Law Articles

by Jessica Sage 
AUL Staff Counsel
 

Brenda Vise, a 38-year old pharmaceutical representative, died on September 12, 2001.  Holly Patterson, an 18-year old student, died on September 17, 2003.  Chanelle Bryant, 22-years old, died on January 14, 2004.  Vivian Tran, also 22 years old, died on December 29, 2003.  Orianne Shevin, a 34-year old attorney and mother of two, died on June 14, 2005.

What do these women have in common?  They all took RU-486, the so-called “abortion pill,” and died—most from a C. Sordelli infection and one from a ruptured ectopic pregnancy.  RU-486—a drug that its proponents claim is a “safe” and “easy” method of abortion—has killed at least 29 women worldwide including at least 8 American women.

This month marks the 21st anniversary of French approval of the controversial abortion drug.  Initially, the U.S. Food and Drug Administration (FDA) considered RU-486 dangerous and banned the importation of the drug.  However, later in 1993, following the wishes of then-President Bill Clinton, the FDA lifted the import ban and the Department of Health and Human Services (HHS) brokered a deal for the drug manufacturer, Roussel-Uclaf, to gratuitously donate the rights to distribute RU-486 in the U.S. to the Population Council, an organization whose mission is to research, develop and introduce birth control methods (including abortion) to control populations—“especially [for] disadvantage populations.”

Since the Population Council is a research and policy organization, not a drug company, it founded Danco Laboratories for the sole purpose of marketing and distributing RU-486 in the U.S.  Unable to find a U.S. company willing to manufacture the drug, Danco Laboratories turned to China—a nation known for coerced abortions—and a manufacturer formerly cited by the FDA for tainted drugs.

In September 2000—during the final days of the Clinton Administration—the FDA approved RU-486, or Mifeprex (generic name: mifepristone), under its accelerated approval regulations designed to expedite drug approvals for HIV patients.  Suddenly, the FDA deemed that the benefits of RU-486 outweighed the risks and required that it receive expedited approval.  In other words, the FDA succumbed to intense political pressure from the Population Council and abortion advocates to approve the drug.

On its website and in its literature, Danco Laboratories advertises RU-486 as a “safe” and “easy” abortion option.  However, the U.S. trials and subsequent market use are to the contrary.  It is neither safe nor easy. 

A RU-486 or chemical abortion is, in reality, a long, messy, and dangerous process.  RU-486 is a synthetic steroid that requires two drugs and three doctor visits to abort an unborn child at 7 weeks of gestation or less.  During the first visit, the woman takes three pills (Mifeprex) to chemically destroy the unborn child’s environment, deprive him/her of nourishment and subsequently starve the child to death.  During the second visit, if the woman is still pregnant she is given a prostaglandin (misoprostol), which causes cramping to expel the child in something similar to a very heavy and painful (and, at times, deadly) menstruation cycle.  The third office visit (14 days later) confirms the woman is well and the abortion complete.  If the RU-486 abortion is unsuccessful, the women must consider the possibility of birth defects and typically then undergoes a surgical abortion.

The Population Council—with vested interest in the success of RU-486—conducted and reported on the results of the U.S. clinical trials.  Despite the highly-controlled trials conducted from September 1994 to September 1995, the results reported in the New England Journal of Medicine remained alarming.  They revealed how RU-486 creates significant risks of life-threatening complications for the healthiest of women.

The study cited excessive bleeding as the most serious risk.  Excessive bleeding left 4 women needing blood transfusions, 25 women requiring hospitalization (including emergency-room visits), 56 women with “surgical interventions,” and 22 women needing intravenous fluids.  To the logical observer, these “adverse events” would equate to “medical emergencies,” but the Population Council dismissed these life-threatening complications as normal and expected with a chemical abortion.

The studies also indicated that women suffered from abdominal pain, nausea, vomiting and diarrhea.  Abdominal pain, referred to as “cramps,” was so significant that 68% of women received at least one pain medication and 29% received opiates.  One woman was hospitalized for the intense pain and actually needed two “surgical interventions.”

Further, the study results also confirmed that a chemical abortion “procedure” must begin within 49 days of conception, otherwise the baby’s size and development are too advanced and complications are admittedly too severe and dangerous.

Inexplicably, the report paid little attention to the other adverse events women reported including headache (32%); dizziness (12%); back pain (9%); fatigue (9%); fever (4%); vaginitis (4%); viral infections (4%); rigors (3%); dyspepsia (3% ); and asthenia, leg pain, anxiety, insomnia, anemia, syncope, leukorrhea, and sinusitis (2% each).  And if that is not enough, endometritis occurred in 19 women.  These are not just percentages and not simply insignificant statistics, but real women experiencing real complications (some requiring timely life-saving measures) after taking RU-486.

The Population Council acknowledged that the study showed that RU-486 had a low success rate and attempted to rationalize the discrepancy as merely “a lack of experience with [chemical] abortion in the United States as well as the design of [the] study.”  If this is true, then how much lower would the success rate and higher the complication rate be once approved by the FDA and introduced to the uncontrolled and unmonitored marketplace?  Unfortunately, U.S. women are finding out first-hand.

Since its September 2000 FDA approval, RU-486 has caused at least 8 deaths, 9 life-threatening incidents, 116 blood transfusions, and 232 hospitalizations for more than 1,100 women in the U.S. who experienced significant medical complications.  These numbers are only the incidents reported to and by the FDA and are likely an inadequate reflection of actual incidences.

The futile efforts by the FDA to make an unsafe drug acceptably safe by detailing certain limitations on who can prescribe the drug and the protocols to be followed are obviously insufficient.  On November 15, 2004, the FDA issued “important new safety changes” to the labeling of RU-486.  The FDA and drug manufacturer Danco Laboratories had received reports of serious bacterial infection, bleeding, ruptured ectopic pregnancies, and death.  The FDA’s response:  Change the black box labeling and nothing more.  The new label warns health care professionals and consumers about the “risk of serious bacterial infection, bleeding, sepsis, and death,” but does nothing to protect women from these risks actually occurring.

If past care is indicative of future care by abortion providers, none of these warnings will protect women.  Planned Parenthood and other abortion providers have notoriously failed to adhere to the labeling instructions or given appropriate medical attention to women who notify them of these dangerous complications after taking RU-486.  Since its approval, RU-486’s promoters have ignored the minimal FDA guidelines by recommending lower dosages, suggesting clinics drop follow-on visits to allow patients to self administer at home, promoting vaginal versus oral administration, and extending the usage deadline past the seven weeks prescribed by the FDA—all harming women who are entrusting their lives to these “reproductive care” providers. 

States can and must act to regulate and – in the case of minors – limit the use of RU-486.  Current FDA guidelines do nothing to restrict minors from obtaining RU-486 or restrict physicians from implementing the drug in “off-label” uses.  It does require the drug to be provided by or under the supervision of a physician who meets certain qualifications—but most abortion providers meet these requirements and have clearly shown their willingness to prescribe RU-486 in “off-label” and life-threatening ways.

In 2004, the Ohio General Assembly enacted a law requiring abortion providers to comply with the FDA-approval letter and the uses, dosages, and administration protocols contained in the drug label.  In July 2009 —after five years of legal battles with Planned Parenthood—the Ohio Supreme Court answered that the plain language of the law mandates that abortion providers follow the instructions contained in the medication guide and drug labeling when administering or prescribing RU-486.  Subsequently, the Sixth Circuit removed an injunction against the law’s enforcement and remanded the case to the district court.  In light of the dangers associated with RU-486 and its American track record, it is astounding that Planned Parenthood would even argue that it need not follow the approved and “safe” method of administrating RU-486.

States can and should further protect women from RU-486 by imposing administrative regulations on its administration by requiring that abortion providers follow the FDA-approved drug labeling.  Second, to prevent “satellite” prescriptions, states could consider physician-only limits on RU-486 explicitly requiring physicians to be physically present at the abortion facility when they prescribe and administer the drug and clearly prohibiting the delegation of actual administration duties to nurses, physician assistants, or others.  It would also be prudent to require the facilities to be able to provide or be proximate to emergency care and to mandate ultrasounds before prescribing RU-486 to accurately determine the gestational age of the unborn child and to rule out ectopic pregnancy.

Another necessary consideration is for states to review existing—and enact, if nonexistent—parental involvement laws requiring abortion providers to involve parents when a minor girl seeks a RU-486 or other chemical abortion.

Despite the real and evidenced dangers of RU-486, the FDA, the drug manufacturer, and prescribing abortion providers continue to believe the “adverse effects” are not statistically significant.  They continue to profess its safety and ease as more and more women are sacrificed at the altar of “reproductive choice.”  At what point will the harm to women be significant enough for the FDA to pull this deadly drug from the market?  The answer is unclear.  In the meantime, it is imperative to regulate and, when appropriate, restrict the use of RU-486 to protect women and to limit the “collateral damage” abortion advocates are clearly willing to accept.

This article was published with permission from Culture of Life Foundation. To view the original publication, see their website.

By Mailee R. Smith
Staff Counsel
 

This year marks the tenth “anniversary” of the Food and Drug Administration’s (FDA) approval of the “emergency contraceptive,” Plan B.  A decade later, Plan B is not only just as unsafe, but now the drug manufacturer is targeting our children.

The FDA first caved to abortion advocates’ demands in 1999 when it approved the prescription status of Plan B.  While touted as a drug to prevent pregnancy, the drug manufacturer does not hide the fact that it will prevent the implantation of an embryo.

But as we have come to expect, the availability of Plan B through prescription was not enough for abortion advocates.  So in 2001, a group of organizations petitioned the FDA to make Plan B available over the counter.  A lawsuit was also initiated in a federal court in New York.  While at first the FDA denied the request, it caved once again in 2006 when it approved over-the-counter sales of Plan B to women 18 years of age and over.

Not surprisingly, this was not enough for abortion advocates, either.  They complained that the health of minors was at stake because minors did not get unfettered access to Plan B.  Of course, men who impregnate minors can buy Plan B and give it to minors, but this is largely ignored by the abortion advocates.  Maybe because they are too busy trying to hide the abortions of minors whose adult perpetrators were not “smart enough” to buy Plan B in time.

So abortion advocates reframed their lawsuit in New York, suing the government because Plan B is not available to children under 18 years of age.  On March 23, 2009, a federal district court in New York ruled that Plan B must be made available to 17-year-old minors and directed the FDA to reconsider its policies regarding minors’ access.  The Obama administration did not appeal and the FDA intends to comply with the ruling.

In June of this year, the FDA approved the first generic version of Plan B.  After all, isn’t it the goal of abortion advocates—ahem, like Justice Ginsberg—to make sure poor women and women in minorities don’t reproduce? 

In July, the FDA followed up by approving “Plan B One-Step.”  While Plan B in its original form required the ingestion of two pills, Plan B One-Step merely requires the ingestion of one pill.  In other words, the FDA has approved a pill that is even stronger than original Plan B—which is also available to anyone 17 years of age and over.

And the question still remains: If Plan B is stronger than regular birth control, and regular birth control is too strong to allow women (let alone minors) access without prescription… just why is it safe to allow unregulated access to Plan B?

The answer: It’s not.

Not only are the higher amounts of hormones found in Plan B (as compared to regular birth control) unsafe for over-the-counter status, but over-the-counter access has made Plan B available to a broader range of women than it was even tested upon.  The maker of Plan B has not researched what happens when adolescents take Plan B.  In addition, the maximum safe dose for levornorgestrel, the active ingredient in Plan B, and the effects of overdose have not been determined by scientific study on any age group.  And without physician oversight, women with health conditions that are at risk for serious complications following use of Plan B will have no guidance in taking the drug.  They won’t even know they shouldn’t use it.

Moreover, Plan B is used to exploit women.  A study done in Thailand, where emergency contraception has been available without prescription for almost 20 years, had the following comments: “Although many feminists believe that the morning-after pill gives them more control over their own bodies, it would seem, judging from the few studies conducted so far, that it is actually being used by men to exploit women.”  Indeed, studies revealed that men were the most frequent buyers.  Many women did not even know what they were taking; they were simply told by their partners that the pill was a health supplement.  In addition, easy access to an easily-administered drug encourages the continued exploitation of women by sexual predators.

Further, broad availability of Plan B has not reduced the number of abortions, but has led to higher rates of sexually transmitted diseases.  For example, once emergency contraception became available without prescription in the United Kingdom, use among teenage girls doubled from 1 in 12 to 1 in 5.  In fact, one study reported that 4 out of 12 women were influenced to have unprotected sex because of the easy access to emergency contraception.  In those areas with easy access to emergency contraception, the number of sexually transmitted diseases has skyrocketed.

It’s too bad that the drug manufacturer and abortion advocates didn’t spend the last 10 years investigating the safety concerns of Plan B. 

But their efforts did make one thing clear:  Their alleged concern for women and minors is mere rhetoric.  It’s really about the money.

This article was published with permission from Culture of Life Foundation. To view the original publication, see their website.

By Kellie M. Fiedorek
2009 Legal Extern
 

The President of the United States is in a unique position to profoundly influence the nation’s debates over key social and political issues for decades after he leaves office.  He can do this because he maintains the authority to appoint judges to the nation’s federal courts including the U.S. Supreme Court. 

Although these nominees – including those for federal district courts and for highly-influential federal circuit courts — must be approved by the Senate, the President bears the responsibility to nominate men and women he believes are qualified for these important positions. More often than not, he also seeks to nominate individuals that share his political and social views as well as his judicial philosophy.

The decisions of these judges impact not only the parties involved in a particular case, but also the entire judicial system and even society at large.  At the appellate level, judges’ decisions become the precedent in the particular circuit where they are decided and provide persuasive authority for other federal and state courts.  Moreover, in the Supreme Court, the Justices’ decisions set an enduring precedent – one that is not often subsequently reversed or even revisited.

The President, therefore, possesses the distinctive power to impact various legal, political, and policy debates and determinations through his judicial appointments.  Because federal judges are tenured for life, the President can leave a lasting impact on the United States and its laws long after his presidency has ended.  Consequently, it is critical to be informed about the President’s motivation and ideology and understand the types of individuals he will likely appoint and the impact they will have. 

At this critical juncture in our nation’s history, it is particularly important that Americans are prepared to articulately discuss and courageously challenge any appointee whose record reveals a failure to uphold the deepest values on which this nation was established—the equal right to life, liberty, and the pursuit of happiness of all human beings.

Several current Justices on the U.S. Supreme Court are past or nearing retirement age, and quite possibly have been waiting for a Democrat President so they can “safely” announce their retirements.  Additionally, Justice Ruth Bader Ginsburg is currently being treated for pancreatic cancer.  Thus, it is extremely likely that there will be a vacancy on the Supreme Court in the near future and that President Obama could even appoint at least one Justice as early as this summer.  

Looking at President Obama’s public statements and record thus far, it is evident that he will most likely appoint activist Justices who interpret the Constitution broadly and read their own views into the law rather than simply applying the law.  This could include reading the spirit and intent of the Freedom of Choice Act – radical federal legislation that seeks to impose unregulated, unrestricted, and taxpayer-funded abortion-on-demand on the nation and to overturn more than 500 protective state and federal laws related to abortion – into the Constitution (which, as drafted, is silent on abortion).

During his campaign, President Obama stated that he finds himself compelled “to side with Justice Breyer’s view of the Constitution –that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”   A Justice’s view on how to interpret the Constitution is paramount.  The differing treatment of partial-birth abortion bans by the Rehnquist and Roberts courts, for example, reveals the importance of the Justices’ interpretative approach to the Constitution.   A Court controlled by Justices who embrace the idea of a “living Constitution” frequently find constitutional barriers to the political outcomes they dislike, while they ignore the constitutional texts that conflict with the government actions of which they approve.  While perhaps not always free from error, those Justices who embrace the textualist approach at least demonstrate a greater willingness to return difficult questions that the Constitution does not specifically address to the democratic process.

It is widely expected that President Obama will appoint U.S. Supreme Court Justices who support unfettered abortion rights and who would interpret that “right” in an increasingly unrestrained and radical manner.  During his campaign, President Obama publicly stated that he would appoint candidates in the mold of Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter, three of the Court’s most avid pro-abortion Justices who, for example, voted to strike down the federal ban on partial-birth abortion.  

Additionally, Americans should not limit their caution and attentiveness to President Obama’s potential Supreme Court nominees, but should also remain alert regarding who he nominates to the federal district and circuit courts.  Activist judges in these positions, who value their own interpretations of the law over justice and human dignity, remain equally as dangerous as those Justices appointed to the U.S. Supreme Court because decisions in the lower federal courts can have more significant and lasting impacts.  Cases appealed to the federal circuit courts seldom reach the U.S. Supreme Court, so these lower courts frequently have the final word on crucial issues.

Currently, there are 15 vacancies in the federal circuit courts — 12 geographically-based federal courts of appeal.  Their decisions cover, among other matters, abortion, civil rights, searches and seizures, age and gender discrimination, gay rights, review of federal regulations and terrorism, religious liberty, capital punishment, and corporate wrongdoing.  Many Americans are rightly concerned about the types of nominees President Obama will appoint to these courts, especially in light of the radically pro-abortion candidates he has already nominated to important positions in his Administration.

Further, President Obama has recently made several controversial nominations to three federal circuit courts.  These nominations reveal not only a shift in the federal judiciary toward Democrat control, but also a radical disregard for the principles on which this country was founded. 
   
On March 17, Obama nominated Judge David Hamilton, a federal district court judge in Indiana with an extensive pro-abortion and anti-religious freedom record, to the 7th Circuit  Hamilton – President Obama’s first judicial nominee — is the former Vice President for Litigation and a board member of the Indiana branch of the American Civil Liberties Union (ACLU) and a former fundraiser for the Association for Community Organizations for Reform Now (ACORN).  Hamilton was first appointed to the federal bench by President Bill Clinton in 1994, even though the American Bar Association (ABA) had given him a “not qualified” rating.

As a federal judge, Hamilton issued multiple rulings over seven years to prevent Indiana’s informed consent law—a law that fully complied with the U.S. Supreme Court’s requirements for such laws (as set out in the 1992 Planned Parenthood v. Casey decision)—from going into effect.  The 7th Circuit—the same court to which President Obama has nominated Hamilton—later reversed his decision, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”   Hamilton ruled in another decision that the Indiana House violated the Constitution by opening its session with prayers mainly representing the Christian tradition.  He stated in his decision that “they should refrain from using Christ’s name or title,” and held that sectarian prayer at the opening of the legislatives session should be banned.

Earlier this month, President Obama nominated Judge Gerard Lynch to the 2nd Circuit and Judge Andre Davis to the 4th Circuit.  Judge Lynch was a former cooperating attorney for the ACLU and Judge Davis has a reputation for handing down rulings favoring criminal defendants.  Additionally, in two cases where African-American restaurant patrons claimed they were subjected to hostile treatment, Davis instituted a framework for evaluating such claims.  While this framework was subsequently adopted by several other federal district courts, the 4th Circuit declined to do so.  Davis’ presence on the 4th Circuit could strongly influence that court on civil rights issues, in addition to bringing a more activist approach to interpreting the law.

Clearly, Americans have reason to be concerned about President Obama’s early judicial nominations as they appear to indicate that he will appoint judicial activists with radical views on critical issues such as abortion, religious freedom, and civil rights for all Americans.

Without question, the judicial appointment process must focus on the candidate’s ability and qualifications, as well as his or her willingness to adhere to the proper role of a judge, namely, to interpret the law and properly apply it.  The only litmus test the President should be applying is that judicial nominees have significant experience in the federal judiciary and recognize the extent of their authority.  This would include an acknowledgment that the judiciary is not a means to affect policy, reconstruct laws, or express political viewpoints.  As Americans, we should insist that the President hold each potential judicial candidate to this standard so that, when the President’s time in office concludes, the lasting effects of his presidency benefit the entire country.  

This article originally appeared on the Culture of Life website. To view the article as originally published, see Culture of Life.

By Jessica Sage
AUL Staff Counsel
 

When President Obama approved federal funding for embryonic stem cell research he stated, “It is about ensuring that scientific data is never distorted or concealed to serve a political agenda — and that we make scientific decisions based on facts, not ideology.”  If this is true:  When scientific decisions involve public policy, where are the ideological and moral debates supposed to take place?  Perhaps the federal district court in NY, where one judge’s ideology and political agenda ignored scientific facts and trumped all policy considerations by directing the elimination of age restrictions on the over-the-counter (OTC) use of Plan B “emergency contraception” and by requiring no physician or parental involvement for minors.

Two weeks ago, in Tummino v. Torti, No. 05-CV-366 (E.D.NY. Mar. 23, 2009), the judge ordered the federal Food and Drug Administration (FDA) to reconsider its denial of a citizen petition to approve Plan B for OTC status without age restrictions and further declared that “no useful purpose would be served by continuing to deprive 17 year olds access to Plan B without a prescription.”  He further directed compliance of this OTC availability to 17 year olds within 30 days.

Case Background & History

The FDA approved prescription-only use of Plan B in the U.S. in 1999 and currently it is the only so-called “emergency contraceptive” drug sold in the U.S.  In 2001, the FDA received a citizen petition from the Center for Reproductive Rights (CRR), representing numerous family planning and health organizations.  CRR is an organization that advances reproductive freedom as a fundamental right and hopes to see all governments legally obligated to protect, respect, and fulfill this “right” through – among other measures – mandated access and funding of contraception.  Their request:  To switch Plan B from prescription to OTC without age restrictions. 

The FDA has approved no other hormonal contraceptive to be used without a prescription and physician’s oversight.  CRR’s clear political and ideological agenda advocated for broader distribution and unrestricted access to “emergency contraceptives” for women and young girls of all ages regardless of the evident safety and policy concerns over Plan B.

The FDA deferred its response to the citizen petition because the supporting information was insufficient to make the OTC switch for all ages.  The FDA awaited the drug sponsor, Barr Pharmaceuticals (Barr), to conduct the necessary pediatric studies.  But rather then conduct the studies, Barr simply amended its application to seek OTC approval for women 17 years and older.

In the meantime, CRR and fellow family planning advocates filed this lawsuit against the FDA.  Later, the FDA denied CRR’s petition (in June 2006) for its insufficiency of data.  However, by August 2006, the FDA approved Barr’s OTC application for women 18 years of age and older.   The then- acting FDA Commissioner documented that its approval for 18 versus 17 year olds was based on the states’ ability to enforce the age restriction and the lack of evidence that 17 year olds can self-medicate safely.

In Tummino v. Torti, the federal district court judge disagreed with the FDA’s age restriction and ordered the FDA to make Plan B OTC accessible to 17 year olds within 30 days and to reconsider approving it for women of all ages.

Issues and Concerns Raised by District Court’s Decision

The district court’s decision ignored or failed to adequately address a number of significant concerns:

There is No Meaningful Distinction between Prescription and OTC Plan B

In his opinion, the judge failed to address the legality and concern of the FDA approving prescription and OTC Plan B without distinction in the drug or the labeling—an unprecedented FDA approval of dual marketing for which the FDA sought public comment.

In their public comment to the FDA, Concerned Women of America (CWA), the Family Research Council (FRC), the Christian Medical and Dental Associations (CMDA), and the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) argued that dual marketing causes confusion between the drug products, that the FDA lacked authority and infrastructure to enforce an age restriction distinction between prescription and OTC, and that it remains unproven that Plan B can be used safely without physician involvement.

Historically, the FDA interprets applicable regulations to require a “meaningful difference” between a drug that is prescription and one available OTC.   Five parameters are considered to deem a difference meaningful—the product’s active ingredient, indication, strength, route of administration, or dosage form.  A subpopulation, related to age, has never been found to be a parameter permitting a dual drug status.

The judge failed to acknowledge any difference, meaningful or otherwise, between the prescription and OTC Plan B drugs.  In addition, he required no difference in the labeling to distinguish between a prescribed Plan B and one purchased OTC.

FDA Lacks Enforcement Mechanism for Age Restrictions

The judge failed to address the FDA’s inability to enforce an age restriction on OTC access of Plan B.  The FDA has no statutory authority, much less the economic or personnel resources, to enforce the court-dictated OTC Plan B sales—leaving the enforcement activities to the states, local governments, or pharmacies.  Neither the FDA, nor the judge, gave any instructions to these third parties, leaving enforcement unchecked and inconsistent throughout the U.S.

Further evidence, revealed during the public comments on the dual status of prescription and OTC Plan B, demonstrated that efforts to restrict consumer access to certain nonprescription drugs proved to be ineffective.  For example, using their controlled substances laws in an attempt to prevent abuse of certain medications, some states have restricted access to cold medicines with codeine and required them to be behind the counter (BTC) with a pharmacist.  But many states found the restrictions did not achieve their intended purpose and roughly half of the states abandoned the restricted access by changing the drug status to prescription-only.

Plan B is Not Safe for Self-Administration Particularly by 12-16 year olds

The judge ordered the FDA to reconsider its decision requiring a prescription for Plan B for women under 17 despite the noted lack of evidence that it can be safely self-administrated by this vulnerable age group.

By regulation, the FDA deems a drug suitable for OTC use: (1) when it is found to be safe and effective for self-administration; and (2) when the labeling provides clear directions for safe use and warnings of misuse, side effects and adverse reactions.  When a drug is intended for pediatric use, regulation necessitates that the FDA receive adequate data to assess the safety and effectiveness, and to support dosing in pediatric subpopulations.

Given that all other hormone-based contraceptives require prescriptions and physician oversight for women of all ages, the FDA proceeded with warranted caution in initially approving Plan B for age-restricted OTC access. According to its letter denying the CRR’s 2001 petition, the FDA noted these unanswered questions:

• Could consumers of all ages – particularly sexually active girls under 18 – use Plan B within the proper time intervals without the assistance of a health care practitioner?
• Would consumers who are already pregnant use Plan B?
• Would consumers of all ages know what to do if they had an adverse reaction or developed unexpected vaginal bleeding prior to or after using Plan B?
• What changes in sexual contraceptive behaviors result from Plan B use?
• What are the rates of unintended pregnancies and STDs associated with Plan B use?
• Are there any safety or efficacy concerns associated with repeated use of Plan B?

The FDA concluded that there was insufficient evidence that 17 year olds could safely use Plan B OTC.  More specifically, the Plan B OTC Label Comprehension Study revealed significant discrepancies in young users’ ability to self-medicate.  An alarming 33 percent of participating women understood that Plan B could be used as a regular contraceptive.  In the case of unexplained vaginal bleeding, 25 percent of women did not understand that Plan B should not be used while 19 percent of women did not understand that they should seek medical care if severe abdominal pain developed.  The FDA further concluded it was inappropriate to use data from women 17 years of age and older to extrapolate the probable use behaviors of younger girls.

The district court disregarded these safety concerns and controversial societal perspectives of Plan B.  It did not rely on science, but rather it relied on certain ideological opinions in the record—believing access to Plan B was more important than ensuring its safe use. 

Plan B’s Unproven Safety Record

The district court dismissed the risks involved in taking Plan B, particularly when administered without physician counseling and oversight.  There are significant health risks inherent in the use of Plan B including serious drug interactions, increases in known risks such as ectopic pregnancy, and unknown consequences from patient’s non-compliance with drug instructions and warnings.

First, Plan B can interact with other drugs and may lead to serious and dangerous drug interactions.  Drugs which may interact negatively with Plan B include drugs used in therapies to treat HIV-1, tuberculosis, and mild to moderate depression—diseases that affect more than 20 million people nationwide.

Second, no distinction has been made between the risks for other hormonal oral contraceptives and Plan B.  According to label warnings, progestin-only oral contraceptives are associated with ectopic pregnancies, delayed follicular atresia, irregular genital bleeding, and cancer of the breasts and reproductive organs. 

Other oral contraceptives with the same active ingredient—but a lower dosage—warn not to use the drug with known or suspected pregnancy, known or suspected breast cancer, or undiagnosed vaginal bleeding.  It is recommended that patients be counseled and examined by a physician before using oral contraception.

Third, AAPLOG has expressed great concern over the increased risk of ectopic pregnancy associated with of the use of Plan B and other “emergency contraceptives.”  In 2003, the United Kingdom’s (UK) Department of Health alerted British doctors to possible risk of ectopic pregnancy associated with “emergency contraceptive” use.  Evidence had revealed a 6% rate of ectopic pregnancy (or 12 in 201 cases) when “emergency contraceptives” failed — three times the expected rate of ectopic pregnancy.  Notably, no one has presented evidence to alleviate AAPLOG’s concern.

Further, the Plan B OTC Label Comprehension Study revealed that approximately 20 percent of women—in a clinical study, not actual use—did not understand they should seek medical attention if severe abdominal pain develops after using Plan B, a symptom of possible ectopic pregnancy.  The lack of physician involvement elevates the risk of women misdiagnosing the signs of an ectopic pregnancy, which without early detection can result in significant harm and possibly death for a woman taking Plan B.

Fourth, there has been little discussion of patient compliance or lack thereof.  The potential for repeated and frequent use of Plan B creates unknown risks.  The FDA does not have data on the likely abuse of Plan B as a form of regular contraception.  The Plan B labeling does not provide information as to how often or how long to wait before repeating use of the recommended dosage.

There is no evidence to suggest OTC Plan B encourages consultation with a physician or results in a woman seeking the use of regular contraception—in fact, the evidence strongly suggests otherwise.  These realities combined with the inherent health risks of taking Plan B leaves women’s health unnecessarily compromised.

Plan B Has Been Shown to Increase Rates of Sexually Transmitted Disease

The district court did not address the increased rates of sexually transmitted diseases (STDs) among women who use “emergency contraceptive” including Plan B.  Rather, it simply referenced one doctor’s opinion that frequency of STDS remained consistent across studies and ages – inexplicably ignoring the fact that the rates were consistently higher with “emergency contraceptives” use. 

CWA has received numerous comments from physicians articulating the dangers of this OTC policy for Plan B.  Their experience reveals that when women are able to receive contraception without seeing a healthcare professional, they are typically ignorant of STDS and the long-term risks and complications associated with and will remain ignorant of this important information.

Studies in the UK and elsewhere strongly indicate an increase in STDs among “emergency contraceptives” users.  In 2000, the UK made a highly-controversial decision to make ”emergency contraceptives” available directly from pharmacies to women over the age of 16.  Five years after initiating this “experiment,” one report detailed a 76 percent increase in chlamydia, a 55 percent increase in gonorrhea, a 54 percent increase in syphilis, and a 20 percent increase in genital warts.  For all of these infections, the highest rates and the fastest increases were found among women ages 16-24.”[1]

In Scotland between 1998 and 2004, rates of chlamydia rose by 106 percent.  Scottish executive figures reveal almost half of all chlamydia cases diagnosed in 2002 were in people under 25 years of age and that there had been a 66 percent increase in cases involving those under 16.

A Swedish study published in 2002 reported that “[STDs] were on the rise among adolescents who had OTC access to [”emergency contraceptives”] and other forms of contraception.”[2]  More specifically, genital chlamydial infections increased from 14,000 cases in 1994 to 22,263 cases in 2001, with the most drastic increase among teenagers.[3]

AAPLOG notes the most common reason young women visit a physician is to obtain contraception and that it is in a physician-patient environment where these women can receive proper counseling, early detection of STDs, and make their best decisions regarding family planning.  In addition, the American Academy of Pediatrics’ (AAP) recommends that teens receiving “emergency contraceptives” by a telephone consult should follow-up with an appointment to determine if a pregnancy exists and to be screened for STDs.

These striking increases in STD rates among OTC “emergency contraceptive” users should negate any attempts to make Plan B available OTC to young American women and should instead mandate physician involvement through prescription-only access.

Plan B Has Not Been Shown to Reduce Unwanted Pregnancy and Subsequent Abortions

The district court failed to acknowledge that overwhelming evidence has demonstrated that OTC access to “emergency contraceptives” has failed to reduce rates of unwanted pregnancy and abortion.  Instead, the district court clearly shared CRR’s “fear” that a delay in access—by physician prescription or point-of-sale restrictions—to Plan B would render the drug ineffective and increase the chance of unwanted pregnancy.  Yet, studies clearly show that Plan B does not produce “as advertised” results even when provided to woman in advance.

American research conducted in 2005 (and reported in the Journal of the American Medical Association) failed to support the contention that OTC marketing of Plan B would decrease the number of unintended pregnancies.  Specifically, a study of 2,117 young women ages 15-24 showed that providing OTC access to EC did not result in any decrease in the pregnancy rate.[4]

On her webpage for Reproductive and Developmental Sciences, Professor Anna Glasier, concedes, “[my] research has led to the conclusion that the widespread use of [“emergency contraceptives”] will not reduce unintended pregnancy rates.”  She further says the “obsession with [“emergency contraceptives”] as a public health measure to reduce abortion rates” is a distraction from other measures.  Her conclusions are supported by the demonstrable rise in UK abortion rates despite the increased availability and use of “emergency contraceptives.”

In the UK, “emergency contraceptive” use has increased from one percent in 1984 to twelve percent in 2002.  Yet, abortion rates rose from 11 percent in 1984 to 17.8 percent in 2004.

Additionally, Anna Glasier details similar observations in Sweden—increased use of ”emergency contraceptives” does not decrease rate of abortions –  and notes that ten studies in numerous countries—which provided women a supply of “emergency contraceptives” in advance—resulted in an increased use of the drugs by two- to three- fold but had no measurable effect on pregnancy or abortion rates.

More alarmingly, these increases are observable within the teenage population.  A 2005 article in the UK Observer noted that, since the introduction of non-prescription “emergency contraceptives” (in 2000), local authorities had noted an increase in the already high rates of teenage pregnancies.

