Reagan in 1984, rescinded by Bill Clinton in 1993, and re-implemented by George W. Bush in 2001. The so-called Mexico City Policy, sometimes referred to as the "global gag rule," requires nongovernmental organizations to agree and certify that they would not perform nor actively promote abortion as a method of family planning in other nations in order to receive federal funds. The Reagan administration announced the policy at a conference in Mexico City, President Clinton lifted the ban early in his first term while also lifting other restrictions on abortion, and President Bush restored the ban on his first full day in office. House Democrats tried overturning the Bush administration's renewal of the Mexico City Policy with amendments to H.R. 1646, the Foreign Relations Authorization Act for Fiscal Years 2002 and 2003. This language was removed by a 218-210 vote in May 2001, shortly after Bush said that he would veto the entire bill if the language remained. NGOs that do family-planning work thus have to choose between their budgets and their ability to promote and discuss abortions as a method of family-planning. The International Planned Parenthood Federation, for example, said it would not go along with the Mexico City Policy and would thus lose about $5 million in funding that it uses for education and counseling programs. "The global gag rule forces overseas community-based organizations like IPPF to make an impossible decision – forego desperately needed U.S. family-planning assistance, or sacrifice their rights and responsibilities to their clients," IPPF Director-General Ingar Brueggemann said in a statement. "Under the gag rule, recipients of U.S. planning funds must give up the ability to take part in important policy debates in their own countries – in short, the very integrity of their programmes. Either choice hurts the poorest in the world." The U.S. government has not permitted the direct use of federal funds to perform abortions or to provive abortion counseling since the 1973 Helms Amendment. The Mexico City Policy strengthened that policy by ensuring that money could not indirectly fund abortion-related activities by going to one branch of a NGO and thus freeing up money for abortion-related activities. President Clinton removed the Mexico City restrictions in 1993, but they were temporarily re-enacted as a compromise between the Clinton Administration and Congressional Republicans to pay some of the United States' arrears to the United Nations (for more on that, go here). That compromise restored the restrictions for fiscal year 2000 but allowed Clinton to waive some of the requirements in return for a reduction in overall funding for population assistance from $382 to $372.5 million. Both the restrictions and the reduction in funding were undone for fiscal year 2001, but no funds were to be used until the new president took office. In restoring the Mexico City Policy, the Bush administration also said it would maintain the $425 million funding level for FY 2001 "because [Bush] knows that the one of the best ways to prevent abortion is by providing quality voluntary family planning services," according to a statement. Sources: USAID has information on the Mexico City Policy here. The International Planned Parenthood Federation is on-line here; a January 22, 2001 press release on the restoration of the Mexico City policy is on-line here. The International Relations Committee – Democratic Office has a January 2001 foreign policy brief on the Mexico City policy on-line here. The White House's May 8, 2001 statement on H.R. 1646 before it was amended is on-line here. Robin Toner, Clinton orders reversal of abortion restrictions left by Reagan and Bush, New York Times, January 23, 1996. Frank Bruni and Marc Lacey, Bush acts to halt overseas spending tied to abortion, New York Times, January 23, 2001. RU-486 (last updated October 31, 2001) (back to top) RU-486, which is known by the scientific name mifepristone, or mifeprex, is a drug that causes the termination of early pregnancy, defined as 49 days or less, counting from the beginning of the last menstrual period. As the first federally approved drug to terminate pregnancies, mifepristone has been a symbol of the abortion battle of the late 1980s and the 1990s. Mifepristone was developed in the 1980s by the French pharmaceutical company Roussel Uclaf. The drug blocks a hormone that is needed for a pregnancy to continue, and, when followed by another medicine, misoprostol, it ends the pregnancy. The two drugs together are about 92-95 percent effective and are administered in several visits over a two-week period. The French Ministry of Health approved Mifeprex in 1988, but the company voluntarily decided to suspend the marketing of the drug in response to protests by anti-abortion groups until the French minister of health ordered the drug back on the market days later. It was also approved that year for sale in China, and in 1991 for Great Britain and Sweden. Mifepristone has had a much more tortured history in the United States. In 1989, the Food and Drug Administration banned importation of RU-486 for personal use; the ban was tested in 1992, but the Supreme Court refused to hear the case or end the ban. In 1993, the Clinton administration began reviewing ways to test, license and manufacture RU-486. In 1994, Roussel Uclaf donated the United States rights for mifepristone to the Population Council, a nonprofit research institution; it had originally decided a year earlier simply to license the rights. Clinical trials were conducted in the late 1980s until 1995, and the Food and Drug Administration began seeing the drug through its approval process. On July 19, 1996 the FDA Advisory Committee for Reproductive Health Drugs recommended approval of mifepristone, and in September 1996, the FDA issued a conditional approval letter indicating that the drug was safe and effective but that more information was needed before final approval could be granted. Generally, drugs reaching this stage will receive such final approval within weeks and the market shortly thereafter. Mifepristone, on the other hand, was delayed for years due to a series of legal and business disputes between the Population Council and the companies that were to manufacture, market and distribute the drug. In the meantime, Roussel Uclef decided to end production of the drug in part due to moral questions about abortion, and transferred the rights to the drug to a former chief executive