Related Concerns over Risky Sexual Behavior

The district court minimized any concern that OTC access to “emergency contraceptives” may lead to increased risky sexual behavior, reasoning that “[w]hile it may have been rational for the FDA to consider adolescent cognitive development in its evaluation of Plan B as an OTC drug…the FDA’s focus on these behavioral concerns [i.e. increases in promiscuous and unsafe sexual behavior] stemmed from political pressure rather than permissible health and safety concerns.”    Political pressure—in the court’s opinion—was the only reason the Center for Drug Evaluation and Research (CDER) concluded, as a scientific matter, that Plan B was not safe for OTC use by those under 17.

In the FDA’s letter denying CRR’s 2001 petition, the FDA recognized that teenagers’ sexual behavior is different from that of older women, specifically referencing the CDER studies and findings:

Young adolescence is characterized by more impulsive behavior that is less controlled by balancing risks and benefits. These characteristics may impact decision-making regarding birth control. Risks from inappropriate use of Plan B include: failure to understand that the product is for non-routine use, and routine use would result in a higher than appropriate dose of systemically-absorbed hormone product with possible serious side-effects; failure to understand that Plan B is not a substitute for other forms of birth control that offer protection against sexually transmitted diseases including HIV; and failure to understand the required dosing regimen for Plan B.

Disregarding these important findings as well as increases rates of STDs, unwanted pregnancies, and abortions among “emergency contraceptive” users, the judge inexplicably opined that the FDA inadequately defended the limitations it had placed on Plan B access.

Potential Exposure to Sexual Exploitation and Abuse

In light of the district court’s ruling, will men be increasingly able to exploit minor girls—or even women in general—when Plan B is made accessible to them?  Yet another concern not addressed by the district court is the access men have to Plan B as an OTC drug.  A very plausible outcome of OTC access to Plan B is an increased use of “emergency contraceptives” by sexual perpetrators to hide their crimes and facilitate the sexual abuse of young girls.

Many have expressed concern over older friends, boyfriends, relatives or others coercing young woman into taking ”emergency contraceptives” or giving it to them under false pretenses (i.e. slipping it unknowingly into a drink or misrepresenting it as a multivitamin).  These concerns may seem far-fetched, but evidence from places like India suggests that making Plan B available OTC would serve to further predatory interests of sexual offenders.

FDA Should Factor Public Policy Goals into Its Decisions

The district court failed to acknowledge that the FDA can and does consider public policy and public morality in its decision-making process.  The FDA’s jurisdiction over the “safety and efficacy” of drugs provides it with legal authority to consider morality, misuse, age-appropriate sexual behavior, and related social issues in its approval process.  It is particularly appropriate when considering the risk/benefit analysis or the safety/efficacy profile of a drug such as Plan B.  

Courts typically give deference to the experience and expertise of the FDA.  When approaching an approval decision, the FDA necessarily takes into account evidence that the targeted patient population is likely to use the drug in a way that reduces its safety, impacts the patient’s health negatively, or increases the risk portion of the risk/benefit analysis. 

In this particular case, the FDA expressed science-backed policy and moral considerations throughout the Plan B OTC approval process, but the district court made an unprecedented decision to overrule the FDA’s discretion and insert his and CRR’s ideology.

Potential Impact of the Decision

One district court judge in NY orders the FDA to make Plan B available OTC to 17 year olds and to reconsider making Plan B available OTC to women of all ages.  The impact of this decision could be extensive and damaging.

First, it puts women’s health at risk.  The FDA may “over comply” with the court’s ruling.  It may actually grant the wishes of CRR and family planning advocates to make Plan B accessible OTC for women—and subsequently men—of all ages. 

Second, the ruling sets a precedent for other hormone-based birth control pills to be available OTC since the active ingredient in Plan B is the same as other progesterone-only pills—only at a higher dosage.  It also acts as a solicitation for anyone to file a citizen petition for an OTC switch of other prescription-only contraceptives.

Third, this successful lawsuit likely opens the FDA’s drug approval process to a vast number of future challenges.  The court recognized that any district court may hear a FDA challenge by nearly any interested party.  This case sets a very low threshold for standing and practically renders the FDA drug approval process vulnerable to anyone who may disagree with its policy and risk/benefit analysis. 

Possible State Legislative Responses

If the FDA approves Plan B for all ages, what can states do to limit its harmful effects?  State lawmakers may consider creating a behind-the-counter (BTC) system for Plan B.  A BTC system would: (1) ensure women receive pharmacist counseling before purchase; (2) permit only the ultimate Plan B user to purchase it—effectually prohibiting men from directly purchasing the drug; (3) allow for restrictions on the number of times Plan B may be purchased within a certain period of time; and (4) prohibit purchase by sex offenders.

Conclusion

Plan B is not good for women’s health and should require a prescription with physician counseling, particularly when it involves young women.  The resonating question:  How can you isolate public policy decisions involving science from the public debate of what is right for America and her young women?  Unfortunately, President Obama’s segregation of science from ideology and morality is unrealistic when it involves issues of public policy.  Rather, it is a question of whose ideology and morality will guide our scientific discovery and application.  In this particular case, CRR selected a venue with a district court judge who obviously shared its ideology—one that increases the market share for contraception and abortions, epitomizes the right to sex without consequence, and unnecessarily increases the risk to women’s health.

[1] Geraldine Bedell, Waking up to the Morning After Pill, The Observer, May 15, 2005, available at http://observer.guardian.co.uk/magazine/story/0,11913,1482669,00.html (last visited April 7, 2009).

[2] January W. Payne, Is Plan B Unsafe?  Current Research Does Not Support Fears of Day-After Pill Dangers, Washington Post, September 6, 2005, at HE01.

[3] K. Edgardh, Adolescent Sexual Health in Sweden, Sexually Transmitted Infections, 2002, 78: 352-356.

[4] See Raine, TR, et al, Direct Access to Emergency Contraception Through Pharmacies and Effect on Unintended Pregnancy and STIs, JAMA 2005, 293:54-62, at www.jama.com.27 (last visited April 7, 2009).

By Denise M. Burke
AUL Vice President of Legal Affairs
 

*This is an updated version of a previously posted article.

Over the past six months, abortion advocates and their allies have begun insisting in the media and in communications with supporters that the “Freedom of Choice Act” (FOCA), while “important,” is not an immediate priority and that concerned Americans have overreacted to a piece of legislation that has not even been introduced in the current Congress.  And despite having control of Congress and the Executive Branch, some have even appeared to confess they do not have the support needed for passage.

What are the reasons for this sudden and very public change of tune?  Why—when they have President Obama’s promise to finally enact FOCA, 20 years after it was first proposed—do they appear to be quickly conceding defeat?

This apparent back-pedaling on a long-established priority is a testament to the ferocious opposition engendered by this radical federal power-grab masquerading as common legislation.  However, as history repeatedly shows, abortion advocates’ apparent concessions should be viewed with a great deal of skepticism.  Now more than ever we need to beware of “FOCA-by-Stealth”: attempts by the Administration, Congress, and abortion advocates to enact FOCA piecemeal while purposefully attempting to deflect—or at least neutralize—public opposition to their far-reaching abortion-on-demand agenda.

The Administration and abortion advocates have stolen a page from the successful pro-life playbook of incremental strategy.  However, instead of targeted laws designed to fence in the abortion license and to protect women from the negative impact of abortion, they are using a variety of executive, budgetary, and legislative means to realize their “full vision of reproductive freedom” —code words for unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.

Recognizing an Ally, Abortion Advocates Waste No Time Making Demands

In December 2008 (just one month after the election), a coalition of pro-abortion groups—including Planned Parenthood, NARAL Pro-Choice America, and the American Civil Liberties Union (ACLU)—gave an expansive set of “marching orders” to the Obama Administration.  In a 55-page memorandum subsequently posted on the Obama Transition Team’s website, the coalition urged the incoming Administration to, among other things:

• Rescind the Mexico City Policy first implemented by President Ronald Reagan in 1984 to prohibit federal taxpayer funding of programs and organizations that promote or perform abortions overseas.
• Restore federal taxpayer funding for the United Nations Population Fund (UNFPA), which actively promotes abortion worldwide and is arguably complicit in the continued enforcement of restrictive population control programs and forced abortions.
• Remove U.S. Food and Drug Administration (FDA) restrictions on minors’ access to over-the-counter “emergency contraceptives” (also known as Plan B).  Then-existing FDA protocols required girls under 18 years of age to have a valid prescription for this potentially-dangerous drug.
• Reverse the December 2008 decision by the Department of Health and Human Services (HHS) requiring recipients of certain federal funding certify compliance with existing federal laws protecting healthcare professionals who are morally opposed to promoting or providing abortions or contraceptives.
• Appoint federal judges—including US Supreme Court justices—who support abortion rights and would interpret that “right” in an increasingly expansive and radical manner.
• Increase Title X family planning funding, which provides funding to Planned Parenthood, from $300 million in fiscal year 2009 to at least $700 million in 2010.
• Repeal the Hyde Amendment, which limits federal taxpayer funding for abortions for Medicaid-eligible women.
• Provide federal taxpayer funding of abortions for federal employees and their dependents, members of the Armed Forces and their dependents, residents of the District of Columbia, Peace Corps volunteers, Native American women, and women in federal prisons.
• Increase federal funding of international family planning programs from $461 million in fiscal year 2009 to $1 billion for 2010.

Finally and predictably, the document also specifically called on President Obama to take the lead in calling for Congress to pass the “Freedom of Choice Act” and—as he has already promised—sign it into law once it arrives at his desk.
Each of the demands listed above—and others contained in this controversial and extensive wish list—embody the spirit of FOCA and represent incremental but critical steps toward implementing its radical agenda.  Sadly, the Obama Administration and its allies in Congress have acted quickly to meet and even exceed the demands of abortion activists.  In just its first six months, the new Administration has met many of these demands and already earnestly begun action on the remainder.

How Is FOCA’s Expansive and Radical Agenda Being Implemented?

Despite the increasing backlash against both FOCA and the Administration’s apparent desire to centralize power and authority in the federal government at the expense of the States and the people, abortion advocates within and outside the Administration have not been dissuaded from their goal of unfettered, federal government-controlled, and taxpayer-funded abortion-on-demand.  Instead, they are clearly determined to pursue what they believe is the path of least resistance: FOCA-by-Stealth.

Rather than a direct and possibly losing battle and debate over FOCA as a whole, they are resorting to a strategy of incremental and relentless implementation of the principles, spirit, and intent of FOCA.  In pursuit of this strategy, they are already using a variety of tools including Executive Orders; Executive Branch appointments; federal budget appropriations; federal legislation; action on long-standing budgetary riders; efforts to overhaul the nation’s healthcare system; and even potential Senate ratification of international conventions to advance and fund a radical pro-abortion agenda.

Executive Orders

American Presidents have issued Executive Orders since 1789; most of these orders have set the policies of executive departments or otherwise directed the activities of Executive Branch officials.  Because they are an efficient and effective means for the Administration to unilaterally further its policy goals, Executive Orders have often been controversial.  Only days into his term, President Obama made use of an Executive Order to further FOCA-by-Stealth.

On January 23, 2009—just three days after his inauguration—President Obama signed an Executive Order to repeal the Mexico City Policy prohibiting U.S. taxpayer funding of international family planning programs that promote and perform abortions overseas.  Among the groups denied funding under this former policy was the International Planned Parenthood Federation (IPPF), the parent organization of the Planned Parenthood Federation of America (more commonly known as “Planned Parenthood”).

In a statement released the next day, President Obama blithely ignored the mounting evidence of abortion’s negative impact on women and the fact that this funding is often used by groups such as IPPF to force abortion on unwilling nations and cultures.  Instead, he couched his action in terms of its potential economic impact and his desire to end the “culture war” over abortion, stating:

It is right for us to rescind this policy and restore critical efforts to protect and empower women and promote global economic development.  For too long, international family planning assistance has been used as a political wedge issue, the subject of a back and forth debate that has served only to divide us.  I have no desire to continue this stale and fruitless debate.

This statement is eerily reminiscent of then-Presidential candidate Obama’s speech to the Planned Parenthood Action Fund in July 2007, when he told cheering abortion supporters he remains “absolutely convinced that culture wars are so nineties,” and it is “time to turn the page” since he and other abortion supporters are “tired about arguing about the same ole’ stuff.”

Not coincidentally, in this same speech he also promised “[o]n this fundamental issue [abortion], I will not yield,” and the “first thing” he would do as President was “sign the ‘Freedom of Choice Act’.”

Presidents also often use Executive Orders to appoint or create various groups to advise them on certain policy decisions.  In this vein, on March 11, 2009, President Obama established a new “White House Council on Women and Girls” to “provide a coordinated federal response to the challenges confronted by women and girls and to ensure that all Cabinet and Cabinet-level agencies consider how their policies and programs impact women and families.”  Among its priorities is to “improve women’s health care.”  Given that the Council’s Executive Director is Tina Tchen, former vice-president of the pro-abortion National Organization for Women (NOW), it is safe to assume that the Council’s vision of women’s healthcare will undoubtedly include unfettered access to abortion-on-demand.

Executive Appointments

The President has the responsibility to make a wide range of executive appointments, including Cabinet members, ambassadors, and other Executive Branch officials.  These individuals are charged with implementing the President’s policies on a variety of topics, including abortion and important civil rights such as healthcare freedom of conscience.

Among the appointed positions with a direct impact on abortion-related policies are the Secretary of U.S. Department of Health and Human Services (HHS), the Commissioner of the federal Food and Drug Administration (FDA), and the U.S. Surgeon General. 
On March 1, 2009, President Obama nominated pro-abortion Kansas Governor Kathleen Sebilius to serve as Secretary of HHS.  Confirmed on April 28, 2009, she is now in a position to profoundly influence American healthcare—including federal and state policies regarding abortion, healthcare rights of conscience, bioethics and biotechnologies, and end-of-life issues.
As HHS Secretary, Sebelius will make important policy determinations including:

• Whether to rescind, modify, or retain HHS rules requiring recipients of HHS funding to certify their compliance with existing federal laws protecting healthcare freedom of conscience.  In March 2009, HHS announced its intent to rescind these protective rules and requested public comment on the rules and their implications.
• Whether to rescind approval for or, at a minimum, review the safety and efficacy of RU-486 (“the abortion pill”), which has killed at least 7 women in the U.S. since it was approved by the FDA in September 2000.
• Whether to actively promote further federal funding of abortion-on-demand and contraceptives (including Plan B) as a component of “healthcare reform.”

Sadly, Secretary Sebelius’s extensive public record demonstrates she is an ardent supporter of abortion-on-demand and gives strong indications that she will continue to implement and follow strongly pro-abortion policies during her tenure as HHS Secretary.
In the 1980s and 1990s then-State Representative Sebelius voted to weaken or eliminate even such modest abortion-related measures as parental notification, reflection periods, and informed consent— under U.S. Supreme Court jurisprudence, these are all constitutional measures.
However, her record as Governor of Kansas was—in substantial part—even more extreme in its support for abortion.  She routinely opposed or vetoed abortion-accountability bills, including medically-supported clinic regulation legislation which she vetoed in both 2003 and 2005.  The need for this critical legislation was predicated, in large part, on evidence of shocking conditions in Kansas abortion clinics.  For example, two inspections of the same Topeka abortion clinic discovered fetal remains stored in the same refrigerator as food; a dead rodent in the clinic hallway; overflowing, uncovered disposal bins containing medical waste; unlabeled, pre-drawn syringes with controlled substances in an unlocked refrigerator; improperly labeled and expired medicines; a carpeted floor in a surgical procedure room; and visible dirt and general disarray throughout the clinic. Dr. Krishna Rajanna, who operated the unsafe and unsanitary clinic, also consistently violated practice guidelines for conscious sedation.
In 2008, she vetoed a measure that would have strengthened the state’s existing parental notification law by 1) requiring any adult accompanying a minor show identification, declare in writing his/her relationship to the minor, and identify the putative father of the unborn child; 2) requiring the minor to show some form of photo identification proving identity and place of residence; and 3) if the minor chooses to seek a judicial waiver of the law’s requirements, prohibiting any employee of an abortion provider or clinic from assisting her with the requisite court filings and proceedings.
More shocking is her continuing and unyielding support for late-term abortions, including post-viability abortions.  Between 2006 and 2009, she vetoed measures:

• Requiring explicit and medically-supported reasons for late-term abortions;
• Requiring abortion providers to report the diagnosis or the nature of the condition which necessitated a post-viability abortion;
• Permitting injunctive relief for either a completed or about-to-be-performed illegal late-term abortion; and
• Adding certain prosecutors (in addition to the Attorney General) to investigate and pursue violations of existing restrictions on late-term abortions.

As Governor of Kansas, Secretary Sebelius  also appointed radical abortion supporters to important state positions.  For example, she appointed a former abortion clinic “escort” John Carmichael to the state Human Rights Commission;  however, his name was quietly withdrawn ten months later in May 2008.
She further appointed political supporter and abortionist Howard Ellis to serve on the Kansas State Board of Healing Arts after he surrendered his medical license in Missouri rather than face disciplinary charges.  Ellis resigned under pressure, and two months later he was charged by the Board with attempting to persuade a physician to falsify records.
Unfortunately, Secretary Sebelius is not the only abortion-supporter that President Obama has appointed to an important healthcare policy position within his Administration.
On March 14, 2009, President Obama nominated former New York City health commissioner, Dr. Margaret Hamburg, to head the federal Food and Drug Administration (FDA).  The FDA is “responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.”  It “is also responsible for advancing the public health by helping to speed innovations that make medicines and foods more effective, safer, and more affordable; and helping the public get the accurate, science-based information they need to use medicines and foods to improve their health.”
In direct contradiction of these mandates, one of Dr. Hamburg’s first decisions as FDA Commissioner was to forego an appeal of an adverse decision in Tummino v. Torti, a case in which a federal judge ruled that the FDA must make Plan B (or so-called “emergency contraception”) available over-the-counter to girls under the age of 18, despite a utter lack of evidence showing that the drug is safe for use by minors.
Moreover, in the current Administration, even the Secretary of State is expected to use her office to promote abortion-on-demand.  In the face of increasing threats to U.S. security, Secretary of State Hillary Clinton has inexplicably promised that promoting “reproductive rights” (i.e., abortion-on-demand) will be at the top of the Administration’s international agenda.  On March 30, 2009, Secretary Clinton received Planned Parenthood’s Margaret Sanger Award, named for the organization’s founder, an avowed proponent of race-based eugenics.  In her acceptance speech, Secretary Clinton stated, “reproductive rights . . . will be a key to the foreign policy of the United States” during the Obama Administration and that she was proud President Obama had already repealed the Mexico City Policy.  She also opined that Planned Parenthood is “one of the great exports that America has” and she looks forward to partnering with Planned Parenthood in effectuating President Obama’s foreign policy.
Under President Obama and Secretary Clinton, prominent abortion advocates have been appointed to critical State Department positions. For example, on March 6, 2009, President Obama and Secretary Clinton announced that Melanie Verveer would act as “Ambassador at large for global women’s issues.”  Verveer is the co-founder of Vital Voices, a pro-abortion international women’s organization. 
Further, Harold Koh, the President’s Legal Advisor to the State Department, has long advocated the ratification of the U.N. Convention on the Elimination of Discrimination against Women (CEDAW), an international convention that has been used to force unwilling nations – principally in the developing world – to sanction or embrace abortion-on-demand or face international sanctions or other negative consequences.  Notably, Koh, a former Dean of Yale Law School, is also considered by many as a possible future U.S. Supreme Court nominee.
Department of Justice Appointments

The U.S. Department of Justice (DOJ) is charged with enforcing federal law and ensuring the fair and impartial administration of justice for all Americans.  To effectuate these important tasks, the President appoints the U.S. Attorney General and other senior officials at DOJ, including the Solicitor General and the head of the DOJ’s Office of Legal Counsel.

Importantly, the Solicitor General conducts all litigation on behalf of the United States before the U.S. Supreme Court (USSC) and supervises other federal appellate court litigation directly implicating the interests of the Administration and the American people.  In doing so, the Solicitor General routinely files briefs and presents oral argument in important cases before the USSC, including those involving the constitutionality of abortion-related restrictions and regulations.  Thus, the Solicitor General is in a unique position to support or oppose such restrictions and regulations and to influence the way the USSC views such laws.

Prior to his inauguration, on January 5, 2009, then-President-elect Obama nominated Elena Kagan, then-Dean of Harvard Law School, to serve as Solicitor General.  She was confirmed by the Senate on March 19, 2009.  Ironically, Solicitor General Kagan, by her own admission, has very little litigation experience, but she is a strong abortion rights advocate who, for example, supports the use of taxpayer funding to pay for abortions.

Later, on March 11, 2009, President Obama nominated David Ogden as Deputy Attorney General, essentially Solicitor General’s Kagan’s second-in-command.  Notably, in 1992, Ogden filed an amicus brief on behalf of the American Psychological Association in the landmark abortion case Planned Parenthood v. Casey which was dismissive of abortion’s damaging effects on the psychiatric health of women.

However, President Obama’s selection to head the Office of Legal Counsel (OLC) is even more troubling.  According to DOJ’s website, the OLC:

[P]rovides authoritative legal advice to the President and all the Executive Branch agencies.  The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department . . . The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.

Given their sweeping and critical responsibilities, the head and staff of OLC are supposed to be apolitical and academically disciplined.

President Obama has nominated Dawn Johnsen, a professor of constitutional law from the Maurer School of Law at Indiana University, to serve as the head of OLC.  Prior to her academic career, Johnsen served as a staff counsel fellow with the American Civil Liberties Union (ACLU) and then for five years with the National Abortion Rights Action League (NARAL).
In 1989, as the legal director of NARAL, Johnsen filed an amicus brief in the USSC case, Webster v. Reproductive Health Services, a constitutional challenge to a Missouri law that restricted the use of state taxpayer funds and other state resources for abortions.

In her brief, Johnsen argued that any restrictions making abortion less accessible are tantamount to “involuntary servitude” because they require “a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest [in the life of the unborn.]”  She continued that, in effect, a woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.”  Such “forced pregnancy,” she contended, reduces women to “fetal containers” and violates the Thirteenth Amendment prohibiting slavery.  Fortunately, the USSC gave no credence to these radical and ridiculous arguments.

In 2005, then-Senator Hillary Clinton (D-NY), an avowed abortion supporter, gave a speech calling for policy changes so abortion “[did] not ever have to be exercised or only in very rare circumstances.”  In response, Johnsen alleged that Senator Clinton had taken a “step in the wrong direction” by arguing for such policies.  Instead, Johnsen believes “[p]rogressives must not portray all abortions as tragedies.”

Further, despite USSC decisions upholding the constitutionality of informed consent laws with 24-hour reflection periods, parental involvement laws, and bans on partial-birth abortion, Johnsen opposes them and continues to argue they are not constitutionally permissible.  For example, in a 2006 op-ed opposing Justice Samuel Alito’s confirmation, she argued that opposition to all restrictions on abortion—not just acceptance of Roe v. Wade—should be a litmus test for judicial nominees.  To Johnson, “[t]he notion of legal restrictions as some kind of reasonable ‘compromise’—perhaps to help make abortion ‘safe, legal, and rare’… proves nonsensical.”

Critically, Solicitor General Kagan and Johnsen – if ultimately confirmed by the Senate – will be in positions to argue against the constitutionality of laws regulating or restricting abortion—including those laws the USSC has previously determined to be constitutional and which are supported by a majority of Americans—and to negatively influence the actions and positions of the White House and other Executive Branch departments.

Judicial Appointments

The President has a unique opportunity to influence a variety of legal and policy debates and decisions through his judicial appointments.  He appoints all federal district court and appellate judges, including USSC justices.  By virtue of the lifetime tenure of federal judges, the President can exert this influence long after he leaves office.

For this reason and others, a candidate’s judicial philosophy is typically of significant interest during a Presidential campaign.  During his campaign, President Obama publicly stated he would appoint USSC justices in the mold of Justices Ruth Bader Ginsburg and David Souter, two of the Court’s most ardent abortion rights supporters who, for example, voted to strike down the federal ban on partial-birth abortion.  President Obama further opined he finds himself compelled “to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”

True to his expressed intent to appoint pro-abortion judges who will interpret the American Constitution in light of ever-evolving circumstances and principles rather than the original intent of the Framers, President Obama used his first judicial appointment to select a radically pro-abortion judge for the U.S. Court of Appeals for the 7th Circuit.  On March 17, 2009, the President nominated David Hamilton, a federal district court judge from Indiana, as well as a former Vice President for Litigation and board member of the Indiana branch of the ACLU and a former fundraiser for Association for Community Organizations for Reform Now (ACORN).  Hamilton was first appointed to the federal bench by President Bill Clinton in 1994 even though the American Bar Association (ABA) had given him a “not qualified” rating.

As a federal judge, Hamilton issued multiple rulings over seven years preventing Indiana’s informed consent law—a law that fully complied with the USSC’s requirements for such laws (as set out in the 1992 Planned Parenthood v. Casey decision)—from going into effect.  The Seventh Circuit—the same court to which he is nominated—later reversed him, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”

In response to Hamilton’s nomination, the New York Times opined that Hamilton’s nomination was meant to send a signal as to the types of judges President Obama would appoint.  Thus, it is clear President Obama will appoint hard-core abortion proponents—judges who will read the spirit and intent of FOCA into the U.S. Constitution and invalidate medically-supported and common-sense regulations or restrictions on the abortion license—to the federal bench and to the US Supreme Court.

President Obama’s first nomination to the Supreme Court validates this fear.  Judge Sonia Sotomayor’s record on abortion strongly suggests that she will be even more extreme on the issue than Justice David Souter, who she has been nominated to replace.  For example, while Judge Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), it filed amicus briefs with the Supreme Court

• That, in essence, called upon the Supreme Court to read the “Freedom of Choice Act” (FOCA) into the Constitution, protecting abortion as a fundamental right and applying the most stringent level of judicial review – known as “strict scrutiny” — to strike down common-sense abortion regulations and restrictions supported by the vast majority of Americans such as informed consent, parental involvement, and bans on partial-birth abortions.
• That urged the Supreme Court to strike down a Missouri law requiring viability testing before certain abortions — calling such testing “useless and expensive.”
• That declared that it “oppose[d] any efforts to . . . in any way restrict the rights recognized in Roe v. Wade;” compared abortion to the specifically-enumerated, First Amendment right to free speech, and argued that any “burden” on the right to abortion was unconstitutional.
• That characterized informed consent requirements as “intrusive,” “distorted,” and “designed to frighten women from obtaining abortions.”
• That argued that all “medically necessary” abortions (essentially, code words for abortion-on-demand) must be publicly funded and that failure to do so was “discriminat[ory]” and a violation of constitutional equal protection guarantees.

President Obama has also appointed advisors who can be expected to ensure radical choices for the judiciary.  For example, on March 12, 2009,  President Obama nominated Ronald Weich as Assistant Attorney General for the Office of Legislative Affairs.  This position is responsible for advising the President on the selection and successful nomination of federal judges.  During the Bush Administration, testifying before Congress about the “Unborn Victims of Violence Act,” which passed Congress with large bipartisan majorities, Weich said that the Act was “just one more step in the anti-abortion movement’s methodical strategy to humanize fetuses, marginalize women, demonize abortion providers, and make the image of abortion less palatable to the American people.”
Federal Spending and Other Budgetary Measures

A deep economic recession, burgeoning federal deficits, and budget cutbacks in critical areas such as national defense are not dissuading abortion advocates from demanding increased taxpayer funding for their radical abortion-on-demand agenda.  Unfortunately, Congress and the Administration are more than happy to comply.

On March 11, 2009, President Obama signed the fiscal 2009 Omnibus spending measure.  This $410 billion measure needed to keep the federal government functioning through September 2009 also included significant distributions of U.S. taxpayer dollars to international family planning programs—programs that often promote abortion and sterilization as effective and acceptable means of family planning.
First, the measure allocated $50 million to the United Nations Population Fund (UNFPA) for its work in more than 150 countries around the world.  The UNFPA’s stated mission is to promote the right of every woman, man, and child to enjoy a life of health and equal opportunity.  UNFPA claims to support countries in “using population data for policies and programs to reduce poverty and to ensure that every pregnancy is wanted, every birth is safe, every young person is free of HIV/AIDS, and every girl and woman is treated with dignity and respect.”  However, UNFPA is on record arguing that abortion is an appropriate solution to child poverty and has also been complicit in brutal population control programs in China, North Korea, and elsewhere that include forced abortions, forced sterilizations, and other human rights abuses.
Further, the spending measure provided $545 million for a variety of bilateral and multilateral family planning and “reproductive health” [i.e., abortion-promoting] programs worldwide.  This allocation is $82 million over 2008 funding levels and a 66 percent increase over the budget request made by the outgoing Bush Administration.

Not surprisingly, officials from the United Nations and other international family planning groups welcomed the new Administration’s support.  For example, Tod Preston, Vice President for U.S. Government Affairs at Population Action International, an American-based group supporting population control efforts, enthused that the new Administration’s actions “represent[ed] the last vestiges of a failed effort by the previous administration to decimate U.S. family planning and reproductive health programs.”

During the Congressional debate over this measure, the Senate rejected (by a vote of 38 to 55) Senator Roger Wicker’s (R-MS) attempt to protect US taxpayers from funding coercive abortions through UNFPA.  The Wicker Amendment would have restored the Kemp-Kasten Amendment, which has been in place since 1985 and which denies federal funding to organizations or programs the President determines support or participate in a program of coercive abortion or involuntary sterilization.

Action on Budgetary Riders

The repeal of established provisions and policies prohibiting or limiting federal funding of abortion is a top priority of pro-abortion groups like Planned Parenthood.  Often called “pro-life riders,” abortion advocates want Congress to eliminate these provisions and policies and quickly authorize the use of taxpayer dollars to pay for abortion-on-demand.

Appropriations provisions or riders prohibiting or limiting the use of taxpayer funding for abortion and contraception are already under attack and many remain vulnerable.  Importantly, these riders are not permanent law and must be regularly renewed by Congress to remain in effect.

Congress has already rendered the Kemp-Kasten Amendment, prohibiting U.S. taxpayer funding of programs that include coercive abortions, impotent (by the passage of the fiscal 2009 Omnibus spending measure).  Later, in June 2009, Congress began debating the Obama Administration’s proposal to use taxpayer funding to pay for abortions in the District of Columbia, invalidating the long-standing Dornan Amendment that prohibit such practices.  Clearly, negative action on additional riders like the Hyde Amendment, the Hyde-Weldon Amendment, and others is not far behind.

The Hyde Amendment, first enacted in 1976, prohibits Medicaid and any other federal program from funding abortions except in cases of rape or incest, or to save the mother’s life.  Meanwhile, the Hyde-Weldon Amendment, first enacted in 2004, protects the freedom of conscience of healthcare providers by prohibiting programs that receive federal funds from discriminating against healthcare providers who refuse to provide, pay for, provide coverage for, or refer for abortions.  Notably, both of these important riders have survived multiple court challenges and been deemed constitutional.  However, pro-abortion groups are actively lobbying for their repeal and, unfortunately, Congress and the White House are likely to comply.

Federal Legislation

Members of the 111th Congress have already introduced at least 14 measures relating to abortion and family planning services.  Nine of these measures are demonstrably pro-life, while five would provide expanded funding for “comprehensive family planning services” (including abortion) and are likely to result in an increased taxpayer-provided income stream for groups like Planned Parenthood.

Interestingly, the White House, Congressional leaders, and the media are expressing the most positive interest and attention to measures that would increase taxpayer funding of groups like Planned Parenthood.  The most notable of these measures is the “Prevention First Act” (S. 22 and H.R. 463) sponsored by Senate Majority Harry Reid and nearly 150 other members of Congress and championed by Planned Parenthood.  The “Prevention First Act” has several key components:

• Making Title X of the “Health and Human Services Act” a permanent program and providing it with at least $700 million in taxpayer funding each year.  Since its inception in 1970, Title X has been a major funding source for Planned Parenthood.  However, like many pro-life appropriations riders, Title X is not currently a permanent program and must be reauthorized every year.  Under the “Prevention First Act,” Planned Parenthood stands to more than double the taxpayer funding it currently receives under Title X.
• Mandating health insurance plans covering prescription drugs also cover contraceptives.  There are no exemptions for religious employers or others with conscientious objections to contraception.
• Creating an educational program to promote “emergency contraception.”  Notably, Planned Parenthood and its affiliates are major distributors of “emergency contraception,” often selling it at a significant mark-up.
• Removing federal funding from hospitals that fail to provide “emergency contraception” to sexual assault victims.  Again, there are no exemptions for Catholic or other religiously-affiliated hospitals.

Efforts to Reform the Healthcare System

President Obama has consistently maintained that a complete overhaul of the nation’s healthcare system is one of his top priorities.  He has already taken steps to bring about his expansive vision of universal healthcare coverage, including comprehensive abortion and family planning services funded by taxpayer dollars.

On March 5, 2009, President Obama hosted the White House Health Care Summit, purporting to bring together 150 healthcare leaders, including key members of his Cabinet, White House staffers, members of Congress, and others to discuss how to reform the nation’s healthcare system.  Among those invited to participate was Cecile Richards, President of Planned Parenthood, along with other abortion supporters.  Notably, the President asked no pro-life healthcare group to participate.

During the Summit, Richards opined that healthcare reform must ensure women have “access to comprehensive family planning and reproductive healthcare”—more code words for unrestricted and unregulated abortion-on-demand.  She also promoted universal healthcare including abortion services funded by taxpayer dollars.  Notably, this was not Richards’ first opportunity to expound on her vision of comprehensive, taxpayer-funded “reproductive healthcare.”  In August 2008, she addressed the Platform Committee of Democratic National Committee, then-chaired by Janet Napolitano, now a member of President Obama’s Cabinet.

Interestingly, as the debate over healthcare reform has begun in earnest, pro-abortion groups like Planned Parenthood and NARAL Pro-Choice America have become alarmed over any suggestion that government healthcare programs might not include expansive and generous coverage for “reproductive healthcare” including unfettered abortion-on-demand and have aggressively urged their supporters to contact Congress demanding such coverage.

Potential Ratification of International Conventions & Treaties
The U.S. Constitution gives the Senate power to ratify international treaties and conventions and make them binding on American law and citizens.  They may ratify treaties and conventions with or without “reservations”: unilateral statements purporting to exclude or modify the legal obligations of the treaty or convention and its effects on the reserving nation or government.
In recent years, a variety of international conventions—many of them originating with the United Nations—have been developed and have as their stated or implied purpose the expansion of abortion rights and the repeal of laws regulating or limiting abortion.  To date, the U.S. has not ratified any of these conventions, but Americans cannot underestimate the negative impact of potential ratification.
In February 2009, Senator Barbara Boxer (D-CA)—a vocal supporter of abortion-on-demand—promised to call on Secretary of State Hillary Clinton and the U.S. State Department to complete their review of the U.N. Convention on the Rights of the Child (UNCRC) and transmit it to the Senate for immediate ratification.
If ratified, this international convention could severely undermine parents and their inherent right and responsibility to care for and raise their children without unneeded governmental oversight and interference.  It would also directly undermine U.S. sovereignty and the enforceability of American laws, subjecting U.S. citizens and American laws to the administrative oversight—and even veto power—of the United Nations and its unelected bureaucrats.
A fundamental presumption of UNCRC is that parental responsibility exists only insofar as parents are willing to further the independent choices of their children.  To advance the convention’s purposes—seeking to make children (even young children) autonomous from their parents and arguably supplanting parents with the State—the convention grants to children a list of inviolable and radical rights including “the right to privacy,” “the right to freedom of thought and association,” and “the right to freedom of expression.”
Specifically, the Convention’s right to privacy provisions could be used to undermine and eliminate laws mandating parental involvement in a minor daughter’s abortion decision.  Article 16 of the convention purports to invest a minor with an absolute right to privacy, which, in light of the U.N.’s historic support for unfettered abortion-on-demand, would necessarily permit a minor to obtain an abortion without the benefit of parental involvement and even without her parents ever knowing about the abortion.  Article 19 of the Convention permits the “identification, reporting, referral, investigation, treatment, and follow-up” of those—including parents—who interfere with a child’s fundamental rights, including the right to privacy.
UNCRC is not the only international convention yet to be ratified by the Senate that embodies the spirit of FOCA and implements key components of its radical abortion-on-demand agenda.  Abortion advocates and their allies have long agitated for the ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
CEDAW was signed by President Jimmy Carter in 1980, but it has never been ratified by the Senate.  Notably, while the word “abortion” does not appear in the actual text, Article 12 of CEDAW asserts that ratifying nations “shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”  Many official bodies—both inside and outside the U.N.—interpret this Article and other related provisions to condemn all limitations or restrictions on abortion as per se discrimination against women.
In practice, U.N committees and bureaucrats have consistently used CEDAW as the basis for criticizing member nations and pressuring them to weaken or repeal laws restricting abortion, to provide public funding of abortion, and to even eliminate laws protecting the conscience rights of healthcare providers who decline to participate in abortions.
Not surprisingly, support for CEDAW is strong and widespread among abortion advocates.  For example, the Center for Reproductive Rights (CRR), a New York-based group dedicated to using “the law to advance reproductive freedom as a fundamental human right that all governments are legally obligated to protect, respect, and fulfill,” has consistently called for the ratification of CEDAW with “no reservations” so that its spirit and intent could be fully implemented in the U.S.  Notably, CRR actively opposes any limits or restrictions on abortion and regularly files federal and state lawsuits seeking to derail laws regulating abortion.
Moreover, CRR and other abortion advocates routinely argue that CEDAW cements abortion as a fundamental human right and mandates unfettered abortion-on-demand in the U.S. and elsewhere.  For example, in their 2001 lawsuit in federal district court seeking to strike down the Mexico City Policy, CRR cited U.N. conventions and customary international law as support for the bold assertion that “abortion is the law of the world.”
Clearly, with abortion supporters currently in control of the Senate, the ratification of UNCRC, CEDAW, and international conventions promoting abortion-on-demand is a distinct and troubling possibility—one that would effectively usher in an era of unregulated and unrestricted abortion in America and invalidate any federal or state limitation on or common-sense regulation of abortion.
Conclusion

Recently, Rep. Jerrold Nadler (D-NY), a chief Congressional proponent of FOCA, promised that FOCA would be introduced in the 111th Congress “sooner rather than later,” but he did not elaborate on specific plans for its introduction and debate.  However, it is clear from the actions of the Obama Administration, Congress, and their pro-abortion allies that a campaign to implement FOCA-by-Stealth is already well underway.  If we are to effectively counter this radical agenda, we must remain vigilant and continue to speak out against any legislation, policy, or action by the Administration or Congress that furthers the spirit of FOCA and its radical vision of an America (and a world) of unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.

The Administration, Congress, and abortion advocates are counting on the economy and other pressing issues to divert the attention of the American people so they can surreptitiously and with little resistance advance their radical pro-abortion agenda.  We cannot afford them success.  Future generations are literally counting on us to remain motivated and vigilant against this discretely and stealthily advancing culture of death.

By Rebecca Mastee
AUL Spring 2009 Extern
 

Supporters of the federal Freedom of Choice Act (FOCA) often argue that its enactment will not lead to an increase in the nation’s abortion rate and that FOCA and related measures to encourage contraception and comprehensive sex education will actually reduce the nation’s already declining abortion rate.  But, is there any evidence to support these politically-motivated assertions?

When we look closely that the experience of a small handful of states that have enacted state versions of FOCA – laws providing for and promoting unrestricted and under-regulated abortion on demand – we see that state FOCA’s have actually resulted in higher abortion rates in those states despite years of steady decline in the national abortion rate.

To date, seven states have already enacted laws creating fundamental state rights to abortion, often on par with the right to free speech and the right to vote.  These laws guarantee this “right” even when Roe v. Wade is ultimately overturned.  The states that have enacted FOCA’s are California , Connecticut , Hawaii , Maine , Maryland , Nevada , and Washington .[1] Moreover, in 2009, at least 3 states, Illinois , Minnesota , and New Mexico , have considered similar laws.

According to the Guttmacher Institute – long-known as the “research arm” of Planned Parenthood – Maine , Maryland , and Nevada have all consistently maintained abortion rates above the national rate since enacting state versions of FOCA.  For example, Maine’s FOCA was first enacted in 1979 and was later amended in 1993.  Yet from 1995 to 2005, the abortion rate in Maine increased by 7 percent.

Moreover, Maryland enacted a FOCA in 1991, which is similar to the most recently-proposed federal version:

[T]he State may not interfere with the decision of a woman to terminate a pregnancy:
   (1) Before the fetus is viable; or
   (2) At any time during the woman’s pregnancy, if:
      (i) The termination procedure is necessary to protect the life or health
          of the woman; or
      (ii) The fetus is affected by genetic defect or serious deformity or   
          abnormality.[2]

Although this law contains relatively few words, it provides for much, because the interpretation of a woman’s “health” within in the context of abortion is very broadly construed to include not only physical health, but also emotional and psychological health, to be decided according to an individual abortion provider’s unlimited discretion.[3]  When this law went into effect, Maryland ’s abortion rate was already 4.56 percent higher than the national rate.  With FOCA in place, Maryland ’s abortion rate continued to climb, so much so that in 2005, the abortion rate in Maryland was 62 percent higher than the national rate. 

Source: Guttmacher Institute

Unfortunately, as a result of FOCA, the increased abortion rates in Maine and Maryland are not anomalies.  Both Connecticut and Nevada enacted FOCA’s in 1990.  In Nevada ,  from 1991 through 2005, the annual abortion rate in Nevada was 39 percent or more above the national rate.  The results in Connecticut have been similar.  From 2000 to 2005, Connecticut ’s abortion rate increased by 10.8 percent, bringing it to 21.6 percent higher than the national abortion rate for the same time period.

 Source: Guttmacher Institute

Further, these inevitable increases in state abortion rates also correlate strongly to increased risks to and negative impact on women.  Simply, abortion hurts women.  Although state FOCA’s are guised as promoting women’s health, the short-term, negative medical impact on women resulting from abortion are numerous and include hemorrhages, infections, uterine perforation, blood clots, cervical tears, incomplete abortion (retained tissue), cardiac arrest, respiratory arrest, and even death.[4]  Later-term abortions have even greater risks and are more likely to require a hysterectomy, reparative surgery, or a blood transfusion.[5]

In addition to the immediate medical risks, abortion also has negative psychological and other long-term medical effects.  After abortion, many women develop emotional problems and encounter future fertility issues.[6]  Abortion also increases a woman’s likelihood of developing breast cancer.[7] Depending on the demographic, this likelihood of developing breast cancer could be 30 percent, 50 percent, or even 100 percent higher for post-abortive women.[8]   

Having knowledge of the negative medical consequences of abortion would seemingly encourage legislators to consider promoting alternatives to abortion.  Unfortunately this is not the case, and in some instances alternatives to abortion are subjected to increased hostility and negative scrutiny.  For example, California and Maryland have both targeted pregnancy care centers (sometimes known as “crisis pregnancy centers”) – which offer women positive alternatives for unplanned pregnancies – for hostile and unnecessary regulation and oversight in an attempt to close them down and eliminate “competition” for abortion centers.[9]

In addition to the lack of support for abortion alternatives, states with FOCA also maintain other laws and promote other programs that are detrimental to women.  A focus on abortion and increased funding for abortion services leads to a corresponding decrease in availability and quality of prenatal care, as well as a decline in adoption rates. 

Just this year, the Maryland Senate voted to kill Senate Bill 195, which would have required state abortion facilities in Maryland already in possession of ultrasound equipment, to offer women an opportunity to view an ultrasound, receive a copy of the image, or listen to the child’s heartbeat, before having an abortion.[10]  The failure of this measure is not surprising in a state which prioritizes abortion through public funding.  In 1994 (after Maryland had banned state funding of abortions every year since 1981), the Maryland Senate voted to override this ban and added comprehensive abortion funding to their state budget.[11]  State funding for abortion was supported by the misguided rationale “that paying for abortions is cheaper than maintaining a child on welfare.”[12]

This dangerous, anti-child mentality has a negative impact on many aspects of society, including maternal health and support for adoption.  For example, Maryland seems to be failing in its goal “to improve the health status of Marylanders and their families by assuring the provision of quality primary, preventive and specialty care services.”[13]  Despite a goal to ensure that (by 2010) 90 percent of pregnant women receive prenatal care in their first trimester, the number of women actually receiving such care is in steady decline.  In 2002, it was reported that only 84 percent of pregnant women received care,[14] and by 2007 the number declined further to 79.5 percent.[15] 

Moreover, the number of children adopted through public agencies in Maryland has also dramatically declined, from 949 adoptions in 2002 to only 620 in 2005.[16] All the while, the state’s abortion rate has been increasing.

Connecticut has also experienced a declining adoption rate.  Not only are there fewer adoptions, but this state’s child population decreased by 0.4 percent, from 837,964 children under the age of 18 years in 2002 to only 835,006 in 2005.[17]  Reduction in  the child population — a devastating consequence of how a society views children — will have a significant future economic impact.  Many economists and demographers assert that, in the near future, younger generations – because of their abortion-reduced size — will be incapable of caring for and economically supporting more populous older generations.

A number of factors impact both national and state abortion rates including abortion-related federal and state legislation.  Where states have implemented FOCA’s, laws which would place restrictions or regulations on abortion are minimal, or even non-existent:[18] 

Notably, California has no restriction on public funding of abortion and even provides funds for “all or most medically necessary abortions.”[19]  It does not ban partial-birth abortion, nor does it mandate a reflection period or any informed consent counseling on the risks associated with abortion.[20]  With few protective measures in place, Americans United for Life has ranked California as the worst state in the nation for life-affirming laws and policies.[21]

Washington voters approved the state’s FOCA in 1991.  Since that time, Washington has failed to enact any meaningful regulation of abortion.  For example, Initiative 694, a partial-birth abortion ban, was on the ballot in November 1998.[22]  However, the measure failed, 57 percent to 43 percent.[23]  Moreover, Washington is one of only 13 states that do not even require that abortions be performed only by licensed physicians.[24]  It provides public funding for abortions if women are receiving state Medicaid assistance, yet requires no mandated counseling, a reflection period, nor parental involvement.[25]  Although legislation to establish parental notification requirements for abortions has been repeatedly introduced in the Washington legislature, it has yet to pass.[26] 

Clearly, state FOCA’s result in fewer meaningful and protective regulations on abortion, increased taxpayer funding for abortions, increased dangers for women, and increased abortion rates.  To effectively decrease the numbers of abortions, laws regulating and, in some instances, restricting abortion are the real key. 

Dr. Michael J. New, an assistant professor of political science at the University of Alabama and formerly with the Harvard-MIT Data Center, has shown that “[t]he states with the most active pro-life laws have seen the biggest abortion declines.”[27]  His research has shown that “enacted (pro-life) legislation results in statistically significant reductions in abortion rates and ratios.”[28]  It is “evidence that state pro-life legislation has been effective in reducing the number of abortions in a given state.”[29] 

His findings are consistent with Center for Disease Control (CDC) data as well.  The CDC attributes an overall decline in the abortion ratio, which occurred across the nation from 1995 to 2000, to a variety of factors, but admits that one of these relevant factors is “reduced or limited access to abortion services, including the passage of abortion laws that affect adolescents (e.g., parental consent or notification laws and mandatory waiting periods).”[30] 

This is what works.  To decrease abortions, limits need to be imposed and the protective legislation advanced by pro-life groups like Americans United for Life is what is truly needed.

[1] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/state-foca-map.

[2] Abortion Procedures, Maryland Health-General Code Ann. § 20-209 (2008).

[3] Doe v. Bolton, 410 U.S. 179, 192 (1973).

[4] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/abortion-clinic-regulations-combating-the-“true-back-alley”.

[5] Id.

[6] Id.   

[7] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/appendix/true-breast-cancer-awareness-informing-women-of-the-abortion-breast-cancer-link.

[8] Id.

[9] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/pregnancy-care-centers-on-the-frontline-in-the-cause-for-life.

[10] Senate Bill 195, Maryland General Assembly 2009, available at http://www.mdrtl.org/files/sb0195f-1.pdf.

[11] Janet Naylor , Maryland Senate Backs Medicaid Abortions, The Washington Times, March 25, 1994.

[12] Id.

[13] Maryland Department of Health and Mental Hygiene, State Budget FY2006 Operating Budget Detail, available at http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_search/budget/toc_fy2006_operating_budget_detail/hlthhosp.pdf.

[14] Id.

[15] Maryland Department of Health and Mental Hygiene, State Budget FY2010 Operating Budget Detail, available at http://dbm.maryland.gov/dbm_publishing/public_content/dbm_search/budget/fy2010operbuddetail/hlthhosp.pdf.

[16] Child Welfare League of America National Data Analysis System, State Data Trends for Maryland , 2008, available at http://ndas.cwla.org/data_stats/states/Data_Trends/Maryland%20State%20Data%20Trends.pdf.

[17] Child Welfare League of America National Data Analysis System, State Data Trends for Connecticut , 2008, available at http://ndas.cwla.org/data_stats/states/Data_Trends/Connecticut%20State%20Data%20Trends.pdf.

[18] Compiled using data from the following sources: Americans United for Life, Defending Life 2009, available at http://dl.aul.org/ and Guttmacher Institute, State Policies in Brief: An Overview of Abortion Laws, March 2009, available at http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf.

[19] Id.   

[20] Id.

[21] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/your-state.

[22] Washington Secretary of State News Release, Initiative #694 Gains Spot on November Ballot, July 27, 1998, available at http://www.secstate.wa.gov/office/osos_news.aspx?i=DCOBXgku1jV5DJH2KjJ5dA%3D%3D.

[23] Washington 1998 Initiative General Election Results, available at http://uselectionatlas.org/RESULTS/state.php?fips=53&year=1998&f=0&off=62&elect=0.

[24] Supra, note 19.

[25] Id.

[26] E.g. House Bill (2007), Washington State Legislature 2007, available at http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1321&year=2007.

[27] Rob Stein, Study Finds Major Shift in Abortion Demographics, The Washington Post, September 23, 2008, page A03, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/09/22/AR2008092202831.html?hpid=moreheadlines.

[28] Michael J. New, Using Natural Experiments to Analyze the Impact of State Legislation on the Incidence of Abortion, January 23, 2006, available at http://www.heritage.org/Research/Family/cda06-01.cfm.

[29] Id.

[30] CDC, Abortion Surveillance – United States , 2005, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5713a1.htm.

By Daniel Briggs
AUL Legal Extern
 

The Kemp-Kasten provision of 1985 allows the President to withhold funds from any organization that “supports or participates in the management of a program of coercive abortion or involuntary sterilization.”  Through this provision Presidents Reagan, George H.W. Bush, and George W. Bush have withheld funds from UNFPA, the United Nations Population Fund.

“This ability to withhold funds is significant,” writes AUL Staff Counsel Mailee Smith, particularly given the group’s “deep-seeded support of abortion and China ’s one-child policy.”[4]  UNFPA’s support of population control has been documented by the State Department.  In 2002, then-Secretary of State Colin Powell returned from a fact-finding mission in China , where he and his team found that China

has in place a regime of severe penalties on women who have unapproved births. This regime plainly operates to coerce pregnant women to have abortions . . . UNFPA’s support of, and involvement in, China’s population-planning activities allows the Chinese government to implement more effectively its program of coercive abortion.  Therefore, it is not permissible to continue funding UNFPA at this time.[5] 

Because China ’s activities squarely meet the activity prohibited by the Kemp-Kasten provision, President Bush blocked funding to the UNFPA for seven consecutive years, amounting to $34 million per year or $235 million in all.[6]  However, in 2008 the United States still provided over $1.83 billion to the USAID Global Health and Child Survival account; in addition, the federal government provided $457 million during that time for reproductive health care, including family planning.[7]

President’s Legal Authority

The Foreign Operations, Export Financing and Related Programs Appropriations Act provides that “[n]one of the funds available in this Act . . . may be made available to any organization or program which, as determined by the President of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.”[8]    

Impact of Reinstatement of UNFPA Funding

On March 11, 2009, President Obama reinstated UNFPA funding by signing the fiscal 2008 Omnibus spending measure.  As a result, millions of American tax dollars will now go towards population control initiatives that include forced abortions and sterilizations in China and perhaps other nations. The UNFPA is committed to “changing deeply rooted attitudes, behaviors and laws—especially those dealing with . . . reproductive health.”[9] With Obama’s blessing, millions of taxpayer dollars will be provided in support and furtherance of that commitment.

[5] Republican Study Committee, Amendments Made in Order under the Rule (H.Res. 316) for the Foreign Relations Authorization Act (H.R. 1950), dated July 15, 2003 (quoting letter from Secretary of State Colin Powell to Sen. Byrd, dated 21 July 2002), available online at http://www.house.gov/hensarling/rsc/doc/LB71503a.pdf (last visited 12 January 2009).

[6] Larry Nowels and Connie Veillette, “International Population Assistance and Family Planning Programs: Issues for Congress,” CRS Report for Congress, 26 January 2006, available online at http://fpc.state.gov/documents/organization/60573.pdf (last visited: 15 January 2009).

[7] U.S. State Department Press Release, “Fiscal Year 2008 Funding for the United Nations Population Fund,” 27 June 2008, available online at http://www.state.gov/r/pa/prs/ps/2008/jun/106348.htm (last visited 15 January 2009).

[8] PL 109-102, 119 Stat. 2175, 14 November 2005, available online at http://clinton.senate.gov/features/darfur/documents/2005.11.14_Foreign_Ops_Approps.pdf (last visited: 15 January 2009).

[9] United Nations Population Fund (UNFPA), “About the United Nations Population Fund,” available online at http://www.unfpa.org/about/index.htm (last visited: 12 January 2009).

By Osayi Osar-Empokae
2008 Blackstone Fellow
 

Abortion has been one of the most controversial and important issues of the last few generations. Even before Roe v. Wade was decided in January 1973, there was proposed federal legislation to legalize abortion in the United States. For example in 1970, Sen. Bob Packwood (R-OR) introduced the National Abortion Act, which would have legalized abortion nationwide and superseded inconsistent state laws.[1] Although the National Abortion Act was unsuccessful, Sen. Packwood later joined with Sen. Alan Cranston (D-CA), to introduce the Senate-version of the Freedom of Choice Act (FOCA) in 1989.[2]

FOCA was first introduced at a time when some in Congress feared that Roe v. Wade might imminently be overturned (as a result of on-going federal litigation over abortion-related laws and restrictions), and were seeking a means to prevent states from enacting laws prohibiting or restricting abortion. FOCA’s main goal was to create a fundamental right to abortion for all women, which would criminalize any government action that limited, or impeded access to this newly-created fundamental right.  In Roe, the U.S. Supreme Court (USSC) held that a woman’s right to an abortion was protected under the right to privacy in the Fourteenth Amendment. The Court further held that a woman had a virtually absolute right to an abortion during the first trimester of her pregnancy, but that the states could regulate to ensure the procedure’s safety.  Further, the state maintained an interest in protecting the unborn later in pregnancy and could enact laws protecting the unborn and restricting abortion in the second and third trimesters.

Relying on particular portions  – both specific holdings and dicta — of the USSC’s decision in Roe, abortion supporters proposed FOCA, stating that it would protect a woman’s right to an abortion prior to “fetal viability or at any time…to protect the life or health of the woman.”  The inaugural 1989 version of FOCA purportedly attempted to codify Roe, by including a section permitting states to “impose requirements medically necessary to protect the life or health of the woman.” Under this version, states could enact protective laws that did not interfere with a woman’s right to abortion, but served instead to improve abortion-health conditions.

Over the next few years, FOCA was repeatedly reintroduced substantively unchanged, until 1993, where the section providing for “medically necessary” regulations was removed. This subsequent version included new sections for findings, purpose of the act, and rules of construction, while simultaneously criticizing the progression from the “strict scrutiny standard” to the “undue burden” standard for reviewing abortion-related laws, first announced in Planned Parenthood v. Casey.[3] Under the undue burden standard, requirements such as informed consent with reflection periods and parental involvement laws are constitutional because only restrictions that unduly burden a woman’s ability to choose an abortion were viewed as unconstitutional.

After its introduction in 1995, FOCA was not reintroduced again until 2004 when Rep. Jerrold Nadler (D-NY) and Sen. Barbara Boxer (D-CA) introduced it. In her press release in 2004, Sen. Boxer explained that FOCA would “supersede all other abortion related laws, regulations or local ordinances[4],” which included informed consent laws and all abortion clinic regulations.

The most recent version of FOCA, introduced in 2007 was substantially similar to the one considered in 2004. However, some major differences include a new section criticizing the USSC and its April 2007 decision in Gonzalez v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 which prohibited the use of the partial-birth abortion (or “D&X”) method of abortion and did not provide for a medical emergency exception.

Instead of highlighting the Court’s decision to abolish this medically unnecessary and inefficient abortive method, the 2007 FOCA misrepresented the prohibition as a “legal and practical” barrier that hindered “the ability of women to participate in the economic and social life of the Nation.”[5] It also used misinformation to further its point by exaggerating the less than one-hundred thousand people who participated in illegal abortions between the late 1800’s and early 1900’s, alleging instead that there over one million illegal abortions before Roe.[6]

Although the 2007 FOCA stated that the codification of Roe was its objective, it also stated that FOCA would apply “to every Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action enacted, adopted, or implemented before, on, or after the date of enactment.”[7] As Sen. Boxer eloquently explained in 2004, “FOCA would supersede all other laws,” especially those that the Supreme Court has held to be constitutional under Roe.[8]

FOCA has yet to be reintroduced in the 111^th Congress which convened in January 2009.  However, one of its chief proponents, Rep. Jerrold Nadler, has promised that it will be introduced “sooner rather than later” and President Obama has promised his Administration’s support for this radical legislation.

[1] Johnsen, Dawn E., Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning? Law and Contemporary Problems, Supra note 152, available at: http://www.law.duke.edu/shell/cite.pl?67+Law+&+Contemp.+Probs.+105+(summer+2004) (Last visited July 21, 2008).

[2] See S. 1912, 101^st Cong. (1989); H.R. 3700, 101^st Cong. (1989).

[3] See S. 25, 103d Cong. (1993); H.R. 1068, 103d Cong. (1993).

[4]National Right to Life, Senator Barbara Boxer 2004 Press release, available at: http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf, (Last visited July 21, 2008).

[5] See S. 1173, 110^th Cong. (2007); H. R. 1964, 110^th Cong. (2007).

[6] Nathanson, Bernard. (PHD), Confessions of an Ex-Abortionist, available at: http://www.aboutabortions.com/Confess.html (Last visited July 21, 2008).

[7] See S. 1173, 110^th Cong. (2007); H. R. 1964, 110^th Cong. (2007).

[8] http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf (Last visited July 21, 2008).

By Rebecca Mastee
AUL Spring 2009 Extern
 

Consider Elizabeth, a twelve year old girl living in Pennsylvania, a state which has enacted a number of common-sense and protective regulations on abortion.  With parental consent and other requirements within her state, one would believe that Elizabeth is protected from the dangers inherent in abortion.  However, if the United Nations Convention on the Rights of the Child is ratified, under international law, these protections would be imperiled.  Elizabeth’s parents would no longer be able to protect her.  They would not be permitted to inculcate her with their moral and religious beliefs regarding sexuality; instead, she would be encouraged to make her own “choice” after being exposed to mass media, popular culture, and instructional programs allegedly designed to promote her social and moral well-being.  If she were to consider an abortion, her parents would not be entitled to receive any information about it because to do so would violate her “right to privacy.”  Moreover, unfettered and direct access to contraception — without the “inconvenience” of involving her parents — would also be her “right.” Thus, it is not surprising that Senator Barbara Boxer (D-CA), who also sponsored the Freedom of Choice Act (FOCA) and other extreme abortion-related measures, recently stated she will call upon Secretary of State Hillary Clinton to review the United Nations Convention on the Rights of the Child (UNCRC) and recommend it to the Senate for ratification.  She wants the review completed by early April.  Senator Boxer claims that UNCRC is needed to protect “the most vulnerable people of society.”  Yet although the convention originated 20 years ago, the United States has never before found it necessary to ratify it or to implement its vague standards into American law. 

Under Article VI of the United States Constitution, all treaties made “shall be the supreme Law of the Land.” Therefore, ratification of the UNCRC will make the document binding under American law and it would supersede any relevant, existing federal or state laws. This will also ultimately limit United States sovereignty by placing American family law and parental rights under international regulation and scrutiny.
The United States and Somalia are the only two countries that have yet to ratify this ticking time bomb. The Convention’s vague standards are troubling and establish the primary basis for why it should not be ratified. As it stands, the UNCRC could be used to establish a “right” to abortion and contraception for our children, based upon international human rights, where the government and international “consensus” would be the sole arbiters of what is in the best interest of children.  In fact, Article 43 of UNCRC appoints a committee of ten “experts” from nations which are party to the UNCRC to interpret the convention and report its suggestions and recommendations for each party nation to the United Nations General Assembly.

One example of current international interpretation of the UNCRC is seen in International Planned Parenthood Federation’s (IPPF) Declaration on Sexual Rights. This controversial document consistently refers to the UNCRC as a source for its general principles. The Declaration proclaims that “[u]niversal, interrelated, interdependent, and indivisible, sexual rights are a component of human rights. They are an evolving set of entitlements that contribute to the freedom, equality and dignity of all people.” In particular reference to children, IPPF’s Declaration’s General Principle 2 states that “[t]he rights and protections guaranteed to people under age eighteen differ from those of adults, and must take into account the evolving capacities of the individual child to exercise rights on his or her own behalf.” With this liberal philosophy, it could likely be argued that anything a child wants could fall within his “best interest. ” This is contrary to traditional standards of childrearing where parents determine what is in their child’s best interest.
UNCRC Article 6 also recognizes that “every child has the inherent right to life.” However, this is very deceptive phraseology. This language has been interpreted to provide for unfettered access to abortion. This so-called “right to life” has also been determined to require abortion if a woman’s health would be at risk from an unsafe, illegal abortion since the international community consistently perceives legal abortions to be safe, ignoring the mounting evidence to the contrary.
More explicit in its proclamation for female health services, including abortion and contraception, is the UNCRC’s Article 24. It requires recognition of “the right of the child to the enjoyment of the highest attainable standard of health…” where “[p]arties shall strive to ensure that no child is deprived of his of her right of access to such health care services.” In the international community, “health care services” is understood to include unrestricted and under-regulated abortion on demand and contraception.
In fact, these same tactics — vague language and liberal interpretation — were similarly utilized by the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to coerce countries into legalizing abortion. The term “abortion” is never once written into or referred to in CEDAW. However, its vague terminology has been interpreted by many in the international community to include abortion on demand. In particular, Article 12 states in part that “to eliminate discrimination against women in the field of health care,” women must be provided “access to health care services, including those related to family planning.” The terms “health care services” and “family planning” have been widely interpreted (by the U.N. and other international bodies) to include abortion on demand and access to contraception.
If the Convention on the Rights of the Child is ratified, not only will it require abortion and contraceptive “health care services” be provided to our children, but it will do so without the consent of parents. Article 16 of the UNCRC provides for a right to privacy, with which no one shall interfere, including parents.
Further, children will be indoctrinated by the mass media without parental restrictions.  Article 17 commits that parties “shall ensure the child access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.”  Importantly, Article 13 provides for a child’s freedom of expression and the right to receive information through any media of the “child’s choice,” thus proscribing parents and others from limiting access to injurious and objectionable material.
Not allowing parents to pass on moral or religious beliefs, but rather turning over sensitive issues of formation to the state, the international community, and media will have obviously devastating effects. The United Kingdom (UK) provides a prime example of this negative impact. The UK government is advocating children choose their own morals regarding sexuality. A government-issued pamphlet entitled “Talking to Your Teenager about Sex and Relationships” encourages parents not to convince their children about what is right or wrong because this will discourage them from being open to all views on sexuality and relationships. British-based social researcher Dr. Patricia Morgan noted that with the program, “[p]arents are not allowed to know if their child is being given contraception or getting an abortion. But they are being told to teach their children about sex in a manner dictated by the State.”
Although President Bill Clinton signed UNCRC in 1995, it has not been ratified, therefore, Americans and our laws are not currently under its auspices.  More importantly, it should not be ratified, as it will hand United State’s national sovereignty over to an International Committee to decide what is in the “best interest” of our children.

By Mailee R. Smith
Staff Counsel
 

In a breath-taking example of legislating by court order, a Montana district judge has set Montana on the fast track to killing its own citizens.  In her December 2008 order, Judge Dorothy McCarter ruled that persons in Montana have a right to die, and a right to assistance in dying.

Suicide advocates are claiming that Montana is now the third state in the nation to allow physician-assisted suicide.  But that is not entirely correct.  It would be more accurate to state that Montana is potentially the first state in the nation to allow active euthanasia.

Suicide advocates would like you to think that this is all about patient “autonomy” and “dignity.”  They couch this in terms of physician assistance in dying for the “terminally ill.”  That patients have a right to decide when and how they die. 

And therein lies the catch.  The suicide advocates in the Montana case—a patient and four physicians—framed their case so broadly as to make just about anyone eligible for assisted suicide.  And the trial judge, in turn, framed her decision so broadly as to imply that constitutional rights will be “defeated” if physicians do not kill their own patients.

This is not mere rhetoric.  It is the straightforward extension of the suicide advocates’ claims and judge’s holding in the case.

Let’s take, for example, the claim that assisted suicide should be available to the “terminally ill.”  The suicide advocates in the Montana case framed their definition so broadly that it would make anyone with diabetes or asthma eligible for this “assisted” death.  They argued that anyone should be eligible who has an incurable or irreversible condition that, without the administration of life-sustaining treatment, will result in death within a relatively short time.

But this definition could be used in any number of “incurable” or “irreversible” medical situations, including diabetes and asthma.  A person with chronic asthma that is perfectly controlled with medications—but life-sustaining medications nonetheless—would easily foreseeably die within a “relatively short time” without those medications.  The same is true of someone with controlled diabetes.

Even more frightening than this expansive definition of “terminally ill” is the judge’s conclusion that, if a patient does not receive assistance in dying, then his or her constitutional rights have been “defeated.”  But what about patients who are physically unable to take the drugs themselves?  Under the judge’s rationale, they would have just as much of a right to a dignified death as a patient who is still capable of self-administering a lethal drug.  But by not assisting those patients—in other words, by not administering the drugs for them—the right to die with dignity is defeated for those patients. 

This is not “assisted suicide.”  It is the active participation in the death of another individual.

Moreover, the judge’s decision has devastating implications for the rights of physicians.  If a physician conscientiously objects to the provision of lethal drugs for a patient, is he or she personally “defeating” the constitutional rights of the patient?  Will he or she be civilly liable to the patient?