who was to start a new company for production in European countries. In addition, the House of Representatives voted 223-220 in June 1998 to block the FDA from approving RU-486, a measure that was folded into a House agriculture bill and that proved ultimately ineffective without a parallel Senate provision. Finally, on September 28, 2000, with the legal and business problems worked out, the Food and Drug Administration announced that mifepristone was approved for marketing in the United States. The drug is distributed by Danco Laboratories of New York City, a company formed in 1999 specifically for that purpose; the actual manufacturer has not been disclosed. The announcement led off every national television news broadcast that night, and was the lead article in the New York Times the next day (previous developments with the FDA in 1996 had also been front-page news in the Times). According to Danco Laboratories, sales information from the first year of FDA-approved sales indicates that non-profit clinics represent 70 percent of Mifeprex sales, with private practices and independent clinics making up the rest, and that doctors in 45 out of the 50 states and the District of Columbia offer Mifeprex to their patients. Despite some discussions about overturning the FDA decision during the 2000 presidential campaign, Department of Health and Human Services Secretary Tommy Thompson announced in April 2001 that there were no plans to review the approval of Mifeprex. HHS announced in March 2001 that Medicaid at the federal level would only cover Mifeprex in rare circumstances such as a pregnancy resulting from rape or incest, or when a woman's life is in danger, which is the same restrictions applying to surgical abortions. Sources: Danco Laboratories' website on Mifepristone is available here. The Population Council's website is available here, with a chronology of the development of Mifespristone here. Lawrence Lader, A Private Matter: RU 486 and the Abortion Crisis (Prometheus Books, 1995). John Sullivan, Another delay in store for French abortion pill on U.S. market, New York Times, June 13, 1997. Tamar Lewin, Lawsuits' settlement brings new hope for abortion pill, New York Times, November 13, 1997. Katharine Q. Seelye, House votes to block F.D.A. on approval of abortion pill, New York Times, June 25, 1998. Gina Kolata, U.S. approves abortion pill, New York Times, September 29, 2000. The "Morning-After" Pill (last updated February 15, 2003) (back to top) Women can use emergency-contraceptive pills to prevent a pregnancy within 72 hours of unprotected sex or sex where another birth-control method may have failed. Emergency-contraceptive pills (sometimes known as the "morning-after" pill, though they can be used for up to 72 hours after sex) have been available in some parts of the world since the 1980s, but were not available in the United States until 1998, when the first pills were approved for the market. Advocates say that emergency-contraceptive pills reduce the need for abortions, but add that women still do not know enough about emergency contraception and need better access to the method. Some doctors and advocacy groups have urged the U.S. Food and Drug Administration to make emergency-contraceptive pills available over the counter instead of by prescription, so that women could have the pills before unprotected sex or could get the pills quickly afterwards. A few states (California, Washington and Alaska) have already established programs under which women can get emergency-contraceptives directly through pharmacists without a doctor's prescription. Some critics, such as the United States Conference of Catholic Bishops, oppose emergency-contraceptive pills on the same grounds that they would oppose abortion methods, arguing that emergency-contraceptive pills terminate a fertilized egg from developing just as an abortion would. Others question whether such pills might encourage unprotected sex. Emergency-contraceptive pills contain stronger, concentrated doses of the hormones used in regular birth-control pills and prevent a pregnancy from developing; they are commonly referred to as "morning-after" pills but can be used within 72 hours of sex. They are not the same as RU-486 (also known by its scientific name mifepristone), which terminates a pregnancy that has already begun. For more on RU-486, go here. Emergency contraceptives became available in some European countries in the 1970s and were specifically marketed for the first time in 1984 in the United Kingdom. In the United States, the Food and Drug Administration encouraged manufacturers to develop a pill by publishing a notice in 1997, approved the first emergency-contraceptive pill for use (Preven, which uses an estrogen and a progestin in each dose) in 1998, and another (Plan B, which contains only the progestin levonorgestrel) in 1999. Some researchers say that emergency-contraceptive pills reduce the risk of pregnancy by about 75 percent, though critics say that the pills' effectiveness has not been sufficiently tested. Emergency-contraceptives were approved for use in 80 countries as of August 2002, according to the International Consortium for Emergency Contraception. Sources : Information about Preven can be found on-line here and about Plan B here. Princeton University's Office of Population Research has information about emergency contraception as well as a geographic index of providers on-line here. The Alan Guttmacher Institute's Guttmatcher Report on Public Policy has published several articles on emergency contraception : Heather Boonstra, Emergency Contraception : The Need to Increase Public Awareness (October 2002, on-line here), and Heather Boonstra, Emergency Contraception : Steps Being Taken to Improve Access (December 2002, on-line here). The American College of Obstetricians and Gynecologists, on-line here, has supported the wider use of emergency-contraceptive pills and has published some articles on the subject, such as David A. Grimes, Elizabeth G. Raymond and Bonnie Scott Jones, Emergency Contraception Over-the-Counter : The Medical and Legal Imperatives (July 2001). The International Consortium for Emergency Contraception is on-line here. The United States Conference of Catholic Bishops has published a 1998 article criticizing emergency-contraceptive pills, on-line here. |
|
 Index / Home FootnoteTV Footnote Fahrenheit Footnote Media Issues Cases Resources Footnote Comics Site FAQ Search via Google Election 2004 
Issues | |||||
|
|