In other words, suicide advocates are attempting to achieve a much broader agenda—an agenda they have for the entire nation—in Montana than they even have been able to accomplish in Oregon, the first state to allow physician-assisted suicide.  Although the “safeguards” in Oregon are not fail proof and arguably protect no one, at least there are some guidelines in place.  Not so in Montana.  Not only did the judge legislate the availability of active euthanasia from the bench, but she provided no guidelines or safeguards for the citizens of Montana.

Take, for example, the fact that no second opinion on a patient’s illness or mental competency is required.  The attending physician alone can decide the competency of the patient and whether or not the patient is truly terminally ill.  One physician unilaterally decides the fate of the patient.

In fact, under the judge’s decision, there need not be even written documentation that a patient requested death, and there would be no requirement that other persons witness the request.  Again, one physician is left to decide the fate of the patient, with no checks, balances, or accountability.

This is beginning to sound much like the experience in the Netherlands, where “assisted suicide” has been legal for years.  But Dutch government reports have revealed that patients are being killed year after year without requesting or consenting to this so-called “assisted death.”  For example, in 2000, 950 patients were killed by euthanasia without request or consent.  In 2005, 550 patients were killed by euthanasia without request or consent.

These Dutch government reports are further buttressed by other studies, reporting that one-fourth of physicians admit they have “terminated the lives of patients without an explicit request.”  In another study, no request for death was made in over 80 percent of the cases.

Likewise, what Judge McCarter has approved is not physician-assisted suicide.  It is euthanasia, and the active killing of patients by their physicians—with or without evidence of patient consent.
 
This is the true agenda of assisted suicide advocates.  “Physician-assisted suicide” is simply their rhetorical front for active euthanasia.  This is not “dignity,” and it is not “autonomy.”  And the state of Montana may be playing right into their hands.

The Attorney General of Montana has pledged to appeal the trial court’s decision to the state’s supreme court.  In the meantime, the trial judge has refused to stay her opinion pending the appeal.  That has left suicide advocates claiming that physician-assisted suicide (which, as stated above, encompasses euthanasia) is now available in the state of Montana.  Officials in Montana claim otherwise, warning physicians to tread lightly until the issue is decided by the state supreme court.  Legislators on both sides of the issue in Montana have introduced bills seeking either to implement the judge’s decision, or counter it. 

In other words, the current and future status of “physician-assisted suicide” remains largely unknown in Montana—and hopefully the Attorney General will be successful in convincing the Montana Supreme Court to overturn the trial judge’s expansive decision.  What is obvious, however, is that if the trial court’s decision is allowed to stand, Montana will be the first state in the union to kill its own citizens.

By Daniel Briggs
AUL Legal Fellow
 

At the 1984 U.N. International Conference on Population in Mexico City, President Reagan announced the Mexico City Policy (the “Policy”).  It provides that for nongovernmental organizations (NGOs) to be eligible to receive federal funding, they must agree not to perform or actively promote abortion as a method of family planning in other nations.  The Policy was continued by President George H.W. Bush, rescinded by President Clinton in 1993, and reinstated by President George W. Bush in 2001.[1][2]  Exceptions exist for abortions done in response to rape, incest, or threat to the mother’s life or health.  The precise wording of the Policy is as follows:

The United Nations Declaration of the Rights of the Child (1959) calls for legal protection for children before birth as well as after birth In keeping with this obligation, the United States does not consider abortion an acceptable element of family planning programs and will no longer contribute to those of which it is a part.  Accordingly, when dealing with nations which support abortion with funds not provided by the United States Government, the United States will contribute to such nations through segregated accounts which cannot be used for abortion.  Moreover, the United States will no longer contribute to separate non-governmental organizations which perform or actively promote abortion as a method of family planning in other nations.[3]

President’s Legal Authority for Policy

Federal appellate courts have ruled that the Foreign Assistance Act of 1961 provides the President the authority to “furnish assistance, on such terms and conditions as he may determine, for voluntary population planning.”  Claims by pro-abortion organizations that the policy infringed upon their First Amendment rights have been rejected.[4]

Impact of Policy

As directed by the Policy, the U.S. Agency for International Development (USAID) requires potential recipients of  U.S. funding for foreign family planning assistance to certify they would not promote or perform abortions – with federal or other funds — as a method of family planning.  In the past, at least two major pro-abortion organizations refused to comply.  The International Planned Parenthood Federation (IPPF) (of which the Planned Parenthood Federation of America (PPFA) is a major affiliate) forfeited its federal funding under the Policy.  PPFA followed suit in rejecting the Policy, sued and lost (supra), ultimately losing its funding as well.

According to the IPPF, approximately 32 million visits a year are made to over 58,000 of its facilities worldwide.[5]  These facilities are located in many countries that have laws prohibiting or severely limiting abortion.  Undeterred, PPFA leadership is on record as having urged its international allies to break the laws of these nations, stating that “action outside the law, and even in violation of it, is part of the process of stimulating change.”[6]

Impact of Obama Administration’s Rejection of Mexico City Policy

On (insert date), the Obama Administration rescinded the Policy.  As a result, abortion-on-demand will be actively promoted by groups like IPPF and practiced in other countries, underwritten by American taxpayer dollars.  Further, pro-abortion family planning groups — armed with federal funding – will continue to circumvent foreign abortion laws and pressure other nations to capitulate to their radical pro-abortion agenda.

By blocking federal funds from supporting abortion abroad, the Policy preserved comity of nations.  By rescinding the Policy, the Obama Administration has ensured that millions of U.S. taxpayer dollars will go abroad in support of abortion, even where such support is not wanted.

Mexico is just one example[7] of a sovereign nation that has recently bowed to international pressure on abortion.  A 2007 ruling by the Mexican Supreme Court – influenced by legal arguments made by American pro-abortion groups like the Center for Reproductive Rights and Planned Parenthood and opposed by the majority of the Mexican people – legalized abortion-on-demand during the first 12 weeks of pregnancy in Mexico City and the surrounding province.[8]

[1] White House Memorandum, dated 22 January 2001, available online at http://www.whitehouse.gov/news/releases/20010123-5.html (last visited 8 January 2009).

[2] USAID statement in implementation of White House memorandum, supra, available at http://www.usaid.gov/bush_pro_new.html (last visited 8 January 2009).

[3] Statement of the United States of America at the United Nations International Conference on Population (Second Session), Mexico, D.F., August 6-13, 1984.  Pet. App. 4a-5a, 53a-55a (emphasis supplied).

[4] DKT Memorial Fund Ltd. v. A.I.D., 281 U.S. App. D.C. 47; 887 F.2d 275 (1989).

[5] International Planned Parenthood Federation, “About Us”, available online at http://www.ippf.org/en/About/Default.htm (last visited: 12 January 2009).

[6] 1983 resolution signed by then-PPFA President Faye Wattleton.

[7] A complete list of nations pressured to legalize or increase access to abortion is available online at http://www.nrlc.org/federal/foreignaid/UNCommitteesAbortion.pdf (last visited: 15 January 2009).

[8] Ioana Ardelean, “An Ominous Sampling of International Efforts to Force Abortion on Reluctant Nations,” available online at http://aul.org/InternationalPressur (last visited: 15 January 2009); see also, Mailee Smith, “Mexico Supreme Court Decision a Major Threat to Latin America,” available online at http://blog.aul.org/2008/08/29/mexico-supreme-court-decision-a-major-threat-to-latin-america/ (last visited: 15 January 2009).

By Daniel Briggs
AUL Legal Fellow
 

I swear . . . to keep according to my ability and my judgment, the following Oath.

[…]

I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.

[…]

                                                                                 -Original Hippocratic Oath[1]

The Hippocratic Oath has changed since its creation in response to the pervasive influence of postmodernism and correlative moral relativism.  But while the oath may have changed, the consciences of many doctors and other medical professionals have not.  And though they are increasingly hard-pressed to abandon their consciences, they steadfastly refuse, most often with regard to elective services (i.e., abortion, contraception, sterilization, physician-assisted suicide, withdrawal of artificial nutrition and hydration, etc.).  Abortion advocates oppose protections for these objections, arguing that they will hinder a woman’s access to healthcare.  But this argument is unavailing; patients may simply find another medical provider who is willing to perform or provide the desired service.

On December 18, 2008, the Department of Health and Human Services (HHS) implemented federal regulations[2] with one objective in mind:

[T]o ensure that Department funds do not support morally coercive or discriminatory practices or policies in violation of federal law, pursuant to the Church Amendments (42 U.S.C. § 300a-7), Public Health Service (PHS) Act §245 (42 U.S.C. § 238n), and the Weldon Amendment (Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 508(d), 121 Stat. 1844, 2209).[3]

In other words, they provide support for medical professionals wishing to not perform abortions or fill prescriptions in violation of their religious or ethical beliefs.  Recipients of federal funds through HHS must certify their compliance with existing federal laws protecting healthcare providers from coercion, discrimination, or negative job consequences for refusing to participate in certain procedures including – but not exclusive to – abortion.

As a practical matter, these regulations simply underscore the constitutional rights of medical professionals.  But when abortion is the topic du jour, what is otherwise irrefutable becomes a matter of contention. 

President’s Legal Authority

The president cannot negate or rescind these regulations by fiat.  Instead, absent legislative or court intervention, he must navigate the same administrative process used to produce the rules in the first place. 

­

Impact of HHS Conscience Protections

The poor condition of America ’s healthcare system is self-evident, as demand overwhelms supply.  HHS conscience protections serve to keep healthcare providers and institutions within the system providing much-needed services.  If abortion advocates have their way and if these protections are removed, many healthcare providers forced to decide between conscience and career will choose the former.  And Americans will suffer as a result.  Also, the removal of these conscience protections will also deter fine young men and women from even entering the medical field.  And even more Americans will suffer as a result.    

Impact of Obama Administration’s Proposed Repeal of HHS Conscience Protections

Freedom of conscience simply guarantees American men and women the fundamental right to be free from coercion.  Protecting conscience ensures that providers enter and remain in the healthcare profession.  It follows, then, that this will help meet the rising demand for quality healthcare.  Conversely, failure to protect conscience will lead to dramatic losses in the provision of healthcare.  By supporting the repeal of the HHS conscience protections recently enacted, the Obama Administration has delivered a major blow to the provision of healthcare in America .  And Americans suffer as a result.

[1] “Greek Medicine,” National Institutes of Health – History of Medicine Division, available online at http://www.nlm.nih.gov/hmd/greek/greek_oath.html (last visited: 09 Feb 2009).

[2] 45 CFR Part 8, available online at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=45:1.0.1.1.47&idno=45 (last visited: 05 Feb 2009).

[3] Id.

By J. Margaret Datiles
Former Staff Counsel

Today, many pro-life Americans mistakenly believe that we are in a similarly bleak position. The pro-life movement suffered significant losses in 2008 – three state pro-life ballot initiatives failed, and the new President-elect has promised to sign the Freedom of Choice Act (FOCA), radical legislation that would establish the so-called “right to abortion” as a “fundamental right” and overturn more than 550 federal and state abortion-related laws.

But are the days ahead really as dark as they seem?

I am happy to say, firmly and resolutely: The horizon is not as dark as it appears. There is great reason for hope, and the days ahead hold opportunities and even victories for the pro-life movement. In the face of adversity, the pro-life movement will do as it has always done during such times: persevere. The cause for life has been confronted with seemingly-impossible challenges in the past, and has consistently responded by staying the course, only to emerge more energized than before. The very existence of a thriving pro-life movement in America’s post-Roe society is a testimony to this fact. History has shown that the cause for life has continued to succeed and grow despite overwhelming odds, vigorous attacks by abortion advocates, and premature dismissal by the media and academic elite.

The Obama administration, with its strong anti-life commitments, will certainly present new and numerous challenges for the cause for life. And like David walking defiantly into battle against Goliath, the pro-life movement will march with steady feet and a steadfast heart to face and overcome the challenges of 2009.

Winning the Battle for Hearts and Minds: The Majority of Americans Trend Pro-Life

A great source of hope for the pro-life movement is the growing pro-life culture in American society. Recent polls reveal that the vast majority of Americans identify themselves as pro-life, and favor greater regulations on abortion.

A 2008 ABC News-Washington Post poll reported that the number of Americans who identify themselves as abortion supporters has dropped to its seven-year low, whereas the number of “pro-life” Americans has risen significantly. Similarly, a 2008 Gallup poll showed that 71% of Americans want all abortions to be limited to rare circumstances or to be illegal.

A 2007 Zogby poll showed that abortion regulations are widely supported by Americans. For example, the poll revealed that 69% of Americans favor parental notification laws and limitations on government funds for abortions domestically and abroad.

CBS News polls in 2006 and 2007 reported that the majority of Americans want all or most abortions to be prohibited, with limited exceptions for rape, incest and to save the life of the mother. In 2006, only 12% were reported to want to abortion to be legal in all cases.

Citizen-driven pro-life efforts also indicate a flourishing pro-life movement. For example, AUL Action started collecting signatures for an anti-FOCA petition in November 2008. Thus far, over 400,000 Americans have signed the petition, and that number continues to grow by the day. Other citizen-driven pro-life efforts include the 40 Days for Life campaign, which organizes 40-day prayer vigils outside of abortion clinics around the nation. 40 Days for Life currently has 177 chapters in 47 states.

Last, but certainly not least, is the annual March for Life, held in Washington, D.C. annually on the anniversary of Roe v. Wade. Twenty thousand people marched in the first March for Life in 1974. Between 1977 and 1998, up to 100,000 people attended the March. From 2003 through 2006, more than 225,000 people attended. (1)

The growing numbers of actively pro-life Americans is indicative of a population that supports pro-life principles, regardless of who is in power in Washington. In the face of such overwhelming evidence of a renewed and flourishing American pro-life culture, it is clear that the cause for life is ready to take on the challenges of 2009 and beyond. 

2008 Pro-Life Successes Indicate Progress and Promise

Last year’s pro-life victories must not be forgotten amidst our growing concerns for 2009. For example, in 2008, state legislatures session considered 12% more abortion-related legislation than they did in 2007 – the vast majority of the bills were “pro life.” This is especially impressive, considering that five states (including the very pro-life states of Arkansas, North Dakota and Texas) were not in session last year. (2)  Abortion bans, ultrasound requirements, and funding limitations for abortion were among the most popular pro-life legislation considered last year. This rise in state abortion-related legislation demonstrates that common-sense abortion regulations and restrictions are issues of increasing relevance and interest and are not an outdated or “oh-so-90’s” topic as some falsely claim.

During the 110th Congress, at least 97 life-related bills and resolutions were considered. Importantly, all pro-life limits on federal funding for abortion were preserved.  (3) One notable pro-life law that was enacted by Congress in 2008 is the Prenatally and Postnatally Diagnosed Conditions Awareness Act (requiring physicians to provide expectant mothers with information on prenatally and postnatally diagnosed conditions and support services).Clearly, Congress recognizes the need to continue the debate over abortion.

In addition to pro-life legislative victories, the courts produced their own share of pro-life victories. For example, on October 6, 2008, the U.S. Supreme Court declined to review the Arizona case, Arizona Life Coalition, Inc. v. Stanton. In that case, the Ninth Circuit held that Arizona must allow the issuance of “Choose Life” license plates, as a denial of an application for such plates would be unconstitutional.

In Morr-Fitz v. Blagojevich, the Illinois Supreme Court ruled that pharmacists and pharmacy owners have standing to challenge the constitutionality of an executive rule requiring them to dispense RU-486 upon demand, even if such practice violates their moral beliefs. This rule reflects a trend among anti-life advocates to push for policies which force healthcare professionals to participate in abortions and/or to dispense RU-486. This trend is a reaction to the diminishing numbers of healthcare professionals willing to perform abortions and/or dispense RU-486. The dwindling numbers of actively anti-life health professionals and the recent Illinois Supreme Court decision are pro-life triumphs and signs of increasing pro-life sentiment.

Last year’s pro-life legislative and court victories should provide encouragement to those who continue the fight for life.

Conclusion

Although it is clear that the incoming Presidential administration has espoused radically anti-life sentiments, it is equally as clear that the pro-life movement is alive and well. Recent pro-life successes in the legislatures and courts and evidence of an increasing pro-life American populace are sources of courage and hope. The fight for life (or the “abortion wars” as some term it) is far from over – indeed, it has only just begun.

(1)  March for Life, Education and Defense Fund, “The Marchers Keep Marching.” Available at http://www.marchforlife.org/content/view/13/26/ (last visited January 12, 2009).
(2)  Denise M. Burke, Review and Analysis of 2008 State Legislative Sessions, published by Americans United for Life. Available at http://aul.org/2008_State_Sessions (last visited January 11, 2009).
(3)  J. Margaret Datiles, Review of 110th Congress: Pro-Life Advances and Attacks, and Where We’re Going from Here, published by Americans United for Life. Available at http://www.aul.org/110Review (last visited January 11, 2009). 

By J. Margaret Datiles
Former Staff Counsel
 

On November 4, 2008, the pro-life movement suffered losses on five state ballot initiatives. Yet there is much we can learn from the three pro-life ballot initiatives defeated (in California, Colorado, and South Dakota) and the two anti-life ballot initiatives passed (in Michigan and Washington). 

Specifically, these losses demonstrate that legislative efforts at the state level must remain at the forefront of the cause for life during the coming Obama administration. With dangerous legislation like the Freedom of Choice Act—a radical bill Obama has promised to sign—looming, pro-life forces continue to enact laws protecting women and the unborn from the negative impact of abortion and take immediate action to counter the increased efforts by abortion advocates to enshrine abortion-on-demand into American law. We have learned that our greatest successes—as demonstrated in South Dakota—have come not through ballot initiatives, but through such state legislative action.

California: Parental Involvement

In California, Proposition 4, or “Sarah’s Law,” was narrowly defeated by a 52 to 48 percent vote. Proposition 4 would have amended the California Constitution to protect parental rights and the safety of minors by ensuring that a parent or guardian is notified of his or her minor daughter’s abortion at least 48 hours prior to that abortion. The measure would have provided protection for minors against sexual abuse and coerced abortions, and would have put California in line with the rest of the nation, as the vast majority of states have already enacted parental involvement laws.

This year’s election marks the third defeat of a parental involvement ballot initiative in California in the last six years. However, it is important to note that the margin by which the initiative was defeated is the narrowest it has been to date—a reflection of increased support for parental involvement laws in California.

The failure of Proposition 4 has left minors in California vulnerable to sexual exploitation and the harmful effects of abortion, and has left parental rights unprotected. While the legislature has also failed to pass parental involvement laws in the past, the increased support for parental involvement laws should be a wake-up call for legislators in California that the people are demanding protection for their children.

Washington: Physician-Assisted Suicide

In Washington, voters approved I-1000 by a 59 to 49 percent vote. I-1000 legalized physician-assisted suicide (PAS) in the state, making Washington the second state after Oregon to legalize the practice. Washington’s new policy poses significant dangers to its citizens. For example, the new PAS law will encourage healthcare insurance companies to pinch pennies by denying coverage for life-saving treatments and offering only to pay for physician-assisted suicide. In other words, the new policy has created financial incentives for healthcare insurance companies to pressure vulnerable patients into “choosing” physician-assisted suicide—thus making the so-called “right to die” a “duty to die.”

I-1000 also impacts the rights of conscience of healthcare providers.  The Washington State Medical Association has stated that physicians practicing in the state are not required to perform PAS, even if the practice has been legalized. However, as the rights of conscience of healthcare professionals who refuse to perform and participate in abortions are under attack, we can expect the rights of healthcare professionals who refuse to perform and participate in PAS to come under attack as well.

Further, I-1000 demonstrates the impact of one state’s policies on the rest of the nation. The legalization of PAS in Washington is just the first step in the pro-suicide organization Compassion and Choice’s “Oregon plus One” plan. According to their plan, if Washington State legalized physician-assisted suicide, it will be easier to legalize the practice in other states, and eventually throughout the nation.  The group is likely to next target states such as California, Hawaii, Arizona and Vermont in its pursuit of expanded “rights” to physician-assisted suicide across the country.  Legislators and policy groups in those states must start mobilizing to fight off such efforts.

Michigan: Embryonic Stem-Cell Research

In Michigan, Proposal 2, the “Stem Cell Initiative,” was approved by a 52 to 48 percent vote. Proposal 2 has legalized destructive research on human embryos, and authorizes government funding for research on human embryos produced in fertility clinics. It has also opened the door to the legalization of human cloning and the creation of human-animal hybrids. This represents a complete reversal of state law, which previously banned all destructive research.

It is incredibly unfortunate that so much effort is being wasted on embryonic stem cell research, which has not resulted in a single successful cure or treatment for any patients. Adult stem cell research, on the other hand, has successfully treated patients with over 70 kinds of diseases and conditions. In the face of quickly advancing technology and success in the area of adult stem cell research, increased funding for embryonic stem cell research is a waste of resources. State funding would be put to better use by supporting adult stem cell research, rather than by supporting research that has proven to be fruitless.

South Dakota: Abortion Ban

In South Dakota, voters failed to pass Initiated Measure 11 by a 55 to 45 percent vote. The measure would have amended the South Dakota Constitution to ban all abortions in the state, except for those performed in cases of rape or incest, or when continued pregnancy severely endangers the woman’s life or health. This is the second time in the last two years that the voters in South Dakota have failed to pass an abortion ban.

Despite South Dakota’s failure to limit abortions through state ballot initiatives, much progress has been made in that direction through the state legislature. For example, South Dakota currently has laws on informed consent, ultrasound availability, parental involvement, funding limitations for abortions, and abortion reporting. South Dakota law also requires abortions to be performed only by trained, licensed physicians, and has a law that will ban both surgical and chemical abortions with an exception to save the life of the mother when Roe v. Wade is eventually overturned.

In light of the failure of Initiated Measure 11 and the continuing success of incremental legislation to limit and “fence in” abortion in South Dakota, the state should continue to enact pro-life abortion legislation, and other states should take notice of South Dakota’s success at limiting abortion through incremental legislative action.

Colorado: Human Life Amendment

Colorado’s Proposition 48, the “Colorado Equal Rights Amendment,” was defeated by a 73 to 27 percent vote. Proposition 48 would have amended the Colorado Constitution to define the term “person” as “any human being from the moment of fertilization,” for purposes of actions take by the state, the state government, and state officials. In order to understand the practical effects of a human life amendment (HLA) like Proposition 48, it is necessary to note that federal and state constitutions apply only to actions taken by the government, and not to the actions of private persons. Thus, an HLA would therefore only prohibit government officials, employees, and facilities from performing abortions.  State HLAs would not prohibit private abortion providers from performing abortions.  Another law, such as a criminal ban on abortion, would be needed to reach private conduct.

Thus, in order to prohibit the majority of providers from performing abortions, a state’s statutory law must be amended. This can only be done at the legislative level. In fact, the pro-life movement has already been successful in establishing legal personhood for the unborn in certain areas of the law, such as fetal homicide, wrongful death, and assault and battery laws.

Generally speaking, achieving comprehensive protection for the unborn requires first the establishment of full legal personhood for the unborn in a state’s statutory law, and then the reinforcement this protection through an HLA. An HLA would then be the “crowning achievement” of a history of social, cultural, and legislative change and progress rather than a catalyst for reform(1).  The defeat of Proposition 48 by such a wide margin demonstrates that the first step is still necessary in Colorado: legislative action to further the cause for life and effectively protect the unborn.

Conclusion

Although the results of ballot initiatives in California, Colorado, Michigan, South Dakota and Washington State are disheartening for the pro-life movement, they are temporary setbacks that have effectively underscored the importance of legislative action at the state-level in order to further the cause for life.

(1) Historically, constitutional amendments have generally functioned as “reinforcers” of already-existing policies and cultural values. Constitutional amendments usually come at the end of a series of legislative and social changes, not at the beginning. The Fourteenth and Nineteenth Amendments are primary examples of this general principle.

By Mailee R. Smith

Staff Counsel
 

Clearly, abortion advocates are not pulling any punches when it comes to advancing their ultimate agenda: forcing all healthcare providers to choose between providing abortion-on-demand and any other morally problematic procedures or drugs, or leaving the profession.  And for a nation already facing a healthcare crisis caused by an insufficient number of healthcare providers to account for our ever-growing demand, that is a dangerous ultimatum.

This ultimatum—compromise your beliefs or get another job—cannot be dismissed as mere “rhetoric” put forth by those in the pro-life community.  It is more of a battle cry that is growing not only in the pro-abortion movement, but even among certain medical groups.  Several months ago, the American College of Obstetricians and Gynecologists (ACOG) issued an ethics opinion that completely disregarded the fact that physicians have conscience rights guaranteed under federal law.  The American Board of Obstetrics and Gynecology (ABOG) subsequently issued a statement basically adopting ACOG’s position, and potentially forcing physicians to either violate their conscience by referring for abortions, or risk losing their board certification.

Fortunately, these actions did not go unnoticed by the U.S. Department of Health and Human Services (HHS).  In August, HHS Secretary Mike Leavitt announced a proposed regulation that would increase awareness of, and compliance with, three separate federal laws that protect the rights of conscience of federally funded healthcare providers.  These federal laws include the Church Amendments, which protect healthcare providers from discrimination by recipients of HHS funds on the basis of their refusal to perform or participate in any lawful health service or research activity; section 245 of the Public Service Health Act, which prohibits federal and local governments from discriminating against individuals and institutions who refuse to receive training in or perform abortions; and the Hyde-Weldon Amendment, which prohibits the provision of HHS funds to any federal, state, or local government agency or program that discriminates against individuals or institutions for failing to provide or pay for abortion.

Again, these are federal laws that are already in place.  HHS issued the proposed regulation because individuals and entities like ACOG and ABOG seem completely unaware of—or potentially utterly dismissive of—these federally-guaranteed conscience rights.  The proposed regulation will increase awareness of and compliance with these federal laws by, among other things, requiring recipients of HHS funds to certify compliance with the laws; designating an office to receive complaints of discrimination; and charging HHS officials with ensuring that the federal rules are followed.  The goal: ensuring that the public and members of the medical community understand that healthcare providers do not have to compromise their beliefs in pursuing their profession.

As Secretary Leavitt stated, “This proposed regulation is about the legal right of a health care professional to practice according to their conscience…. Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience.  Freedom of expression and action should not be surrendered upon the issuance of a health care degree.”

Unfortunately, the Supreme Court of California doesn’t appear to agree, and in August issued an opinion in demonstrating the dire need not only for compliance with federal law, but also the enactment of solid conscience protections at the state level.  The case, North Coast Women’s Care Medical Group v. Benitez, was brought by a lesbian woman who claimed that two physicians at North Coast refused to provide a certain nonessential, artificial insemination treatment because of her sexual orientation.  Truth be told—and the physicians tell it well in this case—the physicians told the women at the forefront of her medical care that, based upon their moral and religious beliefs, they could not provide that insemination process to any single woman, regardless of her sexual orientation.

Ms. Benitez sued.  In her legal arguments, Ms. Benitez actually compared physicians and medical facilities to skating rinks and barber shops.  Basically, her line of reasoning goes something like this: if a skating rink or barber shop opens, the owner can’t discriminate against the patrons who enter the facilities.  Likewise, physicians can’t “discriminate” against patients who show up in their offices demanding nonessential treatments—no matter how morally problematic those nonessential treatments may be.  Using terms such as “for-profit medical practice,” “business establishment,” “marketplace,” and “commercial opportunity,” Ms. Benitez denigrates the noble practice of medicine to a mere business transaction.

And again, the battle cry was the same: provide whatever nonessential and morally problematic treatment I demand, or get out of the business.  Only this time, Ms. Beneitez couched her battle cry in terms of “accommodation.”  Physicians can be “accommodated” in their beliefs by choosing a different line of work—medical or otherwise.  Few would argue that this could ever qualify as a rational “accommodation.”  Instead, it is just a re-packaged version of the “compromise or get out” ultimatum.  And of course, Ms. Benitez failed to acknowledge that physicians have free exercise rights guaranteed by the federal Constitution.  In other words, it was Ms. Benitez that demonstrated complete intolerance for the lifestyle decisions of her physicians.

And the California Supreme Court bought it—hook, line, and sinker.  The Court adopted her extreme position that, once entering the profession, physicians must treat every patient that comes in their door with any nonessential treatment that patient demands—regardless of moral or religious beliefs.  This holding leaves no room for good faith medical judgment or a check on demanding patients, leaving physicians at the whim of patients who could claim discrimination in just about any conceivable scenario.  No room is left for a balancing of physician and patient rights.  Patient “rights” trump, no matter what: Patient “rights” trump physician rights.  Patient “rights” trump moral beliefs.  Patient “rights” trump the guarantee of free exercise under the federal Constitution.

But as HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D., stated, “[H]ealth care providers shouldn’t have to check their conscience at the hospital door.”  The current federal administration “gets it.”  The conscience rights of physicians and other healthcare workers must be protected.  Now is the time for states to enact laws protecting the conscience of all healthcare providers in all healthcare settings—and especially in the setting of nonessential medical treatment—before another state court fails to “get it.”  And public health in this nation suffers for it.

By Rebecca Mastee
AUL Spring 2009 Extern
 

For years, while promoting the Freedom of Choice Act (FOCA), pro-abortion groups have publicly claimed that the law would merely codify Roe v Wade and Doe v Bolton, two United States Supreme Court Cases that legalized abortion.  Lobbying for FOCA began with its introduction in 1989.  For example, in 1992, Kate Michelman, former president of the National Abortion Rights Action League (NARAL),[1] claimed that women no longer had a fundamental right to abortion, and were being moved one step closer to back-alley abortions.[2]  NARAL, Planned Parenthood, the National Organization of Women (NOW), and the American Civil Liberties Union (ACLU) all maintain that FOCA will guarantee a woman’s fundamental right to abortion.

Specifically, NARAL contends that FOCA is essential because “a woman’s right to choose is being chipped away both by the courts and state lawmakers” and that the right to abort has been eroded by “more than 500 anti-choice measures…, essentially rolling back this fundamental right for many women.”[3]  The ACLU reiterates this by stating:

Since the landmark 1973 Roe v. Wade decision, anti-choice legislators in the states and in Congress have systematically eroded reproductive rights…  Other state and federal restrictions threaten to make reproductive freedom an empty promise for many American women, and many of these restrictions fall most heavily on low-income women and young women.  For example, 33 states and the District of Columbia currently restrict low-income women’s access to abortion; several federal laws, such as the Hyde Amendment, bar access to abortion care for low-income women who rely on the federal government for their health care.[4]  

In 2007, when the United States Supreme Court (USSC) upheld the Partial-Birth Abortion Ban of 2003, pro-abortion organizations saw this as yet another threat to the “right” to abortion and once again renewed efforts to enact FOCA.  Yet while attacking the Court’s decision, NARAL masked the substance of the federal ban on partial-birth abortion and simply referred to it as the “first-ever federal ban on a safe abortion method.”[5]  Planned Parenthood too criticized this “federal abortion ban” and omitted the term “partial-birth.”[6]  This ban, and any other state or federal limitation on abortion, although permitted by Roe v Wade, are seen by abortion supporters as an erosion of the “right” to abortion.  Hence, they market FOCA as imperative and necessary to retain this controversial “right.”

However, setting aside whether or not abortion truly is a woman’s fundamental right, asserting that FOCA is a mere codification of the rights granted by Roe is in and of itself misleading.  Although Roe v Wade provided the right to choose an abortion, USSC jurisprudence has consistently permitted state and federal regulations and restrictions on this “right,” such as the nationwide ban on partial-birth abortion, requirements for parental involvement or informed consent, and limitations on the use of taxpayer funding for abortions.

Yet any regulation of or restriction on abortion is unacceptable to abortion supporters.  They are pushing FOCA as a way of establishing a woman’s “absolute right to choose whether to continue or terminate [her] pregnancies before fetal viability”[7] [emphasis added] and, in reality, at any time of pregnancy up to live birth.  For example, NOW argues that FOCA will also provide for post-viability or late-term abortions to preserve a woman’s life or health.[8]  In the context of abortion, the term “health” is very broadly interpreted.  “Health” encompasses not only a woman’s physical health, but also includes factors such as “emotional, psychological, familial, and the woman’s age…” as relevant to medical judgment, which notably allows attending physicians unlimited discretion.[9]

Also, under FOCA , viability[10] is determined medically on a case by case basis and cannot legally be established as occurring at a particular time for all women.[11]

Therefore, this “right” to post-viability abortions establishes a wide open door to unlimited late-term abortions.  With no consensus as to when viability occurs and an indefensibly broad definition of women’s “health,” abortionists will be able to find justification in any case.

Addressing the expanse of FOCA, Senator Barbara Boxer (D-CA), who introduced FOCA in both 2004 and 2007, further admits:

FOCA supersedes any law, regulation or local ordinance that impinges on a woman’s right to choose.[12] [Emphasis added.]

The ACLU also proclaims the goal of FOCA.

By superseding existing anti-choice laws that restrict the right to choose abortion, and prohibiting any level of government from enacting measures that deny or interfere with a woman’s right to choose to continue or end a pregnancy, FOCA would stop the erosion of a woman’s right to choose.[13] [Emphasis added.] 

 While NOW admits:

FOCA applies to measures enacted or implemented before, on, or after the date of its enactment.[14] [Emphasis added.]

FOCA creates a no-restriction policy on abortion, impacting all laws, current and future, that might curtail abortions.  This expansive, unlimited “right” was not set out in Roe.

According to the most recent version, FOCA will prohibit all state and federal governments from:

1. Denying or interfering with a woman’s right to choose to bear a child, terminate a pregnancy prior to viability, or to terminate a pregnancy after viability where term is necessary to protect the life or health of a woman
2. Discriminating against a woman’s exercise of these rights in the regulation or provision of benefits, facilities, services, or information[15]

Pro-abortion organizations readily admit this “no-regulation and no-restrictions policy” that FOCA would establish.  These admittances are more elusive and veiled, though, as the true implications of FOCA are not fully evident in their statements.  

For example, Senator Boxer selectively noted that FOCA will invalidate all current laws restricting government funding of abortion, prohibiting abortion in public hospitals, requiring women seeking abortion to receive information about the procedure and alternatives to abortion, or those laws requiring a waiting period prior to obtaining an abortion.[16]  Denise Burke of Americans United for Life states that FOCA will also nullify laws which currently allow medical staff or centers to conscientiously object to performing or participating in abortions, as well as a multitude of other common-sense and medically-supported laws such as requirements that only licensed physicians perform abortions.[17]

NOW and Planned Parenthood both acknowledge

FOCA will supersede laws that restrict the right to abortion, including laws that prohibit the public funding of abortion care for poor women or counseling and referrals for abortion services.[18] [Emphasis added.]

Additionally, “FOCA will prohibit onerous restrictions on this right, such as mandated delays and medically unnecessary regulations.”[19]  These “restrictions” being federal and state bans on partial-birth abortion ban and restrictions on taxpayer funding of abortions, while “mandated delays” and “medically unnecessary regulations” refer merely to state sanctioned reflection (or “waiting”) periods, informed consent requirements, and parental involvement laws.

NOW argues that parental involvement laws are really used as a

[T]ool to deny access to abortion services for minors [and] when such laws deny or interfere with the ability of minors to access abortion services, they would violate FOCA.[20] [Emphasis added.]

The ACLU backs this belief denouncing state laws that it views as “restrict[ing] young women’s access to abortion by mandating parental notice or consent.”[21]  Under FOCA then, teenage girls will have the “right” to abortion and parents will not only have no right to any participation in or knowledge of the abortion, but they will also have no right to protect their daughters.

FOCA guarantees abortion, by voiding all current restrictions and prohibiting future regulations.  Answering whether FOCA goes beyond the rights granted to women in Roe v Wade, NOW and Planned Parenthood both admit that FOCA goes after the “full vision of reproductive freedom” by forbidding “government from interfering with a woman’s right to choose to bear a child” and “prohibits discrimination against the exercise of reproductive rights.”[22]  Planned Parenthood further admits

The legislation would invalidate existing and future laws that interfere with or discriminate against the exercise of the [abortion] rights protected.[23]

Clearly FOCA does more than just codify Roe.

As a result, NARAL and the ACLU applaud FOCA for establishing federal law that guarantees reproductive freedom for future generations.[24]  Under this guise of “freedom,” the voiding of all restrictions on abortion will, in reality, leave women unprotected and more vulnerable.  For example, FOCA would enable a 12 year old girl to obtain an abortion, not only without parental consent, but without her parents ever being alerted that she had an abortion.  Her abortion could be performed by a non-physician, who, without informed consent laws, would not be required to tell her about the inherent risks of the procedure.  Additionally, with no limitations on government funding, all of this would be paid for by taxpayer dollars.  

[1] NARAL is now known as NARAL-Pro-Choice America.

[2] Federal News Service, News Conference with National Abortion Rights Action League Re: Supreme Court Decision in Pennsylvania Case, June 29, 1992.

[3] NARAL Pro-Choice America, Freedom of Choice Act (FOCA) fact sheet, January 1, 2008, available at http://www.prochoiceamerica.org/assets/files/Abortion-Access-to-Abortion-FOCA.pdf, last visited January 30, 2009.

[4] Caroline Fredrickson and Gregory T. Nojeim, ACLU Letter to Senator Boxer and Representative Nadler Thanking the Lawmakers for Introducing the Freedom of Choice Act (FOCA), April 2006, available at http://www.aclu.org/reproductiverights/abortion/25062leg20060417.html, last visited February 3, 2009. 

[5] Supra, note 3.

[6] Planned Parenthood, Freedom of Choice Act, May 5, 2008, available at http://www.plannedparenthood.org/issues-action/abortion/freedom-of-choice-act-19942.htm, last visited January 30, 2009.

[7] Statement by U.S. Senator Barbara Boxer, January 22, 2004, available at http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf, last visited January 30, 2009.

[8] NOW, Freedom of Choice Act would Guarantee Roe Protections in U.S. Statutes: Questions & Answers about FOCA, April 30, 2007, available at http://www.now.org/issues/abortion/070430foca.html, last visited January 30, 2009.

[9] Doe v. Bolton, 410 U.S. 179, 192 (1973).

[10] Viability is the time at which a fetus is capable of sustained survival outside the womb.

[11] Supra, note 8.

[12] Supra, note 7.

[13] Supra, note 4.

[14] Supra, note 8.

[15] FOCA, 2007.

[16] Supra, note 2.

[17] Denise Burke, “The Freedom of Choice Act: Imposing Unregulated Abortion on Americans,” available at http://culture-of-life.org//content/view/490/96/, last visited February 3, 2009.

[18] NOW, Supra, note 8. See also, Planned Parenthood Federation of America, Questions and Answers about FOCA, January 22, 2004, available at http://www.nrlc.org/FOCA/PPFAfoca-questions-12445.pdf, last visited January 30, 2009.

[19] Id.

[20] Supra, note 8.

[21] Supra, note 4. 

[22] Supra, note 18.

[23] Planned Parenthood, Support the Freedom of Choice Act, May 2, 2007, available at http://www.plannedparenthood.org/issues-action/abortion/freedom-of-choice-act/articles/support-foca-14393.htm, last visited January 30, 2009.

[24] NARAL, Supra, note 3. See also ACLU, ACLU Applauds Introduction of the Freedom of Choice Act, April 2007, available at http://www.aclu.org/reproductiverights/abortion/29439prs20070419.html, last visited February 3, 2009.

By Denise Burke

Last week, the Department of Health and Human Services (HHS) implemented long-overdue rules designed to ensure that recipients of federal funds comply with federal law. The new rules even go so far as to require that the constitutional rights of all Americans be respected and protected.

Denise Burke
AUL Vice President & Legal Director
 

i. Introduction

As we prepare for the fall elections and the run-up to the 2009 state legislative sessions, it is critical that we learn the lessons of 2008. This report analyzes the successes, defeats, and important legislative trends related to abortion, protection of unborn victims of violence, contraception, healthcare rights of conscience, biotechnologies, and the end-of-life.

ii. Abortion

While several states introduced abortion bans, the number of states considering complete or near-complete bans on abortion has not significantly increased since last year’s Gonzales v. Carhart decision.

Rather, what has increased is legislation designed to protect women from the negative consequences of abortion. Among these measures are comprehensive informed consent requirements, stronger parental involvement provisions, requirements that a woman be offered the opportunity to view an ultrasound before an abortion, and mandated minimum health and safety standards for abortion clinics.

In 2008, 45 states considered nearly 450 measures related to abortion, a 12% increase from 2007 activity levels. This is especially notable given that 5 states (including very pro-life Arkansas, North Dakota, and Texas and very legislatively-active Oregon) did not hold regular legislative sessions this year. Among recent pro-life victories were:

• An omnibus measure in Oklahoma, requiring that a woman undergo an ultrasound prior to an abortion, regulating the provision of RU-486, and prohibiting coerced abortions.
• New laws in Ohio, South Carolina, and South Dakota requiring that abortion providers offer a woman the opportunity to view an ultrasound prior to an abortion.
• Legislatures in Colorado, Maryland, and Michigan limiting the use of taxpayer funding for abortions and abortion counseling.
• Idaho lawmakers strengthening the state’s informed consent law and prohibiting coerced abortions.
• Meaningful funding of abortion alternatives in Louisiana, Missouri, Oklahoma, and Pennsylvania.

Conversely, Arizona Governor Janet Napolitano vetoed a ban on partial-birth abortion and a measure requiring parental consent before a minor may obtain an abortion, while Kansas Governor Kathleen Sebelius, in the face of pending criminal charges against late-term abortionist George Tiller and on-going investigations into the practices of Planned Parenthood, vetoed measures strengthening requirements for abortion clinics to report suspected child sexual abuse and enhancing the ability of prosecutors to enforce the state’s late-term abortion law.

A comprehensive review of this year’s legislative activity shows that the most popular state abortion-related legislation included:

• Abortion bans. These measures included bans on partial-birth abortions, post-viability abortions, and sex-selective abortions, as well as near-complete abortion bans that would take effect upon the reversal of Roe v. Wade.
• Parental involvement for abortion. The states were equally divided in considering parental notice and more protective parental consent measures.
• Informed consent and informed consent enhancements including ultrasound requirements, information on fetal pain, and prohibitions on coerced abortions.
• Ultrasound requirements. At least 18 states considered requirements that women be offered the option to undergo and view an ultrasound prior to an abortion.
• Limitations on state taxpayer funding for abortion. These limitations included measures limiting funding of elective abortions for Medicaid recipients, prohibiting the use of taxpayer funds for abortion counseling, and limiting the use of public facilities for the provision of abortions.

Similar measures are likely to be popular in 2009 along with legislation strengthening requirements for abortion clinics to report suspected child sexual abuse, providing taxpayer funding for abortion alternatives, and establishing minimum health and safety standards for abortion clinics.

While abortion advocates devoted the majority of their legislative efforts to opposing these common-sense measures, they also instigated attacks on the efforts of crisis pregnancy centers and sought to expand the availability of abortifacients including so-called “emergency contraception.” Moreover, acknowledging the dwindling numbers of physicians willing to perform abortions, they also introduced measures to allow nurses to perform abortions and to circumvent or limit the ability of individuals and institutions (including Catholic hospitals) to refuse to participate in abortions.

More critically, five states–Illinois, Minnesota, New Mexico, New York, and Rhode Island–introduced state versions of the federal Freedom of Choice Act, a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support, and to prevent states from enacting similar protective measures in the future.

a. Abortion Laws (General):

1. Constitutional Amendments:

Mississippi, Tennessee, and West Virginia considered constitutional amendments either conferring “personhood” on the unborn under the state constitution or explicitly recognizing that the state constitution does not provide a “right to abortion.”

2. Statutory Redefinitions:

Tennessee considered measures to define the term “inception of human life” to mean “the moment of conception.”

West Virginia considered a measure providing that when any body part of an unborn child is outside the womb, the child is “born” and is considered a citizen of the state.

3. Medical Emergency Exception:

A small number of states including Kentucky introduced measures amending the definition of “medical emergency” in state abortion-related laws and/or requiring written certification as to the nature of a medical emergency invoked to excuse full compliance with informed consent, parental involvement, and other laws.

b. Abortion Bans:

1. Delayed enforcement laws:

Were considered in at least 8 states, including Tennessee and Virginia.

2. Partial-birth abortion:

At least 11 states considered bans on partial-birth abortion, including Alaska, Arizona, Kentucky, Michigan, Tennessee, Virginia, West Virginia, and Wisconsin.

Arizona Governor Janet Napolitano twice vetoed legislation banning partial-birth abortion. After the first veto in April, legislators amended the measure to reduce the potential penalties and to permit a physician charged with violating the ban to seek the opinion of the Arizona medical board to determine the medical necessity of the questioned procedure. However, Governor Napolitano vetoed that measure in June.

Similarly, Michigan Governor Jennifer Granholm vetoed a measure allowing for civil actions against physicians who perform partial-birth abortions (except in cases of life endangerment).

3. Post-viability abortions:

At least 8 states including Florida, Georgia, Kansas, Mississippi, New Hampshire, New Jersey, South Dakota, and Washington considered limitations on post-viability abortions.

4. Ban on Sex-Selective Abortions:

Mississippi and West Virginia considered bans on abortions performed for sex selection.

c. Abortion Alternatives:

Several states considered measures providing meaningful funding to organizations providing alternatives to abortion. This is primarily accomplished either through direct funding or the issuance of “Choose Life” license plates.

1. Direct Funding:

At least 6 states including Louisiana, Missouri, Oklahoma, Pennsylvania, and Tennessee considered measures providing direct funding to pregnancy resource centers and others providing abortion alternatives.

Louisiana allocated $1 million to “alternative-to-abortion services.”

Missouri allocated funds to provide alternatives to abortion for women at or below 200% of the federal poverty level. The program will offer a range of services to women during pregnancy and for one year following birth. Program funding cannot be used for services related to family planning or abortion and will not be provided to organizations that offer abortions or abortion referrals.

Oklahoma enacted a measure earmarking Department of Health funds for abortion alternatives and authorizing the Department of Health to provide $40,000 to an “alternatives to abortion” fund.

Pennsylvania enacted two measures allocating $4.7 million to fund abortion alternatives programs and prohibiting nonprofit organizations receiving funding from performing abortion services or providing abortion counseling. Further, organizations receiving funding must maintain a strict separation from any organization providing abortion-related services.

2. “Choose Life” License Plates:

At least 4 states considered measures to offer the plate, including Florida, Michigan, Missouri, and West Virginia.

3. Other Alternative Funding:

Tennessee considered measures creating a “tax-me-more” fund to receive voluntary contributions earmarked for “abortion prevention.”

d. Abortifacients:

At least 6 states including Kentucky, Mississippi, Missouri, and Oklahoma considered measures regulating the administration and provision of abortifacients (primarily, RU-486).

The Oklahoma legislature overrode the Governor’s veto and enacted a measure requiring that the provision of RU-486 comply with the FDA’s protocol for the drug and mandating the reporting of complications associated with the drug. The measure also limits the provision of RU-486 to physicians.

In a unique move, the Missouri House of Representatives passed a measure (later rejected by the Senate) to classify RU-486 as a Schedule I controlled substance, preventing physicians from prescribing it and pharmacists from dispensing it.

e. Abortion Clinic Regulations:

1. General:

At least 16 states including Alaska, Florida, Georgia, Indiana, Maryland, Minnesota, Oklahoma, Virginia, and West Virginia considered measures establishing minimum health and safety standards for abortion clinics.

Virginia sought to regulate facilities performing 25 or more first-trimester abortions per year as “ambulatory surgical centers.”

2. Record-Keeping:

At least 5 states including Kansas, Michigan, Minnesota, Oklahoma, and South Carolina considered measures related to facility and patient record-keeping.

f. Freedom of Choice Act (FOCA):

Five states–Illinois, Minnesota, New Mexico, New York, and Rhode Island–introduced state versions of the federal Freedom of Choice Act or FOCA, a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support, and to prevent states from enacting similar protective measures in the future.

g. Funding Limitations:

1. Taxpayer Funding of Abortion:

At least 14 states including Alabama, Colorado, Georgia, Iowa, Maryland, Michigan, Minnesota, Missouri, Rhode Island, Virginia, and West Virginia considered legislation related to public funding of abortions.

As part of the state’s budget bill, Colorado again prohibited state family planning funds from going to organizations that provide abortion services.

Maryland reenacted existing limitations on abortion funding. Public funding is only available in Maryland in case of life endangerment, rape, incest, severe fetal abnormality, or when the women’s physical and mental health is at “grave risk.”

In Michigan, the state’s budget includes a prohibition on the use of state family planning funds for abortion services, including counseling and referrals.

2. Use of State Facilities:

At least 2 states including Georgia and Rhode Island considered measures to limit the use of public facilities such as hospitals for elective abortions.

h. Informed Consent and Informed Consent Enhancements:

1. General:

At least 20 states including Alaska, Colorado, Connecticut, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Michigan, Missouri, New Hampshire, New York, Oklahoma, Rhode Island, South Carolina, Tennessee, Washington, West Virginia, and Wisconsin considered legislation requiring informed consent and/or a reflection period prior to an abortion or strengthening existing requirements.

2. Coercion:

At least 7 states including Alaska (for minors), Idaho, Kansas, Missouri, Ohio, Rhode Island, Virginia, and Wyoming considered measure to prohibit coerced abortions.

Idaho enacted a measure prohibiting anyone from coercing a woman into having an abortion.

Part of an omnibus measure, Oklahoma now requires that abortion clinic personnel have a private session with a minor to ensure that her decision to seek an abortion is not the result of coercion and requires clinics to post notices informing patients that it is illegal to coerce a woman into an abortion.

Interestingly, Ohio considered a measure requiring abortion facilities to post a sign stating that it is a crime to cause or attempt to cause physical harm to a family or household member who is pregnant.

3. Fetal Pain:

At least 8 states including California, Indiana, Missouri, Virginia, and West Virginia considered measures requiring women considering abortion to be counseled about fetal pain.

4. Ultrasounds:

At least 18 states including Colorado, Florida, Kansas, Kentucky, Missouri, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Virginia, and West Virginia considered measures related to the use of an ultrasound prior to an abortion.

Ohio enacted a measure requiring abortion providers to offer a woman the opportunity to view an ultrasound and to obtain a copy of the image when an ultrasound is performed as part of the preparation for an abortion.

A new Oklahoma law requires that every woman undergo an ultrasound (abdominal or transvaginal depending on which method would produce the better image) at least one hour before an abortion may be performed. The person performing the ultrasound is required to describe the image to the woman, including whether limbs or internal organs are present and viewable. While the woman may “avert” her eyes, the law requires the image to be displayed so that she can see it.

South Carolina and South Dakota enacted measures requiring that a woman be offered an ultrasound and the opportunity to view the image prior to undergoing an abortion.

5. Spousal Notification:

West Virginia considered a measure requiring spousal notification for abortion.

i. Insurance Coverage for Abortion:

At least 5 states including California and North Carolina considered measures related to insurance coverage for abortion.

j. Parental Involvement:

1. Parental consent:

At least 12 states including Alaska, Arizona, Michigan, Mississippi, New Hampshire, Rhode Island, Tennessee, Virginia, and West Virginia considered measures requiring parental consent for abortion.

In Arizona, the Governor vetoed a bill that would have amended the state’s parental consent requirement, providing standards for judges to use when deciding whether to grant a minor’s request to waive the state’s parental consent requirement.

2. Parental notice:

At least 12 states including Alaska, Florida, Kansas, Massachusetts, New Hampshire, and West Virginia considered measures.

In Kansas, the Governor vetoed a measure that would have strengthened the state’s existing parental notification law: (1) requiring that any adult accompanying the minor show identification, declare in writing their relationship to the minor, and identify the father of the unborn child; (2) requiring the minor to show some form of picture identification proving identity and place of residence; and (3) if the minor chooses to seek a judicial waiver of parental notification, prohibiting any employee of an abortion provider or clinic from assisting her with the requisite court filings and proceedings.

k. Provider Requirements:

1. General:

At least 5 states including Arizona, Mississippi, Missouri, Tennessee, and Virginia considered measures imposing requirement as to who can perform surgical and/or medical abortions.

Arizona considered a measure to explicitly prohibit nurses from performing abortions.

2. Admitting Privileges:

At least 4 states including Indiana considered measures requiring abortion providers to have admitting privileges at a local hospital.

l. Reporting Requirements:

1. General:

At least 12 states including Kansas, Mississippi, Missouri, South Dakota, and West Virginia considered measures requiring the reporting of specified statistical information on abortions to state agencies.

As part of its new ultrasound requirement, South Dakota also required that abortion providers report the number of women who undergo an abortion after choosing to view an ultrasound.

Kansas Governor Kathleen Sebelius vetoed a measure that would have permitted injunctive relief for either a completed or about-to-be-performed illegal late-term abortion and would have added certain prosecutors (in addition to the Attorney General) to prosecute violations of existing prohibitions on late-term abortions.

2. Sexual Abuse Reporting:

At least 6 states including Kansas, Mississippi, Utah, and Virginia considered measures related to child sexual abuse and sexual abuse reporting laws.

Mississippi introduced AUL-developed legislation, The Child Protection Act, that sought to (1) require specified individuals to report suspected child sexual abuse and removed discretion in reporting, eliminating the need for reporters to conduct any investigation; (2) require a physician performing an abortion on a minor younger than 14 to provide a tissue sample to the state bureau of investigation or crime laboratory for use in possible legal action; and (3) created a civil cause of action against anyone who willfully circumvents the state’s parental involvement law by taking a minor out-of-state for an abortion.

Utah and Virginia enacted laws amending statutory rape laws.

3. Minors & Abortion:

At least 6 states including Alaska and Florida considered measures imposing additional reporting requirements for abortions performed on minors. The information sought included the number of abortions performed on minors, complications, and judicial waivers of parental involvement requirements.

m. Legislative Declarations:

New Mexico considered multiple legislative declarations condemning violence against abortion clinics.

iii. Prenatal Protection and Protection for Newly-Born

In 2008, legislatures continued, in significant numbers, to consider measures seeking to protect unborn child outside the context of abortion. These measures sought to protect both women and their unborn and newly-born children and to provide a variety of both criminal and civil remedies.

a. Protection of Unborn Victims of Violence:

At least 18 states including Alabama, California, Florida, Georgia, Hawaii, Illinois, Massachusetts, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and West Virginia considered measures providing protection to unborn victims of violence.

b. One Victim/Enhanced Penalty Laws:

Hawaii considered a measure making it a crime to assault a pregnant woman, but not recognizing the unborn child as a separate crime victim.

c. Use of Deadly Force to Protect the Unborn:

Oklahoma, Virginia, and West Virginia considered measures amending their penal codes to permit a woman to use deadly force to protect her unborn child.

d. Substance Abuse by Pregnant Women:

At least 26 states including Alabama, Arizona, Florida, Georgia, Illinois, Kentucky, Missouri, Utah, and Virginia considered measures to assist women and children impacted by prenatal drug and alcohol use.

Kentucky enacted a measure allocating $2 million over two years for substance abuse prevention and treatment of pregnant women.

Utah enacted a measure requiring substance abuse treatment programs receiving public funds to give priority admission to pregnant women and teenagers.

Virginia Governor Tim Kaine signed into law a measure that added emergency services personnel to a list of required reporters of suspected child abuse including cases of in utero exposure to controlled substances.

e. Fetal Death Certificates:

At least 8 states including New Hampshire, New York, Ohio, and Pennsylvania considered measures providing for fetal death and certificates of stillbirth.

New Hampshire established stillbirth certificates.

Ohio enacted the Grieving Parents Act, requiring a fetal death certificate and burial for the death of an unborn child.

f. Infant Abandonment:

At least 13 states including Alaska, California, Maryland, Nebraska, New Hampshire, Vermont, and Washington considered measures to define parameters under which an unharmed, healthy infant may be safely relinquished to medical or state authorities without fear of legal consequences.

Alaska Governor Sarah Palin signed into law a measure that provides immunity for a parent who leaves an unharmed infant no more than 21 days old with a police officer, medical personnel, hospital employee, and emergency services personnel. The infant can also be left with any person the parent feels will act in the infant’s best interest. Although the person receiving the newborn is required to ask about the infant’s identity and medical information, the parent is not required to provide the information.

Maryland enacted a measure extending the age limit at which an unharmed infant can be legally relinquished from 3 to 10 days.

Nebraska enacted a measure prohibiting the criminal prosecution of someone who relinquishes a child to an on-duty hospital employee.

Vermont enacted a measure permitting a person or facility receiving an infant to not reveal the identity of the person relinquishing the child unless there is suspected abuse.

g. Born-Alive Infant Protection:

West Virginia considered legislation protecting infants who survive an abortion and requiring that they be given appropriate medical care.

h. Wrongful Death:

At least 2 states including Indiana and New York considered measures providing for a civil wrongful death action for an unborn child.

iv. Contraception

Nearly a quarter of the states considered legislation expanding coverage for and availability of contraceptives including so-called “emergency contraception.”

a. Contraceptive Coverage:

At least 12 states considered 25 measures requiring insurance coverage for contraceptives including Hawaii, Illinois, Indiana, Louisiana, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and Washington.

Indiana enacted a measure creating a state health insurance program covering contraceptives.

b. “Emergency Contraceptives”/Plan B:

1. Emergency Room Mandates:

At least 13 states including Colorado, Hawaii, Michigan, Minnesota, Pennsylvania, West Virginia, and Wisconsin considered measures requiring emergency rooms to dispense Plan B on request and/or to provide information about emergency contraceptives to victims of sexual assault.

Minnesota enacted a measure requiring hospitals to provide emergency contraception to sexual assault victims, but providing an exemption if the victim has a positive pregnancy test.

Wisconsin enacted a measure requiring that a sexual assault victim receive “medically accurate and unbiased information” on emergency contraception, as well as the medication upon request from the hospital treating her injuries. The hospital is not required to provide the medication if the woman has a positive pregnancy test.

2. Collaborative Practice Agreements:

New York considered a measure that would allow a registered nurse or pharmacist to dispense emergency contraception under a collaborative practice agreement with a physician.

Further, no states introduced or considered measures limiting or restricting access to emergency contraceptives.

v. Healthcare Rights of Conscience

In 2008, approximately 70 measures related to healthcare rights of conscience were considered. This level of activity is consistent with what we have seen over the past few years. However, for the first time in recent years, bills seeking to compel conscience and to force providers to act in opposition to their personal beliefs outpaced protective measures. Nearly 60% of the legislation considered in 2008 was compulsion measures. Most of these compulsion measures were directed at individual pharmacists and pharmacies.

a. Comprehensive ROC Protection:

At least 9 states including Alabama, Hawaii, Illinois, Michigan, Oklahoma, Pennsylvania, Rhode Island, South Carolina, and Vermont considered legislation providing comprehensive protection for healthcare rights of conscience.

Over the governor’s veto, Oklahoma enacted a law allowing individual healthcare providers and individual medical facilities to decline to participate in abortions, destructive biotechnologies, and assisted suicide based on moral or religious beliefs. Specifically, medical institutions may refuse to provide personnel or facilities for abortion services, except in the case of a medical emergency.

b. Abortion-Related Protection:

At least 9 states including Illinois, Nevada, New York, North Carolina, Oklahoma, Rhode Island, and West Virginia considered measures to protect healthcare providers, facilities, and/or payers who conscientiously object to participating in abortion.

At least eight states including Alabama, Illinois, Nevada, Rhode Island, and West Virginia considered measures to allow individual medical facilities to refuse to allow abortions in their facilities. Further, at least 5 states including Alabama, Hawaii, and South Carolina considered legislation allowing insurers to decline to cover elective abortions.

Conversely, legislators in Colorado considered measures allowing the state government to take administrative control of hospitals that fail to provide such “essential” services as elective abortions, contraception, and sterilization.

c. Pharmacist-Only Protection:

At least 11 states including Indiana, Missouri, South Carolina, and West Virginia considered legislation to protect pharmacists and pharmacies that decline to stock and to dispense abortifacient drugs, including emergency contraceptives.

d. Compulsion Bills:

At least 12 states including Florida, Indiana, Michigan, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, and West Virginia considered measures to compel pharmacists and pharmacies to violate their consciences and dispense emergency contraceptives.

vi. Bioethics and Biotechnologies

Legislators in 28 states considered more than 80 measures related to biotechnologies. This level of activity represents a continuing and significant downward trend in legislation concerning these critical and emerging areas. The number of legislative measures related to biotechnologies has decreased by more than 80% since 2005 when more than 500 measures were introduced and considered.

a. Cloning:

At least 9 states including Alabama, Arizona, Connecticut, Illinois, Iowa, Louisiana, Nebraska, Ohio, and West Virginia considered measures related to human cloning.

Connecticut enacted a measure that appears to ban only so-called “reproductive cloning,” but not all forms of human cloning.

b. Destructive Embryo Research:

At least 8 states including Connecticut, Florida, Illinois, Minnesota, Nebraska, New Jersey, New Mexico, and Oklahoma considered measures banning or explicitly permitting destructive embryo research.

Nebraska enacted a law prohibiting state institutions from engaging in embryonic stem-cell research.

Oklahoma enacted a law allowing stem-cell research only if the research is performed “safely and ethically” using either adult stem cells or embryonic stem-cell lines created prior to August 2001.

Oklahoma lawmakers also defeated an attempt to place the Oklahoma Stem Cell Research and Cures Initiative, a voter initiative permitting the creation of human embryos for destructive research, on the fall ballot in the state.

c. Ethical Forms of Research:

At least 5 states, Colorado, Illinois, Michigan, Minnesota, and New Jersey considered measures promoting ethical forms of stem-cell research, including the use of umbilical cord blood and adult stem cells.

Colorado enacted a measure creating the Adult Stem Cells Cure Fund. The measure set standards for the collection of umbilical cord blood for those hospitals participating in donation programs. Further, under the measure, voluntary contribution may be designated on state income tax forms and an account for the proceeds has been created in the state treasury.

d. State Funding of Biotechnology:

A small number of states including Louisiana, Nebraska, and New Jersey considered measures prohibiting taxpayer funding of destructive embryo research.

Louisiana enacted a ban on taxpayer funding of human cloning and destructive embryo research. The measure explicitly permits the use of federal funds for research that complies with the terms of President Bush’s August 2001 Executive Order (permitting research on then-existing embryonic stem-cell lines).

Nebraska enacted a measure prohibiting state funding of human cloning and establishing a stem-cell research fund to support non-embryonic stem cell research conducted by institutions in Nebraska.

Meanwhile, several states including California, Florida, Illinois, and Minnesota considered measures directing state taxpayer funding for destructive embryo research.

Minnesota Governor Tim Pawlenty vetoed a measure providing taxpayer funding for destructive embryo research and research on cells derived from human cloning.

e. Chimeras:

Louisiana considered a measure to prohibit the creation of and research on human-animal hybrids.

f. Assisted Reproductive Technology:

At least 14 states considered measures related to assisted reproductive technology (ART) and related procedures, including in vitro fertilization (IVF) and the use of surrogates.

At least 9 states including Georgia, Iowa, Maryland, Massachusetts, Mississippi, New Jersey, Rhode Island, and Tennessee considered measures to require insurance coverage for ART.

At least five states considered measures to legally establish parentage in cases involving ART, including Alabama, California, Minnesota, Mississippi, and New Hampshire.

Alabama enacted a measure related to paternity, genetic testing, and “children of assisted reproduction.”

At least 4 states–California, Connecticut, New York, and New Jersey–considered legislation to regulate the ART industry. These measures concerned informed consent for IVF and the disposition of embryos.

Connecticut enacted a measure requiring, in part, that a person undergoing IVF treatments be informed about options with regard to the disposition of unused embryos (including donation to another person or for research).

Minnesota considered a measure regulating surrogacy agreements.

g. Embryo Adoption:

Indiana considered measures to permit the adoption of “abandoned” embryos.

h. Human Egg Donation:

New Jersey considered the Ovarian Health Protection Act, prohibiting the procurement or use of human eggs for research and experimentation.

vii. End of Life

In 2008, approximately 70 measures related to end-of-life issues were considered in 26 states. This reflects a slight decrease in activity in this area, but is generally consistent with what we have seen over the past 3 years.

a. Assisted Suicide & Euthanasia:

Making use of titles such as Death with Dignity and Compassionate Choices, at least 4 states including Arizona, California, Washington, and Wisconsin considered measures to legalize physician-assisted suicide.

California enacted a measure that, while not explicitly legalizing assisted suicide, requires physicians to counsel their patients on how to end their lives. Moreover, if patients elect to starve and/or dehydrate themselves to death, the physician must, if requested, provide material assistance by prescribing sedatives.

b. Advance Directives, Living Wills, Healthcare Powers of Attorney & Related Documents:

The vast majority of end-of-life measures considered in 2008 dealt, in varying ways, with advanced directives, “do not resuscitate” orders, and the proper appointment of guardians and healthcare agents. In 2008, 10 states enacted new laws dealing with advanced directives.

Arizona enacted a measure providing that a surrogate who is not the patient’s agent or guardian cannot make decisions to withdraw the artificial administration of food or hydration and providing means to secure a court order to ensure compliance with the new law.

California enacted a measure redefining requirements for “Do Not Resuscitate” orders.

Delaware enacted a measure enabling an agent, surrogate, or guardian of a patient to have full authority and standing under the Health Insurance Portability and Accountability Act (HIPPA) to act as the personal representative under the Act, even if an advance healthcare directive, surrogate confirmation, or guardianship order does not so expressly provide.

Florida enacted a measure delineating who may serve as a guardian-advocate for a developmentally-disabled person and defining rights and responsibilities for that advocate.

Kansas enacted legislation regarding appointments of guardians and conservators for impaired adults, exempting treatment “by prayer,” and providing alternatives for various healthcare powers of attorney.

Maryland supplemented the existing Healthcare Decisions Act by allowing an electronic signature on applicable documents.

New York enacted a measure authorizing a simplified advance healthcare directive form for persons receiving mental retardation and developmental disabilities services.

Further, New York enacted a second measure authorizing a surrogate decision-making committee to act as guardian of a mentally retarded person who otherwise has no other person to act as a guardian for the purpose of making a decision to withhold or withdraw life-sustaining treatment.

Utah amended the Advance Health Care Directive Act to provide a standard to be used by a surrogate in making a healthcare decision on behalf of a person who no longer has capacity to make his/her own health care decisions; to replace the existing “physician order for life sustaining treatment” form with a “life with dignity order;” to establish procedures and requirements relating to the order; and to describe who may witness the making or revocation of an advance healthcare directive.

Vermont enacted an omnibus measure providing standards for appointment of agents for impaired adults, “Do Not Resuscitate” orders, informed consent for appointment of healthcare agents, and background checks for guardians and agents.

Virginia enacted a law requiring the Department of Health to create and maintain a secure online central registry for advance healthcare directives that is accessible to licensed healthcare providers through a site maintained by the Department of Health.

c. Pain Management:

At least 5 states including Illinois, Kentucky, Massachusetts, New York, and Vermont considered measures to promote proper pain management for all patients, especially the terminally-ill. Some measures encouraged training in pain management, while others sought to create a study task force, enact a patient bill of rights to include the right to effective pain management, or impose annual reporting requirements.

Vermont enacted a measure requiring the state Department of Health to provide an annual report on end-of-life care and pain management.

d. Palliative Care:

At least 4 states including Connecticut, New Jersey, New York, and Vermont consider legislation to encourage training in and funding of palliative care.

e. Preventing Starvation and Dehydration:

Only one state–Mississippi–considered a measure establishing, in the absence of proper documentation to the contrary, a rebuttable presumption in favor of continued artificial food and hydration.

by J. Margaret Datiles
Former AUL Staff Counsel
 

During the 110th Congress, at least 97 bills and resolutions were considered in the areas of abortion, contraception, stem-cell research and cloning, artificial reproductive technologies, genetic counseling, healthcare rights of conscience, and the end-of-life.

Significantly, all existing pro-life appropriations provisions or “riders” (prohibiting or limiting the use of public funds and facilities for abortion and contraception domestically and abroad) were preserved in the First Session of the 110th Congress. These pro-life riders include the Hyde Amendment (prohibiting federal funding of abortion except in cases of rape, incest, or the life of the mother), the Mexico City Policy (prohibiting appropriation of U.S. family planning funds to foreign organizations that promote and perform abortion as a method of family planning) and the Kemp-Kasten Amendment (prohibiting federal funding of organizations that support or participate in the management of a coercive abortion program).

With the close of the 110th Congress and an Obama Administration fast-approaching, it is evident that existing pro-life policies are in danger of being overturned and that the challenges of enacting pro-life policies in the future will be intensified. For example, President-elect Obama has promised that his first act as president will be to sign Senator Boxer’s radical Freedom of Choice Act (FOCA), which would invalidate hundreds of common sense abortion regulations supported by the majority of Americans.

In addition to FOCA, we can expect to see other vigorous attacks on existing pro-life policies and efforts to enshrine abortion-on-demand in America. For example, all existing pro-life appropriations bill “riders” such as the Mexico City Policy and Hyde Amendment will be in danger of invalidation. There will be increased support for international policies to expand access to abortion and pro-abortion forces will push for the ratification of the United Nation’s Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which has been interpreted as condemning any abortion restriction as “discrimination.”

We can also expect greater efforts to legalize over-the-counter access of the morning-after pill for minors, a sharp increase in Title X funding for abortion providers such as Planned Parenthood, attacks on conscience protections issued by the Department of Health and Human Services, and the introduction of legislation that targets and imposes burdensome requirements on pregnancy resource centers.

An examination of both pro-life and anti-life measures introduced in the 110th Congress sets the stage for what we might see in the next Congress.

Abortion and Contraception

At least 65 abortion- and contraception-related bills and resolutions were considered by the 110th Congress. Notable pro-life bills considered by the 110th Congress included the Prenatal Nondiscrimination Act of 2008, which would prohibit discrimination against the unborn on the basis of sex or race and prohibit knowingly performing or financing race- or sex-selection abortion. Another significant pro-life measure was the Child Interstate Abortion Notification Act (CIANA), which would prohibit the illegal transportation of minors across state lines in order to circumvent abortion parental notification laws in a minor’s home state.

Notable anti-life bills included FOCA, which declared the “right” to abortion as a “fundamental right,” and prohibited the government from “denying or interfering” with a woman’s “right to choose,” thus wiping out all existing state and federal abortion regulations and prohibiting similar laws from being enacted in the future.

Other significant bills that posed threats to the sanctity of life included Senate Amendment 2719, which would have overturned the Mexico City Policy to allow U.S. family planning funds to flow freely to foreign organizations that promote and perform abortion as a method of family planning. Providing federal funds for abortion internationally underscored numerous anti-life bills.

Abortion Bills from the 110th Congress

Contraception Bills from the 110th Congress

Bioethics

At least 23 measures relating to stem cell research, cloning, in-vitro fertilization, and prenatal genetic counseling were considered by the 110th Congress. Notable pro-life bills included the Genetic Information Nondiscrimination Act (GINA), which prohibits employers and health insurers from discriminating against persons on the basis of their genetic information. GINA was signed into law on May 21, 2008. Another significant pro-life bill was the Prenatally and Postnatally Diagnosed Conditions Awareness Act, which requires physicians to provide expectant mothers and families with scientifically sound information on prenatally and postnatally diagnosed conditions and support services. Co-sponsored by Senators Brownback (R) and Kennedy (D), this measure received overwhelming bi-partisan support and was signed into law this October.

Notable anti-life bills included Senate Bill 5, the Stem Cell Research Enhancement Act of 2007, which would have allowing federal funding for destructive research on human embryonic stem cells. The measure was vetoed by President Bush.

Bioethics Bills from the 110th Congress

End-of-Life

At least five measures relating to end-of-life issues were considered by the 110th Congress. Notably, the Suzanne Gonzales Suicide Prevention Act of 2007 would have prohibited the use of interstate commerce, or any facility of interstate commerce, to teach a person how to commit suicide or to provide a person with resources to commit suicide. In addition, at least four bills involved the creation and use of advanced medical directives.

End of Life Bills from the 110th Congress

Rights of Conscience and Miscellaneous

Rights of Conscience and Miscellaneous Life-Related Bills from the 110th Congress

Conclusion

The 110th Congress was successful in advancing the cause for life, as all pro-life “riders” were retained and numerous pro-life measures were considered. This demonstrates Congress’ recognition of the importance and efficacy of incremental protective legislation in the areas of abortion and other life-related issues. However, in the coming months we can expect increased attention to FOCA and other efforts to sweep away existing pro-life policies and prevent the future passage of similar laws.

By Clarke Forsythe and Dr. Donna Harrison 

Thirty-five years after the Supreme Court legalized abortion in Roe v. Wade, women still do not know all of its health risks. The reasons for this are varied — a seriously inadequate abortion-reporting program at both the state and federal levels; obstruction by state and federal courts, as well as by abortion supporters such as Planned Parenthood, the ACLU and the Center for Reproductive Rights; and political resistance or indifference at the national Centers for Disease Control and Prevention and at state health departments. These obstacles make it difficult for researchers to obtain data in the United States, but this has been offset in recent years by medical studies from countries that do a better job of tracking data. Looking at the U.S. and international data combined show several well-documented medical risks from abortion. However, a January report by the Guttmacher Institute, formerly the research arm of Planned Parenthood, denies any significant health risk from abortion.

Here are four of the report’s claims that don’t tell the whole story.

The Claim:

The risk of short-term complications from abortion is “minimal.” In fact, the report claims “fewer than 0.3 percent of abortion patients experience a complication that requires hospitalization.”

The Truth:

This claim reveals only part of the picture, like a badly cropped snapshot. There is a vast difference between abortion “complications that require hospitalization” and abortion complications. Many serious complications are not necessarily handled by being admitted to a hospital, but rather by emergency-room procedures, which are considered outpatient. These may include serious interventions such as dilation and curettage (D&C), transfusions and intravenous antibiotics. Furthermore, Guttmacher’s statistics come from voluntary reporting by abortionists, and there are few legal requirements to report complications. In addition, few abortionists see or care for their own complications, because the local emergency room doctor or local obstetrician/gynecologist on call at the hospital handles most abortion complications. Mifepristone (RU486), which accounts for almost a third of early abortions, is particularly hazardous. There have been more than 1,300 “adverse events” or complications reported to the Food and Drug Administration. But because the FDA reporting system is completely voluntary, it is estimated that only 1 percent to 10 percent of actual “adverse events” ever get reported. The most serious hazards of RU486 are massive bleeding and life-threatening infections. As documented in studies in the Annals of Pharmacotherapy. Also, the drug is a powerful suppressor of glucocorticoid receptors, found all over the body but especially important in the innate immune system, which is responsible for fighting off infections as well as recognizing and destroying cancer cells throughout the body. RU486 is also a powerful suppressor of progesterone receptors, found throughout a woman’s brain and reproductive organs.

The Claim:

First-trimester abortions pose virtually no long-term risk.

The Truth:

Beyond short-term complications like hemorrhage and infection, there are also well-documented long-term complications of abortion, such as the increased risk of premature labor, the increased risk of placenta previa (a complication that causes excessive bleeding), the increased risk of suicide and violent death after abortion, as documented by Mika Gissler in the European Journal of Public Health. There are more than 49 studies worldwide documenting an increased risk of preterm birth. These are documented in a 2003 study in the Journal of the Association of American Physicians & Surgeons and in an October 2007 study in the Journal of Reproductive Medicine (JRM). Induced abortion increases preterm birth by 130 percent to 1,200 percent. The greatest increase is in the very preterm babies. Preterm birth, in turn, increases the risk of cerebral palsy by 38 times. The October 2007 study in the JRM found that $1.2 billion in health care is spent annually in the United States to treat women and children from the effects of preterm birth after abortion.

The Claim:

There’s no association between abortion and breast cancer.

The Truth:

The Guttmacher report relies on U.S. “panels” that have dismissed any link, which is curious given how political such panels can be. In the days of controversy over the relationship between tobacco and lung cancer, numerous governmental panels also concluded that no relationship existed. What Guttmacher fails to say is that numerous studies in the medical literature do show an association between induced abortion and subsequent breast cancer. A 1989 study by Holly Howe in the International Journal of Epidemiology found a 50 percent increased risk of breast cancer after abortion. In a 1994 study in the Journal of the National Cancer Institute, NCI researcher Janet Daling, who is personally “pro-choice,” found that “among women who had been pregnant at least once, the risk of breast cancer in those who had experienced an induced abortion was 50 percent higher than among other women.” The study in the January 2003 issue of the Obstetrical & Gynecological Survey (OGS) concluded that if an 18-year-old finds herself pregnant for the first time, her decision to abort almost doubles her risk of breast cancer. But Daling’s most alarming finding was that teenagers with a family history of breast cancer who procure an abortion face a risk of breast cancer that is incalculably high. All 12 young women in her study with a family history were diagnosed with breast cancer by age 45.

The Claim:

Abortion poses no hazard to a women’s mental health.

The Truth:

National studies from Finland, Australia and the United States have found a two- to seven-fold increased incidence of death from suicide, homicide and violent death in women who have had abortions compared with women who have carried to term. A 2005 Australian study in the Journal of Child Psychology & Psychiatry concluded that “young women who aborted were at a higher risk for various mental health problems compared to women who carried to term or who were never pregnant.” The strategy by abortion proponents has been pretty simple: If you prevent data from being collected, researchers have nothing to analyze and no risks to report. Women hear nothing but good news. But the cause for life in America will not make much progress until the health risks of abortion are fully documented and fully reported to women before abortion. The answer is part public policy, public education, and medical education. States should require that women get full, detailed information about the medical risks. Women must be informed so that they can personally ask their physicians. And women who have had abortions need to ask their doctors about future medical screening.

Clarke Forsythe is the Senior Councel of Americans United for Life. Dr. Donna Harrison is a Michigan obstetrician/gynecologist and President-Elect of the American Association of Pro-Life Obstetricians and Gynecologists

This article originally appeared in Our Sunday Visitor (OSV) March 2, 2008. Used by Permission.

By Maggie Datiles
Staff Counsel
 
Abortion Law Before Gonzales

Abortion Law Under Gonzales

The former majority of the USSC established an almost absolute “right” to abortion from conception until birth, leaving the states only minimal room to enact abortion regulations. USSC abortion decisions raised obstacles to passing meaningful abortion regulations, making it extremely difficult for abortion regulations to withstand constitutional scrutiny.

The new USSC majority knocked down some of the obstacles set up by the former majority, allowing the states to enact more meaningful abortion regulations that make medical sense and that would withstand constitutional scrutiny.

The USSC continually expanded the scope of Roe v. Wade, allowing the right to abortion to extend to abortions performed during birth.

Gonzales set up a legal fence against abortions during the process of birth. Gonzales drew a legal line between abortion and infanticide.

In upholding the Federal Partial-Birth Abortion Ban, Gonzales “defines the line between potentially criminal conduct on the one hand and lawful abortion on the other.”² The decision drew “a bright line that clearly distinguishes abortion and infanticide.”³

Abortion regulations were severely limited in order to satisfy the harsh standard set forth in Stenberg v. Carhart.

The Stenberg v. Carhart standard was replaced with Planned Parenthood v. Casey’s more reasonable and flexible “substantial obstacle” standard.

The Gonzales court applied Casey’s “substantial obstacle” standard, stating: “Under the principles accepted as controlling here, the [Partial-Birth Abortion Ban] Act, as we have interpreted it, would be unconstitutional if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”⁴

All abortion regulations were required to contain a maternal “health” exception.

Stenberg requires a health exception unless “there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women.”5 Such a standard sets up an absolute “zero tolerance policy” which is “too exacting a standard to impose on the legislative power,” and leaves “no margin of error for legislatures to act in the face of medical uncertainty.” Under such an unreasonable and impossible standard, an abortion regulation would be automatically struck if merely “some part of the medical community were disinclined to [agree with the regulation].”⁶

Abortion regulations are only required to contain a maternal “health” exception if maternal health is actually implicated. When maternal health is not implicated, only an exception to save the life of the mother is required. In the absence of a medical consensus on whether or not maternal health is implicated, deference will be given to the legislature.

An abortion regulation “is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.”⁷

“Medical uncertainty does not foreclose the exercise of the legislative power in the abortion context any more than it does in other contexts.”⁸

The maternal “health” exception allows abortion for virtually any reason whatsoever, because there is no real limitation on what is considered to be a legitimate “health” reason. “Health” is defined as “all factors – physical, emotional, psychological, familial, and the woman’s age- relevant to the well-being of the patient.”⁹

This vaguely-defined, all-encompassing health exception swallows the law, and is used by abortion advocates as a “trump card” to strike down, prohibit, or limit any meaningful abortion regulations.

The maternal “health” exception is narrowed, thereby preventing excessive abuse of the exception by abortion advocates, and limiting their use of the exception as a “trump card.”

The legislature is denied proper deference in the abortion context. When the constitutionality of an abortion regulation is challenged in court, the burden is on the state to justify the regulation and prove that it is constitutional under the strict Stenberg standard.

Proper legislative deference is given in the abortion context. When the constitutionality of an abortion regulation is challenged in court, the burden is on the plaintiff/challenger to prove that the regulation is unconstitutional under Casey’s “substantial obstacle” standard.

The “elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” This “longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion.”¹⁰

Virtually no recognition is given to the state’s legitimate interest in potential human life, in violation of the standard set forth in Roe and Casey.

Proper recognition is given to the state’s legitimate interest in potential human life, as is required by Roe and Casey.

Gonzales referred to the following language from Casey: “Roe’s essential holding . . . has three parts. First is the recognition of the right of the woman to have an abortion before viability . . . Second is a confirmation of the State’s power to restrict abortions after fetal viability . . . And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus . . . These principles do not contradict each other; and we adhere to each.”¹¹

The Gonzales opinion continued, asserting: “The three premises of Casey must coexist.” The State’s interest in potential human life “from the inception of the pregnancy . . . cannot be set at naught.”¹²

The Court in Gonzales noted that Casey “confirms that State’s interest in promoting respect for human life at all its stages in the pregnancy.”¹³

Facial challenges to strike an abortion regulation as a whole are encouraged and heard by the courts.

Facial challenges are discouraged from being heard by the courts, and as-applied challenges to abortion regulations are encouraged.

“[F]acial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.”¹⁴

“[A]s-applied challenges are the basic building blocks of constitutional adjudication.”¹⁵

The Partial-Birth Abortion Bans of over 30 states were struck as unconstitutional as a result of the USSC’s ruling in Stenberg. The states were left with no guidance on how to pass a Partial-Birth Abortion Ban that would withstand constitutional scrutiny.

Gonzales upholds the Federal Partial-Birth Abortion Ban, thereby opening the door to the enactment of similarly-drafted state Partial-Birth Abortion Bans that will be upheld as constitutional by the courts.

Roe and Casey are constantly cited as binding precedent.

Roe and Casey are not cited in Gonzales as binding precedent.

Informed consent regulations and other regulations designed to discourage abortion and encourage women to carry their pregnancies to term are constantly challenged and subjected to severe limitations.

Gonzales specifically recognizes the need for informed consent regulations and the severe adverse emotional effects of abortion, and acknowledges the state’s authority to enact regulations that are may have the effect of encouraging women to carry their pregnancies to term.

The abortion decision is “a decision so fraught with emotional consequence” that “[s]evere depression and loss of esteem can follow.” In light of this, the state “has an interest in ensuring so grave a choice is well informed . . .  It is a reasonable inference that a necessary effect of [an informed consent regulation] and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of later-term abortions.”¹⁶

The public has a poor understanding of both the dangerously expanding scope of Roe’s “right” to abortion, and of the gruesome nature of the partial-birth abortion procedure.

Gonzales generated national attention, and educated the public on both the expansive scope of Roe’s “right” to abortion, and to the gruesome nature of the partial-birth abortion procedure.

Gonzales described the partial-birth abortion procedure as “a brutal and inhumane” procedure “in which a fetus is killed just inches before the completion of the birth process.”¹⁷

Partial-Birth Abortion Bans were considered to be unconstitutional violations on a woman’s right to abortion.

The Federal Partial-Birth Abortion Ban is not an unconstitutional violation of a woman’s right to abortion. It did not affect a woman’s right to abortion in any way. Rather, it merely specified the legal methods of abortion.

The state “may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”¹⁸

“The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.”¹⁹

Authoritative medical evidence of the physical, psychological, and emotional risks of abortion are ignored.

Authoritative medical evidence of the physical, psychological, and emotional risks of abortion are respected and considered.

Testimony by anti-abortion physicians is disregarded and not given adequate consideration, even if authoritative medical data is presented.

Testimony by anti-abortion physicians is respected and given adequate consideration when based on authoritative medical data.  

Endnotes

1. Gonzales v. Carhart, 127 S.Ct. 1610 (2007).

2. Id. at 17.

3. Id. at 23.

4. Id. at 22 (internal quotations omitted).

5. Id. at 14 (internal quotations omitted)

6. Id. at 28-29.

7. Id. at 29.

8. Id. at 27.

9. Doe v. Bolton, 410U.S. 179, 192 (1973).

10. Gonzales, at 20.

11. Id. at 15 (internal citations omitted).

12. Id. at 23.

13. Id. at 26.

14. Id. at 29.

15. Id.

16. Id. at 24.

17. Id. at 22.

18. Id. at 23.

19. Id. at 26.

by Clarke D. Forsythe
Senior Councel

In June, certain anti-abortion activists bought full-page newspaper ads featuring an “open letter” criticizing James Dobson, founder of Focus on the Family, for his “approval” of the Supreme Court’s April 18 decision in Gonzales v. Carhart, which upheld the constitutionality of the federal Partial- Birth Abortion Ban Act (PBABA) of 2003. The crux of the criticism seems to be that the Gonzales decision was “brutally wicked,” because the Court didn’t prohibit all abortions (or at least D&E abortions). The impact of the “open letter” was multiplied by newspaper reports about the letter in the Washington Post on June 5 and the Los Angeles Times on June 6.

The letter’s criticism of Dobson (and other organizations) for publicly supporting the Court’s decision contained innumerable misstatements, including misunderstandings about the proper role of the Supreme Court, how the Supreme Court operates, why the PBABA was written, the limits of the PBABA, the Court’s abortion doctrine, the records of Justices Scalia and Thomas, the language of the Gonzales opinion, and the future implications of the Court’s decision. Since the “open letter” was published for millions to read, its numerous misstatements deserve a public correction.

The PBABA served several purposes, some of which were fulfilled only with the Gonzales decision. First, by highlighting a particular form of abortion, the PBABA brought national public attention to the gruesomeness of abortion more than all previous educational efforts (as a recent study by Overbrook Research and previous polling data suggest). Second, by drawing a comparison, it showed the cruelty of partial-birth abortion (PBA) and D&E abortions, as even the pro-abortion justices implicitly conceded. Third, the Act served as a legal fence between abortion and infanticide, to keep the abortion license from expanding into out-and-out infanticide. (Though the Roe decision drew the constitutional line between abortion and infanticide at birth, Roe did nothing to prevent abortionists from erasing that line through new methods or technology.) Fourth, the Act and the debate surrounding it helped the public better understand the true scope of Roe — that Roe did not legalize abortion simply in the “first trimester,” but up to birth. Fifth, the Act served as a vehicle to prompt a landmark Supreme Court decision gutting (if not explicitly overruling) the Court’s terrible decision in 2000 in Stenberg v. Carhart. Other benefits of the Act could be identified.

In their criticism, the authors of the “open letter” are misguided in several important ways.

First, the critics do not understand why the Act was written with the limits it has. The bill was originally written against the severe constraints of the Court’s pro-abortion precedents, a five-justice pro-abortion majority (Justices Breyer, Ginsburg, Stevens, Souter, and O’Connor), and the Court’s Stenberg decision of 2000. The pro-abortion majority of justices had declared an almost absolute “right” to abortion from conception to birth, and had previously struck down legislative attempts to prohibit another type of abortion. While precluding any prohibitions between conception and birth, the pro-abortion justices left Congress and the states only minimal room to enact regulations (not prohibitions) in the margins around the abortion license. After prohibitions on PBA were enacted in 30 states, the pro-abortion majority struck down all of those state laws in Stenberg, further raising the obstacles to any state or federal abortion regulations. Sponsors in Congress then redrafted the Act more narrowly to fit within the constraints of Stenberg while continuing the public debate.

To accomplish the limited but significant goals of the Act under severe constraints, the Act had to define the difference between partial-birth abortion and D&E abortion (which the pro-abortion majority in 2000 supported). The exceptions or limits in the bill were not the preference of the congressional sponsors but were compelled by the pro-abortion Supreme Court majority of Breyer, Souter, Stevens, Ginsburg, and O’Connor. Even if the federal PBABA may be “so narrow that it won’t save many babies” (a questionable premise), that cannot be laid at the door of the authors but is a direct result of the Court’s pro-abortion majority. The Act could not effectively touch the D&E procedure because of Stenberg. While the margins that the pro-abortion majority has drawn around the abortion license may be irrational, it’s not irrational for the states (or Congress) to attempt to fence in the abortion license along the margins the Court has drawn. Yes, the PBABA seems ineffectively narrow, but it is the pro-abortion justices’ line-drawing that forced the federal PBABA to be so narrow.

Second, the critics do not understand how the Supreme Court operates, and fail to understand the dynamics of majority and minority blocs within the nine-justice Court. A majority of five rules and decides cases. Between the time the PBABA was written and the time it was heard by the Court, the justices had changed. Justice Kennedy became the decisive fifth vote, and the decisive fifth vote effectively decides how a majority opinion is written. Justice Kennedy was in the middle of the nine — supporting “abortion rights” before viability, but supporting a prohibition on PBA. When the case was argued before the Court in November 2006, parties on both sides believed Kennedy to be the decisive fifth vote for either upholding the PBABA or striking it down. By voting to uphold the Act, Kennedy largely determined the language of the opinion. Because of Kennedy’s partial support for abortion, Chief Justice Roberts and Justices Scalia, Thomas, and Alito were constrained in shaping the outcome of the opinion.

The critics imply that Roberts, Scalia, Thomas, and Alito should have abstained and walked off the Court, rather than join the limited result with Justice Kennedy. This would have resulted in a 4-1 pro-abortion result, with Justices Breyer, Ginsburg, Souter, and Stevens allied against Justice Kennedy as the sole dissenter, leaving constitutional law in a decidedly more proabortion slant, hostile to any regulation. Such a 4-1 decision would have expanded abortion rights even further. The critics suggest that this would have been better, without explaining why or how.

In the American political system of majority rule, “opting out” of the judicial or political process merely creates or strengthens a pro-abortion majority and eliminates forms of legal or political action that challenge that pro-abortion majority. Prudence compels us to be engaged in the system of majority rule. While some may opt out of the political and legislative process, like the Garrisonians of the 1840s, their conscience cannot dictate a similar course for others, especially when prudential engagement is possible and cooperation in evil can be avoided.

Third, the critics extract certain passages from Justice Kennedy’s opinion and read them out of context. Justice Kennedy’s opinion for the majority is divided into five parts. Part I simply distinguishes PBA from D&E abortions and describes the history of the litigation. Part II applies the legal standards from the 1992 Casey decision instead of the harsher standards from the 2000 Stenberg decision. Part III examines the language of the federal PBABA in detail, its scope and purposes, and rejects the charge that the PBABA is unconstitutional. Part IV affirms that the legal line established by the PBABA is constitutional under Casey and — what the critics most seriously miss — responds to the dissent of Justice Ginsburg, often without explicitly referring to her dissent. Part V concludes that the facial challenge to the PBABA should not have been heard by the federal courts.

The passages in the Kennedy opinion quoted out of context are not intended to approve of abortion but to respond to the contention in the Ginsburg dissent that the PBABA is so narrow (by focusing on one procedure) that it won’t “save any babies.” (Ginsburg’s charge is, of course, ironic — if not hypocritical — since she was part of the pro-abortion majority on the Court that so broadly defined the abortion “right” as to push permissible regulations to the narrow margins around the “right.”)

For example, when Kennedy writes that the “medical profession . . . may find different and less shocking methods to abort the fetus,” he’s responding to Ginsburg’s contention that the bill will have no effect. While Kennedy observes that abortionists “may prefer not to disclose precise details of the means” of abortion, he turns around and affirms that legislation can require that women get full information. The justices in the majority do not “endorse” an “injection that kills the fetus.” They do not endorse other forms of abortion; they merely acknowledge that the bill leaves some abortions unprohibited. They did not “concur optimistically” that other forms of abortion could replace PBA; they merely describe the limits of the PBABA.

Likewise, by acknowledging that the federal statute is limited in scope to certain abortions (because of the constraints of Stenberg), the justices do not thereby “endorse” the limited scope; they uphold it as constitutional. When the justices quote the statutory language, they do not endorse one abortion or another. They do not “rule” that abortions unprohibited by the statute “are legal.” The justices do not “approve” abortions that the statutes do not prohibit. While the critics claim that the justices did not “grant authority to save the life of even a single child,” they did uphold a statute that established a legal fence against abortions during the process of birth. These statements, in context, are either simple descriptions of the language and limits of the PBABA or responses to Justice Ginsburg’s dissenting accusations that the statute would do nothing.

If there was any remaining confusion about the meaning of these passages in Justice Kennedy’s opinion, the fact that Justices Scalia and Thomas joined Kennedy’s opinion should have been enough to allay pro-life confusion, given their record of over 20 years of opposition to Roe. Thomas and Scalia obviously saw no necessary inconsistency between their joint concurring opinion (that the Constitution contains no right to abortion) and Kennedy’s opinion. In effect, Justices Thomas and Scalia said (by joining Kennedy’s opinion) that they agree that nothing in the Constitution prohibits the PBABA, but they also said (with their separate opinion) that they would go farther and throw out Roe entirely. Unfortunately, the critics don’t give Scalia and Thomas the benefit of the doubt; instead, they attribute to Justices Scalia and Thomas pro-abortion attitudes that are incomprehensible in light of their consistent opinions opposing Roe.

Fourth, the critics impugn Justices Thomas and Scalia for their established position that abortion is a matter to be decided by the people at the state level because the Constitution contains no right to abortion. Whether one agrees or disagrees with Thomas and Scalia, their position is simply that the framers of the Constitution in 1787 left the abortion issue to be decided by the states as it had been since colonial times, and that the framers of the 14th Amendment after the Civil War did not intend to take this authority away from the states. It is not “legal positivism” to believe that the Constitution’s framers left abortion policy to the states. It is simply a strict reading of the language of the Constitution and of the distribution of powers between the state and federal governments. Since there is no doubt that the framers of the 14th Amendment did not explicitly address abortion or the unborn, the position of Justices Thomas and Scalia is entitled to respect, even if it is respectful disagreement.

Fifth, the critics ignore the broader implications of the Gonzales decision for the future. The implications were certainly clear to abortion advocates. Nancy Northup, president of the Center for Reproductive Rights, was quoted as saying within days of the decision: “We are going to see a whole new onslaught of restrictions on abortions coming out of this decision.”

Sixth, the critics assume that the Court can or should redraft federal laws to more fully prohibit a social evil. That’s not what justices should do in reviewing the constitutionality of congressional laws. That’s the role of the legislature, not judges, as it is with any criminal law. The justices were called upon to decide whether the federal PBABA was consistent with the Constitution, not whether it was fully just or fully moral. It is not the proper role of Supreme Court justices to strike down legislation that is not “fully just” or “fully moral.” Keeping the justices within that limited role is necessary to preserve self-government. Even natural law does not vest judges with a freewheeling power of judicial review to rewrite or strike down laws. As Princeton professor Robert George has written:

The Constitution . . . places primary authority for giving effect to natural law and protecting natural rights to the institutions of democratic self-government, not to the Courts, in circumstances in which nothing in the text, its structure, logic, or original understanding dictates an answer to a dispute as to proper public policy. It is primarily for state legislatures, and, where power has been duly delegated under the Constitution, to the Congress to fulfill the task of making law in harmony with the requirements of morality (natural law), including respect for valuable and honorable liberties (natural rights).

Seventh, the critics completely discount the morality and effectiveness of a policy of legal containment of a social evil when prohibition is not possible. The PBABA established a fence against the abortion license. Laws can establish moral and effective fences around a social evil when the evil cannot be completely prohibited.

Imagine, for example, that you just bought a house. You move in and walk out the back door to discover two vicious pit bulls, belonging to your neighbor, roaming the back yard. How do you protect your two young children? However much you might like to shoot the pit bulls, you decide to build a fence around your yard to protect your children. Are you thereby complicit in the care and feeding of your neighbor’s pit bulls — because you didn’t shoot them? Most people would recognize that they aren’t complicit, because countervailing legal authority and obstacles establish where the fence can be built and prevent them from doing more than build the fence. Prudence helps to determine how and where the fence can and should be established.

Containment of a social evil is a moral and prudent objective when the evil cannot be completely prohibited. The morality and effectiveness of such fences is evident in history. William Wilberforce and his allies erected legal fences around the slave trade between 1787 and 1807, when they could not completely prohibit it; those fences reduced the slave trade substantially before the final push of 1805-07. The Whigs and Republicans sought to erect legal fences around slavery in the 1840s and 1850s, when they could not completely prohibit it. Though we think of fences as static, they can be dynamic in provoking public awareness of or opposition to the social evil. It was Republican Party support for the fence against the expansion of slavery into the western territory that provoked Southern secession during the winter of 1860-61.

Eighth, the critics shortchange the social and legal impact of abortion regulations in general and the PBA bill and debate in particular. A series of statistical analyses by Professor Michael New, published by the Heritage Foundation, has analyzed the impact of state regulations on abortions during the 1990s, and largely attributes the 17-19 percent drop in abortions in the 1990s to such regulations.¹ In addition, a recent study of public opinion over the past decade by the independent firm Overbrook Research, attributes much of the positive change in the pro-life direction to the PBA bill and public debate.

All of the critics’ misunderstandings have a common source in imprudence. Prudence is a word that, unfortunately, has fallen out of our vocabulary. Prudence is the preeminent of the four cardinal virtues. It means practical wisdom and focuses on effective action. It is highly valued in the Greek, Roman, Christian, and Stoic traditions and repeatedly praised in Scripture. When it comes to politics, prudence asks four questions about proposed action: Is the goal a good one, do we exercise wise judgment about what’s possible in the circumstances, do we effectively connect means to ends, and do we preserve the possibility of future improvement when all of the Good cannot be accomplished now? In exercising wise judgment about what’s possible in the circumstances, the moral and intellectual virtue of prudence requires, among other things, that we accurately understand the cause of obstacles that impede our pursuit of the Good and that we devise effective solutions to those obstacles. The consistent error throughout the “open letter” is a failure to understand the political, legal, constitutional, and institutional obstacles to legal protection of the unborn. Because the critics do not have the patience or objectivity to understand the obstacles, they cannot hope to devise any effective solution to them, with the result that they misdirect their criticism from the pro-abortion justices to those whom they should recognize as their allies in the cause for life.

Notes

1. New, Michael J. 2004, “Analyzing the Effect of State Legislation on the Incidence of Abortion During the 1990s.” Heritage Foundation Center for Data Analysis Report #04-01 (http://www.heritage.org/Research/Family/cda04-01.cfm);

New, Michael J. 2006, “Using Natural Experiments to Analyze the Impact of State Legislation on the Incidence of Abortion.” Heritage Foundation Center for Data Analysis Report #06-01 (http://www.heritage.org/Research/Family/cda06-01.cfm);

New, Michael J. 2006, “Getting it Wrong: How The New York Times Misinterprets Abortion Statistics and Arrives at Incorrect Conclusions.” Heritage Foundation Center for Data Analysis Report #06-05 (http://www.heritage.org/Research/Family/cda06-05.cfm);

New, Michael J. 2007, “Analyzing the Effect of State Legislation on the Incidence of Abortion Among Minors.” Heritage Foundation Center for Data Analysis Report #07-01 (http://www.heritage.org/Research/Family/cda07-01.cfm).

This article originally appeared in the Fall 2007 issue of Human Life Review. Used by Permission. For a free sample issue of Human Life Review, call 212-685-5210 or visit www.humanlifereview.com.

By Mailee R. Smith
Staff Counsel, Americans United for Life

In the last several years, the “usual suspects” in the pro-abortion movement have been infesting other nations with their pro-choice rhetoric. One need only peruse the first page of the Center for Reproductive Rights’ website to see headlines such as “Center for Reproductive Rights Denounces Chilean Constitutional Tribunal’s Decision to Ban Distribution of ‘Morning-After Pill’ in Public Facilities” and “Filipino Women and Men Sue Manila Mayor for Ban on Contraception.” It is clear that the battle lines are now being drawn in countries far from our U.S. Supreme Court’s jurisdiction. Thus, it is becoming all the more important for the pro-life movement to shift to a more global focus, and support our pro-life brothers and sisters in other nations as they wage a war which has been litigated in this country for 35 years. We have much to offer from our wins and our losses.

Increasingly the pro-aborts’ attention has turned to Central and South America, and specifically Mexico. In 2006, the Center for Reproductive Rights won a lawsuit before the Inter-American Commission on Human Rights, in which the Mexican government agreed to guarantee access to abortion in the case of rape. During the course of the lawsuit, the pro-abortion group Human Rights Watch recommended punishing doctors by revoking their licenses if they refuse to perform abortions on moral grounds.

But this victory for the pro-choice movement was not enough. It was not enough to require access to abortion for rape victims. No, these pro-choice militants have only one thing in mind: unrestricted access to abortion as a “fundamental human right.”

The Mexican Example: The Law of Legal Interruption of Pregnancy

After the Center for Reproductive Rights won its initial victory, it wanted more. So in April 2007, Mexico City lawmakers passed the Law of Legal Interruption of Pregnancy, a law legalizing abortion on demand in the first trimester for city residents. City hospitals are now required to perform abortion on demand in the first 12 weeks of pregnancy, and private abortion clinics are allowed within Mexico City.

Fortunately, the law currently only affects Mexico City itself; elsewhere in Mexico, abortion remains illegal except in the cases of rape, incest, or severe fetal birth defects. However, it is feared that passage of this law will trigger abortion legislation throughout the rest of the country, and into other neighboring countries as well — countries where pro-abortion groups like CRR are already on the ground and running. The law has also paved the way for the legalization of euthanasia, an effort already underway in Mexico.

Support for the law is divided within the City itself, but approximately 70 percent of citizens in the rest of the nation are opposed to the law. Response from the Catholic Church, in a country where 90 percent of the population is Catholic, is strong. The bishops warned that Catholic legislators would face excommunication if they voted in favor of the bill. The Cardinal in Mexico City has led demonstrations, and the archdiocese has issued a statement that any doctors or nurses who perform abortions will face excommunication. In addition, Pope Benedict XVI sent a letter in support of the Bishops’ efforts.

Significant here is that the new law violates the Mexican Constitution, which states that human life must be defended “from conception until its natural end.” Much to the rage of the City’s pro-abortion lawmakers, the nation’s executive branch — led by the attorney general and the president of the National Human Rights Commission — initiated a lawsuit before the Mexico Supreme Court arguing that the law violates human rights and other constitutional provisions.

In order for the new law to be struck down, 8 of the Court’s 11 justices must agree.

Since the inception of the lawsuit, groups on both sides of the issue, including Americans United for Life (AUL), have appeared and filed either written and/or oral statements. Hearings are scheduled to be heard by the Court for months, with the next round beginning in November. It is a measure that the Mexican press has labeled “unprecedented,” and it has continually been referred to as Mexico’s Roe v. Wade.
Abortion Hurts Women: Sharing What We’ve Learned Over the Last 35 Years

Since 1973, numerous medical studies have demonstrated that abortion is not only fatal for the unborn child, but it is also harmful for the woman. While our Supreme Court did not have the benefit of investigating these studies when considering Roe v. Wade, the Supreme Court in Mexico is in a position to be more fully informed of the implications abortion has one women’s health.

In its submission earlier this spring to the Mexico Supreme Court, AUL filed the following medical arguments:
1) Abortion Causes Physical Harm
There are both immediate and long-term risks of the abortion procedure. Immediate (and undisputed) risks include blood clots; incomplete abortions, which occur when part of the unborn child or other products of pregnancy are not completely emptied from the uterus; infection, including pelvic inflammatory disease and infection caused by incomplete abortion; and injury to the cervix and other organs, including cervical lacerations and incompetent cervix — a condition that affects subsequent pregnancies. In addition, at least one out of every 500 abortions in the United States results in a perforated uterus.

Long-term risks include risks to subsequent pregnancies. For example, women who abort face an increased risk of pre-term birth in a subsequent pregnancy — which is the leading cause of infant mortality in the United States. In fact, a 2005 study demonstrated that women who abort are 70 percent more likely than women who do not abort to deliver a subsequent child before 28 weeks gestation. The chance of subsequent pre-term birth increases with each abortion a woman has.

Abortion is also a risk factor for placenta previa in subsequent pregnancies. Placenta previa is a pregnancy complication in which the placenta blocks the cervix and causes excessive bleeding.

Further, while the direct link between abortion and breast cancer is disputed, it is undisputed that a woman who aborts her first pregnancy loses the protective effect that pregnancy gives a woman against developing breast cancer.
2) Abortion Causes Psychological Harm
Just as the U.S. Supreme Court acknowledged in Gonzales v. Carhart, “[s]evere depression and loss of esteem” can follow the abortion decision. Indeed, numerous studies have examined the effect abortion has on the mental state of women and confirm that abortion poses drastic effects, including elevated rates of severe depression, anxiety, and other mental disorders.

These findings are alarming, because depression is a known risk factor for suicide. In addition, such mental disorders are also linked to subsequent drug and alcohol abuse. In fact, one study demonstrated that women who never abused drugs before their abortions are 4.5 times more likely to abuse drugs after abortion. Another study stated that the use of drugs other than marijuana was 6.1 times higher among women who had abortions than woman who did not have abortions.
3) Abortion Causes Death
In addition to the deaths caused by the immediate and long-term physical risks of abortion, women who obtain abortions also face an increased risk of death “unrelated” to the physical harms of abortion. Numerous studies have revealed that women who are abort are substantially more likely to commit suicide later in life than women who carry to term. For example, a study in Finland demonstrated that women who abort are 6.5 times more likely to commit suicide than women who continue pregnancy. A study in California demonstrated that women who abort are 3.1 times more likely to commit suicide than women who continue pregnancy.

Women who abort are also at an increased risk of death from natural causes. For example, increased anxiety has been linked to heavier smoking habits, which in itself carries drastic health risks. In addition, depression has been linked to heart disease. A study in California demonstrated that women who abort are three times more likely to die of circulatory diseases (heart disease) and five times more likely to die of cerebrovascular disease than women who continue pregnancy.

Conclusion

The Justices of the Mexico Supreme Court do not have to look far to see these statistics played out in real life. In the year since the law’s passage, 6,400 abortions have been performed. Twenty-two women have been injured, and eight women have died from complications related to their abortions. While the law contains a clause that girls under the age of 18 must obtain parental consent before abortion, at least one of the fatalities was a minor.

Thus, an effort that was claimed to “help” women is in actuality killing women as well as their unborn children. The irony of this has not gone unnoticed by city lawmaker Paula Soto. She has stated, “We go to great lengths to protect [sea] turtle eggs. Lucky turtles! It appears they have more people willing to defend them than some unborn children.”

This article was originally published by The Culture of Life Foundation http://www.culture-of-life.org/content/view/468/1/

Used by Permission

May 1, 2007 

Dear Friend,

The Gonzales v. Carhart decision of April 18 is the most significant Supreme Court abortion decision in 15 years — since the Casey decision in 1992.

In the past week, we celebrated this landmark victory while conducting countless media interviews including Wall Street Journal, Chicago Tribune, New York Times, Los Angeles Times, and both conservative and liberal political publications. In addition, we met for two days to strategically plan next steps in our abortion-related legislation and litigation.

A special thanks to our donors in helping AUL secure this win.

While there are still five justices who support Roe and our opponents have already introduced federal legislation that would in effect codify Roe v. Wade as the law of the land, Gonzales dramatically opens up new doors for us. The decision will allow us to apply all of our work that we’ve been preparing over the past several years — in legislation, litigation, and research on the impact of abortion on women.

The decision changes the landscape in several ways:

• Gonzales has restored the guidelines from Casey that are more deferential to state legislation.
   
• It reinforces the importance of informed consent. Justice Kennedy wrote for the majority:

  “The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”

  This is an unprecedented passage in an opinion by a majority of the Supreme Court justices.
   

• For the first time in 34 years, the Supreme Court narrowed the unlimited emotional health exception of Doe v. Bolton to a focus on “significant health risks.” It opens the door for utilizing all our research on the negative impact of abortion on women.
   
• It opens the door to more aggressive regulation of abortion.
   
• It also has implications for bioethics. The Gonzales opinion shows greater Supreme Court humility than in Casey in 1992; the new majority will defer more to state legislatures. There is a considerably diminished possibility that the new Supreme Court majority will create, for example, a new “right to human cloning” or a new “right to destructive embryo research.” They will leave these decisions to the states, where AUL’s expertise is focused.

We now turn to next cases and next legislation. We’re confident that most of the cases in the lower federal courts will now be resolved in favor of the state legislation, and we are planning new model bills for the next legislative sessions to take full advantage of this new opportunity. We expect to be very busy.

To help us address the hurdles ahead, we’re sponsoring a conference on the Supreme Court in Washington, DC this summer with other Supreme Court experts in order to strategically plan the next stage of litigation. Because there are still five justices on the Court who favor Roe, the continuing challenge is that abortion legislation cannot create a “substantial obstacle” to abortion “before viability.” We are critically evaluating the challenges and planning for the best possible path through the courts.

To take full advantage of these new opportunities, we are looking to hire two additional attorneys as quickly as funding permits. Meanwhile, our limited staff is stretching to take advantage of every opportunity we can.

Thank you again for standing with us and making this progress in defending human life.

Sincerely,

Clarke D. Forsythe, Esq.
Senior Councel

P.S. In light of Gonzales, we have more opportunities in litigation and legislation than at any time in the past 15-20 years. Do you know of any friend, corporation, or foundation that we can approach to grow our staff and resources in the next six months? If so, please contact our Major Gifts Officer, Ginger Eppinette, at 312-568-4707 or by email to: development@aul.org development@aul.org.

by Mailee Smith
AUL Staff Counsel 

On Wednesday, May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act (GINA). GINA prohibits employers and health insurers from discriminating against persons on the basis of their genetic information. The measure passed by a vote of 414-1 in the House and 95-0 in the Senate before making its way to the President’s desk.

The almost-unanimous Congressional support is indicative of the public support—or public fear—behind the measure. A 2007 survey indicated that 93 percent of Americans oppose employer or insurer access to their genetic test results. Another survey indicated that 92 percent fear harmful use of their genetic test results by employers or insurers. GINA is an attempt to put such public fear to rest.

The Ethical Concerns Surrounding Genetic Testing
 
Genetic testing is currently available for 1200 diseases, and tests for hundreds of others are currently being developed. But as with other areas of biotechnological success, ethical issues have arisen with the advancement of genetic testing. For example, can health insurance companies use the results of genetic testing in granting or denying coverage? Or can employers screen the genetic information of potential employees before making hiring or promotion decisions?

Denying health insurance coverage on the basis of genetic disease is not new. In the 1970s, some insurance companies denied coverage or charged higher premiums to African Americans who carried the sickle cell anemia gene. More recently, young children have been denied health insurance because they carried a recessive genetic disease. In another example, a newborn was denied coverage after a prenatal genetic test indicated that the baby would be born with a genetic disorder. On the employment front, workers for Burlington Northern Sante Fe Railroad were tested for genetic predisposition to carpel tunnel syndrome.

State prohibitions of such genetic discrimination vary. Forty states and the District of Columbia prohibit discrimination in health insurance policies based upon genetic testing, but the extent of the protection differs. For example, only seven states specifically prohibit health insurers from requiring testing, while other states allow health insurers to consider the results of genetic testing only if the patients voluntarily submit favorable test results. On the other hand, 14 states encourage genetic testing or allow discrimination in certain types of insurance policies. Seven states have no provisions prohibiting insurance discrimination on the basis of genetic testing results.

Genetic discrimination and the patchwork of state laws have prompted concerned Americans to call for more uniform regulation of genetic testing, and many analysts believe that GINA is the answer.

The Potential Impact of GINA 
 
Some analysts believe that the passage of GINA ensures that Americans no longer have to choose between genetic privacy and good medical care. Patients can proceed with genetic testing without fearing that the results can be used against them in the healthcare or employment setting.

It is also believed that GINA will help ensure the progress of genetic testing and research. Scientists have reported a difficulty in engaging large numbers of patients in genetic studies because patients fear that the information obtained may be used against them by an insurer or an employer. Analysts have seen this effect as an impediment to genetic research and clinical practice. Under GINA, it is proposed, researchers can affirm their patients that their genetic information is protected against misuse.

Thus, it is believed that the passage of GINA will help the progression of “personalized medicine,” where patients are treated according to their specific genetic make-up.

Whether GINA will properly address these concerns and open up a new realm of healing remains to be seen. But for now, the President—and a unified Congress—is banking upon it. 

By Denise M. Burke
Vice President & Legal Director, Americans United for Life
 

One year ago, the public debate over abortion was irrevocably altered. In the landmark Gonzales v. Carhart decision, the U.S. Supreme Court upheld the federal ban on partial-birth abortion and, more importantly, abdicated, at least in part, its role as the “National Abortion Control Board.”

In its decision, the Court signaled an increasing willingness to blunt attempts by abortion extremists to use the courts to unilaterally impose their radical agenda on the American public, and an increasing willingness to let the people decide abortion policy. The immediate reaction of activists, state legislators, and the public confirmed this critical shift.

While abortion extremists hastily recycled the hyperbolic rhetoric of the 1970s, legislators and the public increasingly considered prudent responses to the mounting evidence of the negative impact of abortion on women.

In one public statement after another, pro-abortion groups and politicians condemned the decision and the Court, predicting — like modern-day Chicken Littles — that the outlawing of abortion was at hand and that women were about to be relegated to “second-class” status. For example, while predicting the demise of women’s health and equality, Nancy Northup of the Center for Reproductive Rights intoned, “Make no mistake — [the] ruling takes us perilously close to a complete reversal of Roe v. Wade.”

Despite such overwrought claims, Roe has not been reversed through court or legislative action. So, what has been the response of legislatures around the nation? Have they rushed to introduce abortion bans or any measures that would endanger women?

A review of the completed 2007 and the in-progress 2008 state legislative sessions shows that, while several states have introduced abortion bans, the number of states considering complete or near-complete bans on abortion has not significantly increased since the Gonzales decision.

Rather, what has increased is legislation designed to protect women from the negative consequences of abortion. Among these measures are comprehensive informed consent requirements, requirements that a woman be offered the opportunity to view an ultrasound before an abortion, and mandated minimum health and safety standards for abortion clinics. These protective measures, supported by a majority of Americans, are hardly the draconian threats to women or their health that abortion supporters gravely predicted.

However, abortion extremists continue to ignore the concerned and reasonable voice of the American public. In a July 2007 speech to the Planned Parenthood Action Fund, Presidential candidate Senator Barack Obama demonstrated the resolve of some abortion supporters when he questioned the type of America that the Gonzales court promised America’s daughters and resolved, “[o]n this fundamental issue [abortion], I will not yield,” vowing to continue his support of an agenda that prominently features partial-birth abortion, a practice that more than 80 percent of Americans abhor.

Notably, in the days following the Gonzales decision, Senator Obama, along with Senator Hillary Clinton and others, introduced the federal Freedom of Choice Act, a radical attempt to enshrine abortion-on-demand into our laws, to sweep aside existing state laws that the majority of Americans support — such as requirements that licensed physicians perform abortions and parental involvement statutes — and to prevent states from enacting similar protective measures in the future.

More importantly, the Freedom of Choice Act is a cynical attempt to prematurely end the debate over abortion and declare “victory” in the face of mounting evidence that (a) the American public does not support the vast majority of abortions being performed in the U.S. each year and (b) abortion has a negative impact on women.

Thirty-five years after Roe, abortion supporters are dismayed that abortion remains a divisive issue and that their agenda has not been submissively accepted by the American public. Rather than confronting legitimate concerns, they choose to blatantly ignore the growing evidence that abortion hurts women. In his speech to Planned Parenthood last summer, Senator Obama indicated that he is “absolutely convinced that culture wars are so nineties,” and that it is “time to turn the page” since he and other abortion supporters are “tired about arguing about the same ol’ stuff.”

Same ol’ stuff? What evidence are they so cavalierly dismissing? Here are just two recent examples: A study from a major U.S. medical school that abortion increases women’s risk of pre-term births, low-birth weight infants, placenta previa, and mental health issues; and recent evidence from Great Britain confirming the tremendous psychological toll abortion can exact, including depression leading to suicide.

Any fair and discerning person can see that this is not the “same ol’ stuff” and that the ever-increasing evidence of abortion’s negative impact is deserving of thoughtful consideration and debate. One is left to wonder how long supporters of abortion will continue to trot out their tired and thoroughly-debunked rhetoric — “abortion is good for women, abortion is safe, the mere availability of abortion guarantees women’s health and social equality” — and refuse to deal honestly with the facts.

With the Supreme Court’s increasing deference to the people, it falls to the American public to weigh such unsupported rhetoric in light of increasing evidence of abortion’s negative impact, and to decide issues of abortion policy wisely — just as the Founders trusted them to do.

By Maggie Datiles
AUL Staff Counsel
 

The on-going court battle in Illinois over the state’s permanently-enjoined parental notification law has once again brought parental involvement laws to the forefront of the cultural and legal fight against abortion. Accompanying the increasing cultural acceptance of abortion is a proportionate increase in the necessity for parental involvement laws. The promotion of sex-with-no-consequences in America has generated a high demand for abortion, including abortions for minors. These abortions present a host of issues not present in adult abortions: (1) the state’s interest in protecting the health and welfare of minors; (2) the state’s interest in protecting the constitutional rights of parents to raise their children; (3) immature minors’ lack of ability to make fully-informed decisions that take into account both immediate and long-range medical, emotional, and psychological consequences of abortion;¹ and (4) ensuring care that takes into account her medical history.

In light of the differences between minor and adult abortions, how important are parental involvement laws? How have the courts and legislatures treated parental involvement laws? And in the absence of parental involvement laws, what is at stake for minors and parents?

Are they Constitutional?

 The two forms of parental involvement laws for abortion are parental notification laws and parental consent laws. Parental notification laws typically require abortion providers to give 48 hours notice of a minor or incompetent person’s abortion to a parent or legal guardian. Parental consent laws, on the other hand, require abortion providers to secure the actual consent of a parent or legal guardian before performing an abortion.

The United States Supreme Court (USSC) has consistently held that both parental notification and consent laws are constitutional and do not impose an undue burden on a woman’s right to abortion when such laws contain (1) an exception for medical emergencies or when notice is waived by the person entitled to such notice; and (2) a confidential judicial bypass procedure.² A judicial bypass is, in essence, the substitution of court’s permission for the abortion for the requisite parental or guardian involvement. Such bypasses are generally granted when a court finds that a minor is mature and well-informed enough to make the abortion decision, or when a court finds that the minor has been subject to physical, sexual, or emotional abuse by the parent or guardian. For example, a judicial bypass may be granted if a court finds that the pregnancy is a result of incest by the parent who is to receive notice, or if the minor is in danger of physical abuse by the parent who is to be notified. Moreover, some states even have specific exceptions within the statute itself for cases of incest and physical abuse.³

The most common argument against parental involvement laws is that parental involvement laws could put certain minors in danger of abuse by their parent(s) or guardian(s), and would force such minors to seek out illegal abortions. The exception to the parental involvements laws for cases of sexual, physical and emotional abuse clearly anticipates and rebuts this argument.

Further argument against parental involvement laws are that such laws assume that all minors are immature and unable to make decisions in their own best interests, and that parental involvement laws will be unnecessarily applied to mature minors who are capable of making their own. These arguments are easily countered by the existence of confidential judicial bypass provisions which allow a court to authorize a minor’s abortion without parental notice and/or consent upon a finding that a minor is mature and able to make a fully-informed decision that takes into consideration the physical, mental and emotional consequences of abortion.

Why Are They Necessary?

 Parental involvement laws are clearly necessary for the health, safety and welfare of minors. Indeed, on several occasions, the USSC has recognized that minors seeking abortions presents a unique set of concerns that are not present with adults and that special legal protections are necessary to address these concerns.⁴

One issue specifically implicated is access to the minor’s medical records and other important health information. Parental involvement statutes provide parents the opportunity to supply the abortion provider with the minor’s medical and health information, as well as an opportunity for the parents to discuss and arrange adequate post-abortion care. Without these opportunities for parent-physician consultation and cooperation, the health of minors is put at serious risk. An abortion provider should know the medical history and background of the woman seeking an abortion, to make the best medical judgment regarding whether or not an abortion would be in the best interests of the woman, as well as any special health needs or accommodations the woman will need prior to, during, and after the abortion.

Parental involvement laws guarantee that parents will be available to help their daughters in cases of medical emergencies arising from an abortion. In February 1994, 15-year-old “Sarah”⁵ had an abortion at the hands of Moshe Hachamovitch at “A to Z Women’s Services” in Houston, Texas, without her parents’ notice or consent. Hachamovitch tore the right side of her cervix during the abortion. For four days, Sarah suffered at home from blood poisoning, fever, chills, severe abdominal pain, and nausea. She was completely unaware of the tear in her cervix, and her parents had no idea that she had had an abortion. She died in a hospital intensive care unit on March 2, 1992. The hospital physicians reported that if Sarah had received prompt medical care, the tear and post-abortion infection would have been detected immediately, and she would not have died. Had Sarah’s parents been aware of her abortion and given the opportunity to arrange adequate post-abortion care, Sarah would still be alive today.⁶ Thus, it is clear that parental involvement laws directly serve the state’s legitimate interest in protecting the health and safety of minors.

Parental involvement laws are also necessary for truly informed consent to be obtained. Parental advice and emotional support is irreplaceable for a minor’s abortion decision. The USSC has emphasized that “[a]s immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.”⁷ Indeed, the Court has recognized that the state’s legitimate interest in ensuring that a minor’s abortion decision is informed justifies the enactment of parental involvement laws, as the abortion decision “is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.”⁸

Lastly, parental involvement laws are necessary for the protection of parental rights. Parents have a right to know if their minor child will be undergoing an abortion, an invasive and often dangerous surgical procedure. The constitutional and traditional right of parents to rear their children has long been acknowledged by the courts. The USSC states that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”⁹ In the same vein, the Court has also stated that: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”¹⁰

The fundamental right of parents to raise their own children can be directly applied in the context of minors seeking abortions. The Court has interpreted the right of parents to raise their own children to include the right of parents to counsel their children on important decisions, such as the decision as to whether to carry a pregnancy to term or to terminate the pregnancy by abortion.¹¹ It is clear that parental notification and consent laws for minor abortions directly serve the state’s legitimate interest in protecting parental rights.

What’s Going On in the States?

 Currently, the majority of the states have parental involvement laws in effect.¹² Twenty-five states have enacted parental consent laws in effect,¹³ and three states have parental consent laws that are enjoined, in litigation, or not enforced.¹⁴ Eleven states have parental notifications laws in effect,¹⁵ and seven states have parental notification laws that are enjoined, in litigation, or are not enforced.¹⁶

On March 13, 2008, Illinois State Attorney General Lisa Madigan filed an appeal to the U.S. Court of Appeals for the 7^th Circuit to review the holding of the recent case Zbaraz v. Madigan, which denied Madigan’s request to lift the permanent injunction on the state’s parental notification statute. The Illinois Parental Notice of Abortion Act was enacted in 1995, but has never been enforced. Section 25(f) of the Act states: “An expedited confidential appeal shall be available, as the Supreme Court provides by rule, to any minor or incompetent person to whom the circuit court denies a waiver of notice.” Section 25(g) of the Act further states: “The Supreme Court is respectfully requested to promulgate any rules and regulations to ensure that proceedings under this Act are handled in an expeditious and confidential manner.”

The Act is constitutional, as it contains the necessary exceptions (for medical emergencies, waiver, and abuse) and a judicial bypass procedure. However, the Act was permanently enjoined simply because the Illinois Supreme Court refused to promulgate the administrative rule(s) necessary to implement the judicial bypass procedure of Section 25(f). The Court refused to implement the judicial bypass procedural rules, as was required of them by law in Section 25(g). To enjoin a parental notification statute for this reason is odd; no other state parental notification statute is not being enforced because a state supreme court refused to issue the required procedural rules for judicial bypass. 

 In her January 19, 2008 Press Release, Attorney General Madigan stated that the Illinois Supreme Court unanimously adopted judicial bypass procedural rules through the adoption of Rule 303A, Expedited and Confidential Proceedings Under the Parental Notification Act. Despite this, on February 28, 2008, the district court judge ruled (in Zbaraz v. Madigan) that the Parental Notification Act will remain permanently enjoined. With the appeal pending and the parental notification law still not enforced, the safety of minors and the rights of parents in Illinois remain in serious danger.

Conclusion

 In order to protect the health and safety of minors and the constitutional rights of parents to rear their children, it is essential for the states to enact parental involvement laws. The USSC has made it abundantly clear that such laws are constitutional when drafted properly and further important legitimate state interests. The safety of minors and the rights of parents demand no less.

Originally published by the Culture of Life Foundation, available at http://www.culture-of-life.org/content/view/446/1/

Endnotes

1. Mailee R. Smith, “Parental Involvement Laws: Protecting minors and furthering parental rights,” in Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life Issues, published by Americans United for Life. Available at http://aul.org/Parental_Involvement (last accessed April 15, 2008).

2. Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a one-parent consent PA law); H.L. v. Matheson, 442 U.S. 622 (1970) (upholding a one-parent notification law); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983) (upholding a one-parent consent law); Ohio v. Akron, 497 U.S. 502 (1990) (Akron II) (upholding a one-parent notification and consent law); Lambert v. Wicklund, 520 U.S. 292 (1997) (upholding a one-parent notification law). The Court in Casey stated: “Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. Casey, 505 U.S at 899.

3. See e.g., Utah Code Ann. §76-7-304(3)-(6):
(3) Subject to Subsection (4), at least 24 hours before a physician performs an abortion on a minor, the physician shall notify a parent or guardian of the minor that the minor intends to have an abortion.
(4) A physician is not required to comply with Subsection (3) if:
    (a) subject to Subsection (5)(a):
        (i) a medical condition exists that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant minor as to necessitate the abortion of her pregnancy to avert:
            (A) the minor’s death; or
            (B) a serious risk of substantial and irreversible impairment of a major bodily function of the minor; and
        (ii) there is not sufficient time to give the notice required under Subsection (3) before it is necessary to terminate the minor’s pregnancy in order to avert the minor’s death or impairment described in Subsection (4)(a)(i);
    (b) subject to Subsection (5)(b):
        (i) the physician complies with Subsection (6); and
        (ii) (A) the minor is pregnant as a result of incest to which the parent or guardian was a party; or
            (B) the parent or guardian has abused the minor; or
    (c) subject to Subsection (5)(b), the parent or guardian has not assumed responsibility for the minor’s care and upbringing.
(5) (a) If, for the reason described in Subsection (4)(a), a physician does not give the 24-hour notice described in Subsection (3), the physician shall give the required notice as early as possible before the abortion, unless it is necessary to perform the abortion immediately in order to avert the minor’s death or impairment described in Subsection (4)(a)(i).
    (b) If, for a reason described in Subsection (4)(b) or (c), a parent or guardian of a minor is not notified that the minor intends to have an abortion, the physician shall notify another parent or guardian of the minor, if the minor has another parent or guardian that is not exempt from notification under Subsection (4)(b) or (c).
(6) If, for a reason described in Subsection (4)(b)(ii)(A) or (B), a physician does not notify a parent or guardian of a minor that the minor intends to have an abortion, the physician shall report the incest or abuse to the Division of Child and Family Services within the Department of Human Services.

4. See e.g., H.L. v. Matheson, 442 U.S. 622, 404 (1970); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Carey v. Population Services International, 431 U.S. 678 (1977); and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II).

5. The true identity of the minor is concealed in confidential court records.

6. Supra at note 1.

7. Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II).

8. Danforth, 428 U.S. at 91.

9. Ginsberg v. New York, 390 U.S. 629, 639 (1968); see also Quilloin v. Walcott, 434 U.S. 246 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”).

10. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Stanley v. Illinois, [405 U.S. 645 (1972)]; and Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923).

11. See e.g., Bellotti II, supra, 443 U.S. 622, 633-639 and H.L. v. Matheson, 442 U.S. 622, 405 (1970).

12. See generally, Mailee R. Smith, “Parental Involvement Laws: Protecting minors and furthering parental rights,” in Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life Issues, published by Americans United for Life. Available at http://aul.org/Parental_Involvement (last accessed April 15, 2008).

13. AL, AZ, AR, ID, KY, LA, ME, MA, MI, MS, MO, NC, ND, OH, OK, PA, RI, SC, TN, TX, UT, VA, WI, and WY.

14. AK, CA, and NM.

15. CO, DE, FL, GA, IO, KS, MD, MN, NE, SD, and WV.

16. AK, CA, IL, MT, NV, NM, and NJ.

Originally published by the Culture of Life Foundation, available at http://www.culture-of-life.org/content/view/446/1/

J. Margaret Datiles
Staff Counsel, Americans United for Life

The debate over legislation and voter initiatives defining state constitutional “personhood” to include the unborn from conception (commonly referred to as “Human Life Amendments,” or “HLAs”) has sparked significant interest both inside and outside the pro-life community. An overarching goal of the pro-life movement is to protect the innocent lives of unborn persons, and state HLAs have been suggested as one possible means to achieve this goal. However, the media and many advocates on both sides of the abortion debate are not clear about the meaning and effect of the various forms of “personhood.” Consequently, it has become difficult to engage in an effective discussion of the personhood of the unborn and various methods or tools for securing legal protection of the unborn.

To facilitate and improve the on-going dialogue on the question of personhood, this article (1) clearly defines and distinguishes the terms “moral person,” “legal person,” and “constitutional person;” (2) points out how problems will arise from a lack of understanding of the differences between these terms; and (3) discusses the significance of these distinctions in the context of the debate on life issues.

The Moral Person

Thinking of the term “moral person” brings to mind the notion of the moral agent. The moral agent, generally speaking, is a being that is capable of knowing the difference between good and evil; is capable of making moral judgments based on this knowledge; can choose to engage in, and does engage in, good and evil actions; and can be held responsible for the good or evil actions engaged in. The moral person, in other words, is a rational being. However, is moral personhood conferred merely by having a rational nature, or by actual engaging in rational activities?

According to the traditional definition, (moral) personhood is something that a human being has simply because he/she is a human being with a rational nature, regardless of whether or not rational activity ever takes place. The classical philosophical definition of (moral) person was provided by Boethius:

Person is an individual substance of rational nature. As individual it is material, since matter supplies the principle of individuation. The soul is not person, only the composite is. Man alone is among the material beings person, he alone having a rational nature. He is the highest of the material beings, endowed with particular dignity and rights.¹ (Emphasis added)

However, John Locke presented a different (modern) approach to (moral) personhood. According to Locke, a person is “a thinking intelligent Being, that has reason and reflection, and can consider itself as itself, the same thinking thing in different times and places; which it does only by that consciousness, which is inseparable from thinking, and as it seems to me essential to it.”² For Locke, personhood is not dependent on merely having a rational nature; rather, it is dependent on the actual use of reason.

In short, classical philosophy treats all members of the human species as (moral) persons, whereas in modern philosophy, not all members of the human species qualify as (moral) persons.

The Legal Person

Unlike moral personhood, legal personhood is conferred by positive (or “man-made”) law. Positive law comes in two forms: common law and statutory law. A legal person is an entity that is recognized and protected under common law or statutory law. More specifically, a legal person is an entity who can, under common law or statutory law, hold and sell property, and sue or be sued.

It is clear that one does not need to be a member of the human species to be a legal person – corporations, law firms and schools are legal persons, although not human. Furthermore, not all members of the human species are legal persons – born and unborn children are not legal persons in some circumstances. In this way, the definition of “legal personhood” is in part informed by Locke’s theory of personhood (that not all humans are persons).

The category of legal personhood encompasses limited portions of two separate and distinct spheres: humans and non-humans. The definition of legal personhood extends to a limited segment of humans, and to a limited segment of non-humans (e.g., it extends to legally-formed corporations, but not to plants).

History of Legal Personhood

Historically, the most significant law that protected the sanctity of human life was homicide law. By definition, it prohibited the killing of a human being as a human being, strictly speaking, without explicitly referring to the human being as a person. Today, as a practical matter, fetal homicide laws and wrongful death laws do protect the life of the unborn child as a human being. Moreover, wrongful death laws protect the unborn child as a “person,” since wrongful death laws protect persons as persons. The role of legal personhood in the life debate shall be discussed in further detail in the sections to follow.

The Constitutional Person

A broad definition of “constitutional personhood” is the status of a human being or legal entity with some or all constitutional rights. In the abortion context however, the term “constitutional personhood” refers to the idea of a definition attributable to the word “person” in the constitutional text, specifically for purposes of the 14th Amendment right of all “persons” to life, liberty and the pursuit of happiness. In this context, there is currently no such thing as constitutional personhood. The Founding Fathers placed no such definition in the Constitution.

Problems with Failure to Recognize the Difference between the Definitions of “Personhood”

The distinctions between moral personhood, legal personhood and constitutional personhood are significant. The terms cannot be used interchangeably, lest the entire dialogue be rendered incomprehensible and meaningless.

To provide a brief explanation of why the terms cannot be substituted for one another, consider the following: A legal person is sometimes, but may not always be a moral person (e.g., a corporation is not a moral person). A moral person is sometimes, but may not always be a legal person (e.g., a born child cannot sell property). A legal person is sometimes, but may not always be a constitutional person (e.g., a corporation does not have a constitutional right to protection against self-incrimination). A constitutional person is sometimes, but not always a legal person. A constitutional person is sometimes, but may not always be a moral person (e.g., a corporation is not a moral person). Lastly, a moral person is sometimes, but may not always be a constitutional person (e.g., an unborn child is not a constitutional person).

It is clear that if the various types of “personhood” are used interchangeably, the entire conversation would simply not make sense!

Understanding the Different Roles of Legal and Constitutional Personhood in the Life Debate

It has been demonstrated that one need not be a constitutional person to be a legal person; in other words, “personhood” does not need to be defined in the Constitution for a human being to have legal protection.  Evidence supporting this conclusion can be drawn directly from the life debates. For example, state and federal protections for unborn victims of violence (also known as “fetal homicide laws”) treat the unborn as legal persons by treating the killing of an unborn human as a form of homicide. Hence, the unborn are protected in law in certain instances, even without constitutional personhood.

It is also important to note that, even if an unborn person is given constitutional personhood by means of an HLA, that unborn person is not necessarily a legal person protected by criminal homicide laws. This is because the Constitution only applies to actions of the U.S. Government, and not actions by individual persons. The creation of constitutional personhood for the unborn will not stop abortion providers from killing unborn children by abortion. Only a criminal homicide law that establishes legal personhood for the unborn could stop abortion providers from killing the unborn through abortion. In other words, an HLA by itself would not be an effective way to provide comprehensive protection for the unborn.

However, this is not to say that constitutional amendments are uniformly not a prudent path. For example, if an activist state supreme court enshrines Roe in a state constitution, adopting a tightly drafted amendment that is tailored to that decision with the specific intent to correct the decision would be the only way to address the situation. Moreover, a personhood amendment is not the only kind of constitutional amendment that can counter Roe. For example, an alternate amendment could be one that establishes that “no right to abortion is protected by the constitution.”

It is important to remember that constitutional amendments come at the end of a series of legal and social reform, not at the beginning. They are the “crowning achievement” of a record of legislative and cultural changes, rather than the catalyst that begins such change. Amendments have historically functioned as “reinforcers” of already-existing legal policies and cultural values. The history leading to the adoption of the 13^th Amendment and 19^th Amendment are perfect examples of this principle and historical trend.

Conclusion

In short, the media and others engaging in the life debate need to recognize the distinctions between the definitions of moral personhood, statutory and common law personhood and constitutional personhood, and they must not use the terms interchangeably. Increased awareness must be given to the fact that the unborn are protected in law in certain circumstances without constitutional personhood. In addition, there must be increased awareness that a human life amendment would not apply to individual abortion providers and would not afford the unborn legal statutory personhood. The public must know that there are many ways to protect the sanctity of human life aside from an amendment to the Constitution that would create constitutional personhood for the unborn, and also take away the abortion issue from the states. This awareness requires an understanding of the various forms and definitions of personhood, and an openness to considering all feasible and effective ways to protect human life. Once this awareness is achieved, only then can a comprehensible and effective dialogue on human personhood take place.  

Endnotes

1. De Persona et Duabus Naturis, ii, iii, in P.L., LXIV, 1342 sqq.

2. Essay on Humane Understanding, Book 2, Chapter 27, Section 9.

By Maggie Datiles, Esq.
AUL Staff Counsel

Introduction 
Former Governor Eliot Spitzer has introduced an extreme abortion bill, the Reproductive Health and Privacy Protection Act (RHAPP), into the New York State Legislature. This bill will do anything but make abortions rare and safe in New York. On the contrary, the RHAPP will increase the number of abortions performed in New York and wipe out all existing health and safety abortion regulations. If the RHAPP is enacted, it would make New York the abortion capital of America.

The implications and far-reaching effects of the RHAPP are unprecedented and unbelievably disturbing. For example, under the RHAPP, a 12-year old girl could have a late-term abortion performed on her by a non-physician (like a dentist or social worker), and her mom and dad would never know; her parents would be denied the opportunity to talk with the abortion provider about their daughter’s medical history and post-abortion follow-up care. If that’s not enough, under the RHAPP, a Catholic hospital could lose its license if it refuses on moral or religious grounds to refer for or provide abortions.

The RHAPP presents a serious threat to human life and to religious freedom in the State of New York, and its passage will pave the way for similar provisions to be passed in other states. Whether or not one is pro-life or pro-choice, Republican or Democrat, it is easy to see that this bill is extreme, dangerous, harmful to women, and divergent from the standards set forth in Roe v. Wade.

What Would the RHAPP do in New York?

The RHAPP establishes the right to abortion as a “fundamental right,” like the right to vote and the right to freedom of speech. Any and all health and safety abortion regulations would be invalidated as “discriminating” against this new fundamental right. For example, the RHAPP would invalidate current NY health and safety laws that require basic emergency equipment for abortions requiring anesthesia.

The RHAPP would allow late-term abortions on fully formed infants for any reason whatsoever, or for no reason at all. The RHAPP would also authorize non-physicians to perform abortions — if the RHAPP were enacted, a dentist, social worker, or podiatrist could perform abortions on women. This authorization of untrained, unqualified persons to perform abortions unduly places the health and safety of women at severe risk.

As if this weren’t enough, the RHAPP would also violate healthcare providers’ fundamental, 1^st Amendment right to religious freedom. If the RHAPP were law, Catholic hospitals, physicians, nurses, and other healthcare professionals and facilities would be forced to lose their medical licenses if they do not refer for or perform abortions, even if they refuse on moral or religious grounds. The RHAPP would force healthcare insurance plans to cover abortions, and force employers — including religious employers who refuse on religious grounds — to purchase abortion coverage.

The RHAPP would allow a physician to perform an abortion on a minor without parental notification or parental consent. In New York, minors are not allowed to be given aspirin by a qualified school nurse without parental consent. However, if the RHAPP were enacted, an unqualified, untrained person would be allowed to perform an abortion — an invasive surgical procedure with major health risks — on a minor without parental consent. The RHAPP would also give minors unrestricted, unmonitored access to the “morning after” abortion pill. It is clear that the RHAPP not only endangers the health and safety of minors, but infringes on the basic and traditional right of parents to direct the rearing of their children.

The RHAPP would take abortion in New York back to the back alley. In addition to allowing non-physicians to perform abortions, the RHAPP would change current NY law to shield from prosecution instances of coerced abortions, illegal performance of abortions by unauthorized facilities, and all other illegal back-alley abortions. The RHAPP would amend the current definition of manslaughter in New York, so that abortion providers will be shielded from being tried for manslaughter for an illegal abortions that caused a woman’s death. The RHAPP would make it illegal for coroners to investigate deaths caused by illegal abortions. In addition, the RHAPP would make abortion reporting requirements illegal, thereby making research on the safety and efficacy of abortion impossible. 

Conclusion

The RHAPP would increase abortions in New York. Its passage would endanger women’s health and will bring New Yorkers back to the days of the “back alley.” The RHAPP would strip New York law of provisions that protect women’s health, parental rights, and the religious freedom of healthcare providers, employers, and insurance companies. The RHAPP would protect the abortion industry and abortion providers, not women. It establishes a new “fundamental right” that takes away the ability of the legislature to pass constitutional regulations in furtherance of its legitimate interests in women’s health, parental rights, healthcare rights of conscience, and viable human life. To successfully challenge this dangerously sweeping bill, it must be stopped at the legislative level.

Detailed Legal Analysis of the RHAPP

I. The RHAPP does not “codify Roe“ 

Former Gov. Spitzer’s campaign and other proponents of the RHAPP, such as NARAL and Planned Parenthood, claim and advertise that the RHAPP would “codify Roe” and “finally put the fundamental tenants of Roe squarely into New York law.” These claims are false. The RHAPP expands the right to abortion far beyond the scope of the right established in Roe. The RHAPP goes beyond Roe, blatantly prohibiting abortion regulations which have been specifically upheld by the United States Supreme Court as constitutional under Roe v. Wade.

The following types of abortion regulations — all of which have been upheld as constitutional under Roe by the USSC — would be invalid under the RHAPP: (1) prohibitions on partial-birth abortion; (2) limits on the use of government funding, facilities, and employees for counseling, referring for, or performing abortion and contraception services; (3) civil rights laws allowing conscientious objection by healthcare providers to participate in abortion or contraception services, counseling, or referrals; (4) restrictions on the manufacture, sale, distribution, and use of emergency contraception (EC), or the “morning after pill”; (4) informed consent laws; (5) parental notice requirement for minor abortions; and (6) parental consent requirement for minor abortions, with judicial bypass.

II. The RHAPP would change the definition of the right to abortion, and shut down the legislature from passing meaningful abortion legislation

The RHAPP would establish the right to abortion and the right contraception as “fundamental rights,” thereby elevating them to the same status as the right to vote and the right to free speech. It changes Roe v. Wade’s definition of the right abortion. Roe v. Wade defined the right to abortion as a woman’s right to terminate her pregnancy prior to viability. The text of the RHAPP re-defines the right to abortion as an absolute right to abortion throughout all nine months of pregnancy, and as the right of a woman to “determine the course of her pregnancy.” This unheard-of definition of abortion conceivably includes any and all other reproduction-related rights, including an absolute right to contraception. The RHAPP would expand the rights to abortion and contraception to an extreme and unprecedented extent.

The RHAPP sets forth a “strict scrutiny” standard of review for abortion and contraception regulations. It invalidates and prohibits all laws, ordinances, regulations, and policies that would “deny, regulate, or restrict” the exercise of the right to abortion and the right to contraception, and states that all such laws “discriminate against the exercise of the right [to abortion and to contraception].”

No abortion or contraception regulation could satisfy such an uncompromising standard; under the RHAPP, all regulations of abortion or contraception will be invalidated or prohibited on grounds of “discrimination.” The RHAPP shuts down the legislature from passing any kind of health of safety regulation in the abortion and contraception context.

III. The RHAPP does not “update” New York law 

Former Gov. Spitzer’s campaign and other proponents of the RHAPP claim and advertise that the RHAPP “updates” New York law by “adopting the Casey viability standard.” These claims are false and misleading.

New York law already has a viability standard, and the RHAPP would replace the existing, more objective standard for viability with a problematic and wholly subjective definition of viability.

Current NY law authorizes abortions performed by a licensed physician before 24 weeks of pregnancy, and abortions after 24 weeks of pregnancy under the reasonable belief that it is necessary to preserve the woman’s life.

The current law already contains Casey’s viability standard. According to medical standards, the lungs of a fetus can sustain independent life as early as 23 weeks, and can sustain independent life typically and on-average at 24 weeks. The current law reflects this accepted medical standard for viability. It provides an objectively-determinable standard for viability that (1) has a reasonable basis, (2) is reasonably-related to the state’s interests in the welfare of the mother and viable fetal life, and (3) should therefore be upheld under the long-standing constitutional maxim of legislative deference.

The RHAPP’s proposed definition for viability unjustifiably places the determination of viability in the sole discretion of the abortion provider, with no consideration of generally accepted medical standards. In the face of abundant accepted medical standards that could be used to determine viability, the RHAPP does not require the abortion provider to follow any objective medical guidelines in his determination; this is unreasonable.

The RHAPP’s definition states that a fetus is viable ONLY if it can survive outside of the uterus WITHOUT extraordinary medical measures. This wholly departs from and contradicts the language used by the USSC in Colautti v. Franklin, which states that a fetus is viable if it can survive outside of the mother with or without artificial support.

IV. What is the best way to defeat the RHAPP? 

The best way to defeat the RHAPP is to prevent its passage through the legislature. First, although the bill is extreme, dangerous, and would dramatically change NY law, it is within the legislative authority of NY State to enact such a radical law. Second, NY case precedent provides little to no support for a court challenge against the RHAPP. Thus, a court challenge against the RHPP would likely not be successful.

Efforts must be focused on a lobbying strategy that highlights the obvious and serious direct consequences of the RHAPP. This lobbying effort must inform New York State senators of the bill’s radical, all-encompassing “no restriction” policy for reproduction-related legislation, and of the threat that the RHAPP would pose to the rights, health, and safety of women and viable children, and to the State’s right to pass constitutional legislation to further its compelling and legitimate interests in the well-being of its citizens and in the protection of viable human life.

by Maggie Datiles
Staff Counsel

It has been nearly fourteen years since the Oregon Death with Dignity Act was approved by a narrow margin in November 1994. This year, state bills and ballot initiatives attempting to legalize and create a state constitutional right to physician-assisted suicide (PAS) have been introduced, and challenges against state criminal homicide laws prohibiting assisted suicide have been filed. Despite national and international data and studies demonstrating the dangers that assisted suicide poses to the sick, disabled and elderly, assisted suicide proponents continue to press forward with efforts to spread the practice beyond the borders of Oregon. The medical community has come out against the PAS, but advocates have ignored its advice and recommendations. Meanwhile, disability groups and civil rights organizations consistently oppose the spread of assisted suicide. Although physician-assisted suicide is currently allowed only in the state of Oregon, legalization of the practice has emerged as an area of renewed interest.

State of the States: Where Are We Now?

In Washington v. Glucksberg (1) and Vacco v. Quill (2), the United States Supreme Court (USSC) ruled that there is no federal constitutional right to assisted suicide. The Court pointed out that state bans on assisted suicide are nothing new, but rather, “they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.” Opposition and criminalization of assisted suicide “are consistent and enduring themes of our philosophical, legal, and cultural heritages” (3).

Following this legal tradition, the majority of the states have prohibited assisted suicide. Presently, forty-four states prohibit assisted suicide, in direct correspondence with Anglo-American legal history (4). Thirty-eight states expressly prohibit assisted suicide by statute (5); six states prohibit assisted suicide by implication, through either adopting the common law of crimes or by interpreting their homicide statutes to apply to assistance in committing suicide (6); five states and the District of Columbia do not have statutes prohibiting assisted suicide, do not recognize the common law of crimes and have no applicable judicial decisions on assisted suicide (7); and one state allows assisted suicide under certain circumstances (8).

Moving Beyond Oregon: Washington State’s Initiative 1000

Initiative 1000, modeled after Oregon’s Death with Dignity Act, is likely to be on the ballot in November 2008 and would legalize assisted suicide in Washington. This initiative poses obvious dangers because the ballot title and summary do not adequately inform voters of the severe, direct and adverse consequences of the measure. Specifically, the ballot title and summary do not inform voters that 1. mental health evaluation (i.e. screening and treatment for depression or other mental illness) is not required; 2. family notification of a member’s request for assisted suicide is not required; 3 there are no penalties for physicians who fail to report assisted suicides, or who file inaccurate reports; and 4 physicians are granted complete immunity from liability for violating any or all patient safeguards.

A survey conducted by Moore Information of Portland, Oregon in April 2008 illustrated that 55% of participants supported Initiative 1000 after reading the ballot title and summary language. However, after participants were informed of the actual effects of the initiative (e.g., that lethal drugs will be prescribed to the depressed without treatment for depression; that abuses cannot be investigated; that family will not be notified; and that physicians are granted total immunity), the percentage of participants supporting Initiative 1000 dropped to 44%.

The language of the ballot title and summary of Initiative 1000 are clearly not in compliance with RCW 29A.72 and Article II, Sections 19 and 37 of the Washington Constitution, which require that the language of a ballot title adequately inform voters of the general and specific effect of the proposed legislation. (9)

Both Democrats and Republicans have spoken outwardly against Initiative 1000. Sen. Margarita Prentice (D) stated that Initiative 1000 “has virtually no protection for low-income and vulnerable people from being pressured into prematurely ending their life . . . This very dangerous initiative never would have passed the legislature.” Prentice also publicly asserted that under Initiative 1000, “physicians can prescribe lethal drugs to patients who are depressed or mentally ill,” and that “there is nothing to protect those suffering from psychological distress.” In the same vein, Sen. Joe Zarelli (R) stated that Initiative 1000 is bad public policy, and would “create conflicting ethics” for participating physicians. Gov. Chris Gregoire has also come forward in opposition to Initiative 1000.

Baxter v. State: Bringing the Fight against Assisted Suicide to the Courts

 
In addition to ballot initiatives, proponents of physician-assisted suicide have filed a lawsuit (in October 2007) in Montana, attempting to strike down a ban on the practice. Assisted suicide advocates claim that various sections of Article II of the Montana Constitution guarantee a “fundamental right” of terminally ill patients to physician-assisted suicide. Plaintiffs cite the right of privacy; the right of individual dignity; the right to due process of law; the right to equal protection of the laws; and the right to seek safety, health, and happiness in all lawful ways as state constitutional rights which encompass a right to assisted suicide.

In addition to establishing a state constitutional right to physician-assisted suicide, Plaintiffs also seek to strike the state’s criminal homicide laws prohibiting physicians from assisting in suicide. Plaintiffs seek a declaratory judgment declaring these provisions to be unconstitutional as applied to physicians performing assisted suicides.

The judicial history in Montana shows that the courts have broadly interpreted state constitutional rights such as the right to privacy. This does not bode well for the case against physician-assisted suicide. Assisted suicide opponents must work harder than ever to fight against the legalization of physician-assisted suicide in Montana. 

Legislative Efforts to Legalize Physician-Assisted Suicide 

Both California and Vermont introduced bills that would, as the bills were initially drafted, effectively legalize physician-assisted suicide. California’s AB 2747 and Vermont’s H. 804 would legalize assisted suicide in an indirect way. According to the language of the bills as introduced, the bill would establish a right to palliative sedation and a subsequent right to refuse nutrition and hydration. In effect, a patient would have the right to starve/dehydrate themselves (i.e., commit suicide) whilst in a state of sedation, to avoid feeling the pain of the starvation and dehydration. This is a round-about way of legalizing physician-assisted suicide and establishing a right to physician-assisted suicide. California medical groups, disability groups, and hospice centers have strongly opposed the California bill. Both the California and Vermont bills are examples of how pro-suicide advocates are pursuing new and creative ways to promulgate their agenda.

In 2007, at least four states (AZ, CA, HI, and VT) considered bills legalizing physician-assisted suicide,while at least four states (HI, IL, KS and NY) considered bills strengthening prosecutors’ options and/or punishment options in cases involving assisted suicide. At least four states have considered bills legalizing physician-assisted suicide so far this year.

Conclusion

Despite a long legal history and tradition of opposition and condemnation of assisted suicide, the vast majority of Americans today are unaware of the implications and adverse effects of legalizing assisted suicide. Gripped by fear of death and loss of autonomy, many Americans sympathize with physician-assisted suicide proponents. The passage of the Oregon Death with Dignity Act in 1994 with 51% of the vote marks the first and only victory for suicide advocates. Riding on that victory and on the sympathy of Americans who are unaware of the true nature of assisted suicide, advocates continue to press forward with efforts to expand the practice of assisted suicide throughout America and push for the slide toward euthanasia. It is clear, now more than ever, that Americans must continue to fight against the legalization and spread of physician-assisted suicide in order to protect society’s most vulnerable – the elderly, the sick, and the disabled.

This article originally appeard in the Culture of Life Newsletter (http://s44498.gridserver.com/content/view/478/). Posted with permission. 

Endnotes

(1) 521 U.S. 702 (1997).

(2) 521 U.S. 793 (1997).

(3) Glucksberg at 710.

(4) Mailee R. Smith, “Physician-Assisted Suicide: The inevitable slide toward euthanasia,” Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life, published by Americans United for Life. Available at http://www.aul.org/PAS (last accessed July 8, 2008).

(5) AK, AZ, AK, CA, CO, CT, DE, FL, GA, IL, IN, IA, KS, KY, LA, ME, MD, MI, MN, MS, MO, MT, NE, NH, NJ, NM, NY, ND, OK, PA, RI, SC, SD, TN, TX, VA, WA, and WI.

(6) AL, ID, MA, NC, VT, and WV.

(7) DC, HI, NV, OH, UT and WY.

(8) OR.

(9) Amicus Curiae Brief on Behalf of John E. Peyon, Jr., and Patricia Peyton, and Washington State Catholic Medical Association in Coalition Against Assisted Suicide v. Washington, available at http://www.aul.org/xm_client/client_documents/briefs/CoalitionAgnstAssistedSuicidevStateofWA.pdf (last accessed July 8, 2008).

(10) Sections 45-5-102, 45-5-103 and 45-5-104 Montana Code Annotated.

Clarke D. Forsythe
AUL Senior Counsel

Introduction
The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.

For 30 years, abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

This claim rests on not one but two falsehoods:

First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe was overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic. The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Why did the states target abortionists and treat women as a victim of the abortionist?

It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.

There are “only two cases in which a woman was charged in any State with participating in her own abortion”: from Pennsylvania in 1911¹ and from Texas in 1922.² There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

Based on this record—spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted for a spontaneous miscarriage has no record in history and will certainly not be the policy of any state in the future.

How was abortion law enforced? 

Going back as far as English and colonial law, the criminal law classified those involved in crimes as principals and accomplices. A principal is “the person whose acts directly brought about the criminal result.” An accomplice aids or abets the crime.

States did not treat women who had the abortion as either principals or accomplices. As the Oregon Supreme Court held as late as 1968, the abortionist commits the act, and the woman aborted is the object of that act. “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor.”³

As one legal scholar in the 1980s who studied this issue concluded after surveying the 50 states, women “were never charged with murder, only seldom were named co-conspirators, and still more rarely were regarded as accomplices.”⁴

While some women were prosecuted for their abortions under the English common law, by the 1870s or 1880s, most American states came to recognize that the better policy was to not prosecute women. That was the position of New York by 1885.⁵

With the exception of [four] state cases, the vast majority of the states with reported cases that discussed this issue determined that states could not prosecute women under any theory of criminal liability.

States relied on various techniques of statutory interpretation, along with the generally held belief that women were victims of their abortions, to support their decisions to refrain from prosecuting women. As the appeals court in the District of Columbia wrote in 1901, “[b]y its terms, [D.C. Code Ann. § 809 (1901)] applies to the person or persons committing the act which produces the miscarriage, and not to the person upon whom it is committed, notwithstanding it may be done with her knowledge and consent. Not being liable to indictment thereunder, she is not an accomplice in the legal sense.”⁶

Based on the fact that abortion was dangerous and often fatal up to the 19th century, women were seen as victims.

In addition, another main reason for the non-prosecution of women is that relieving women from criminal liability provided states with a better chance of achieving convictions against abortionists—the principal.

While the reported cases in a minority of the states arrived at an opposite conclusion—as a matter of technical legal principle—even these states never took advantage of the opportunity they allotted to themselves to actually prosecute women.

This was expressly affirmed by the Maryland Supreme Court and by the Minnesota Supreme Court in almost identical terms.

Maryland: “While it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience.”⁷

Minnesota: “As a first impression, it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its being committed upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction. But in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience.”⁸

The target of abortion law was the abortionist—the principal in the crime.  

The courts expressly affirmed that the statutes targeted the abortionist with their language. The Arkansas Supreme Court write in 1970: “Our own statute, … is directed toward the person who administers or prescribes medicine or drugs to any woman with child, with intent to produce an abortion, or to produce or attempt to produce an abortion by any other means.”⁹

The Oregon Supreme Court expressed the same conclusion in 1968: “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor. The class of persons against whom the statute is directed does not include those upon whom abortions are performed. Most similar state statutes are so construed.”¹⁰

Are there any known cases of a woman being indicted or tried for having an abortion in the U.S.? 

No. Not since 1922. There are “only two cases in which a woman was charged in any State with participating in her own abortion: from Pennsylvania in 1911¹¹ and from Texas in 1922.¹²

There is no documented case since 1922 in which a woman was even charged in an abortion in the United States.

Were women ever prosecuted for SELF-abortion?

Never in the United States. The last was in 1599—the end of the 16th century. As Villanova Law Professor Joseph Dellapenna, author of the encyclopedic book, Dispelling the Myths of Abortion History, has demonstrated, “in the entire history of Anglo-American law, it appears that the only woman to have been charged with a crime for self-abortion was Margaret Webb—in 1599.”

Iowa, as early as 1863, held that a woman could not be indicted for a self-abortion.¹³

Dellapenna also demonstrates that “while several states (including California, Connecticut, Indiana, New Hampshire, and New York) made self-abortion a crime, they did not prosecute any women—they enacted an exception to the accomplice evidence rule or granted women immunity from prosecution in order to obtain her testimony against the abortionist.”

As the Michigan Supreme Court held in 1963, “The majority view is that not only may she not be held for abortion upon herself but neither as an accomplice.”¹⁴

Those states with statutes on the books that prohibited women from aborting [self-abortion] did not prosecute.  

As researcher Paul Linton has pointed out, “[a]lthough more than one-third of the States [including Arizona, California, Connecticut, Delaware, Indiana, Minnesota, Montana, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, Washington, and Wyoming] had statutes prohibiting a woman from aborting her own pregnancy [self-abortion] or submitting to an abortion performed on her by another, no prosecutions were reported under any of those statutes.”¹⁵

In the 1911 case in Pennsylvania, the trial court threw out the charge and the Pennsylvania Superior Court concurred, stating that “in the absence of clear statutory authority, ‘the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime.’”

Based on this review of the 50 states, Linton concluded, “no American court has ever upheld the conviction of a woman for self-abortion or consenting to an abortion and, with the exception of [the Pennsylvania case from 1911 and Texas case from 1922], there is no record of a woman even being charged with either offence as a principal or as an accessory.”¹⁶

Which States treated women as victims? 

At least: California, the District of Columbia, Iowa, Maryland, Oklahoma, South Dakota, Tennessee, and Texas.

As long ago as 1880, a Texas court affirmed that the woman was a victim, not rhetorically but in the law: “The rule that she does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right, and there is certainly nothing in our law of accomplices which should be held to contravene it.”¹⁷

Many other state courts said the same thing:

California: “The abortee is considered the victim of the crime.”¹⁸

Delaware: Zutz v. State, 52 Del. 492, 160 A.2d 727 (1960).

District of Columbia (DC): “She is regarded as his victim, rather than an accomplice.”¹⁹

Idaho: State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954).

Kentucky: Richmond v. Commonwealth, 370 S.W.2d 399 (KY 1963).

Maryland: “In Maryland a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than a participant in it.”²⁰

Minnesota: “in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience…She was the victim of a cruel act.”²¹

South Dakota (1924): “She does not, by consenting to the unlawful operation, become an accomplice in the crime. She should be regarded as the victim of the crime, rather than a participant in it.”²²

Which states did NOT treat women as an accomplice? 

At least 30: Arkansas, California, Connecticut, Delaware, District of Columbia, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, and Virginia.

As long ago as 1915, one Texas court held, “It has been so many times decided by this court that the woman upon whom an abortion is committed is not an accomplice that we regard the question as settled.”²³

As late as 1960, the Delaware Supreme Court wrote: “It is generally held in most states that a woman in an abortion case is not an accomplice. [citing Commonwealth v. Fisher, 189 Pa. Super. 13, 149 A. 2d 666 (1959); State v. Montifoire, 95 Vt. 508, 116 A. 77 (1921); State v. Hyer, 39 N. J. L. 598 (1877)] The reasoning of the courts seems to be that the woman is generally regarded as the victim of the crime rather than a participant in it.” [citing Wilson v. State, 36 Okla. Cr. 148, 252 P. 1106 (1927); Smart v. State, 112 Tenn. 539, 80 S. W. 586 (1904)]).²⁴

Basoff v. State, 208 Md. 643, 653-654, 119 A. 2d 917, 923 (1956) (“it is also held in this State that a pregnant woman upon whom an abortion is produced is not an accomplice of the person who administers the substance or performs the operation to produce the abortion…In Maryland, a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than as a participant in it.”²⁵

See Thompson v. United States, 30 App. D.C. 352, 362-363 (1908) at 364 (“As the victim of an unlawfully procured miscarriage was not an accessory before the fact, she is not indictable as a principal offender…”).

Which states did treat a woman as an accomplice? 

There were 20 states in which statutes technically made it a crime for the woman to participate in her own abortion: Arizona, California, Connecticut, Delaware, Idaho, Indiana, Minnesota, Montana, Nevada, New Hampshire, New York, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Washington, Wisconsin, and Wyoming. However, these were not enforced or applied against women. There is no record of any prosecution of a woman as an accomplice even in these states.

Alabama: In 1916, an appeals court held that, as an evidentiary matter, the woman was considered an accomplice, but the woman’s guilt was not actually at issue in the case.²⁶

Some states did treat the woman as a conspirator. 

Technically, courts in a handful of states treated the woman as a possible conspirator: Colorado, Iowa, New York, North Dakota,²⁷ and Wisconsin.

Even in these states, however, the issue in the recorded cases was not the woman’s guilt—no woman was charged or was a co-defendant in the cases—but the admissibility of evidence against the abortionist. No woman was prosecuted.

Other states rejected treating the woman as a conspirator: California, New Jersey, and Pennsylvania.

But statutes in these states have been repealed, and the legislatures would have to enact wholly new legislation to address abortion.

Some states had statutes prohibiting solicitation of abortion—under the general rule that solicitation of any crime is a crime—but these were evenhandedly applied to men and women.  

At least Arizona, California, Connecticut, Idaho, South Dakota, and Utah.

For example, South Dakota had an anti-solicitation law for abortion. S.D. Compiled Laws Ann. 22-17-2 (1967).

However, there’s no record of any woman being prosecuted under this law, let alone convicted.

Even pro-abortion historians admit this record. 

The pro-abortion historian Leslie Reagan, in her 1997 book When Abortion Was A Crime, admits that states did not prosecute women for their abortions and that women did not face criminal liability as principals, accomplices, conspirators, solicitors, or murderers, and concedes that the purpose behind that law was not to degrade women but to protect them.

Conclusion 

The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years.

It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.

Based on the 50-state record of enforcing abortion law for more than a century before Roe, Linton concluded that “if Roe is overruled, no woman would be prosecuted for self-abortion or consenting to an abortion, even in those few States where abortion prohibitions would be enforceable.”

Prolife legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned. This is demonstrated by abortion regulations enacted in the past 20 years—like the federal partial birth abortion ban—in which women are expressly excluded from any possible prosecution. Instead, pro-life legislators are advocating laws that defend the unborn and protect women from the negative impact of abortion.

Endnotes

1. Commonwealth v. Weible, 45 Pa. Super. 207 (1911).

2. Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438 (Tex. Crim. App. 1922).

3. State v. Barnett, 249 Or. 226, 228, 437 P.2d 821, 822 (1968).

4. Paul D. Wohlers, J.D., Women and Abortion: Prospects of Criminal Charges (published in

People v. Vedder, 98 N.Y. 630, 632 (1885) (“It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in the 294th section and that she could not, therefore, be indicted under that section.”)

5. Thompson v. United States, 30 App. D.C. 352, 362-363 (1908).

6. Basoff v. State, 208 Md. at 654, 119 A. 2d at 923.

7. State v. Pearce, 56 Minn. 226, 231 57 N.W. 652, 653.

8. Heath v. State, 249 Ark. 217, 219, 459 S.W. 2d 420, 422 (1970) (citing Ark. Stat. Ann. §41-303 (Supp. 1969), cert. denied, 404 U.S. 910 (1971).

9. State v. Barnett, 249 Or. 226, 229, 437 P. 2d 821, 822 (1968) (emphasis added).

10. Commonwealth v. Weible, 45 Pa. Super. 207 (1911).

11. Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438 (Tex. Crim. App. 1922).

12. Hatfield v. Gano, 15 Iowa 177 (1863).

13. Petition of Vickers, 371 Mich. 114, 115, 123 N.W.2d 253, 254 (1963).

14. Paul Benjamin Linton, The Legal Status of Abortion in the States if Roe v. Wade is Overruled, 23 Issues in Law & Medicine 3, 6 n.15 (2007).

15. Paul Benjamin Linton, The Legal Status of Abortion in the States if Roe v. Wade is Overruled, 23 Issues in Law & Medicine 3, 6 n.15 (2007).

16. Watson v. State, 9 Tex. Ct. App. 237, 244 (1880).

17. People v. Reinard, 33 Cal.Rptr. 908, 912, 220 Cal.App.2d 720, 724 (1963). See also People v. Gibson, 33 Cal.App. 459, 166 P. 585 (1917).

18. Thompson v. United States, 30 App.D.C. 352, 363 (1908).

19. Basoff v. State, 208 Md. 643, 654, 118 A.2d 917, 923 (1956). This was the policy of Maryland as early as 1912. Meno v.

20. State, 117 Md. 435, 83 A. 759 (1912).

21. State v. Pearce, 56 Minn. 226, 230, 57 N.W. 652, 653 (1894).

22. State v. Burlingame, 47 S.D. 332, 198 N.W. 824 (1924).

23. Gray v. State, 77 Tex. Crim. 221, 229, 178 S.W. 337, 341 (1915).

24. Zutz v. State, 52 Del. 492, 496-497, 160 A. 2d 727, 729 (1960).

25. Meno v. State, 117 Md. 435, 83 A. 759 (1912).

26. Trent v. State, 15 Ala.App. 485, 73 So. 834 (1916).

27. State v. Mattson, 53 N.D. 486, 206 N.W. 778 (1925); State v. Reilly, 25 N.D. 339, 141 N.W. 720 (1913).

By J. Margaret Datiles
AUL Staff Counsel

With the closing of the 2008 Presidential Elections, we find ourselves struggling to determine whether President-elect Barack Obama will hold fast to the principles and values we hold dear. One important question the must be answered in order to make this determination is, “How important is Obama’s views on abortion and other life issues?” How important is it for the pro-life cause to have a pro-life President? What impact does the President of the United States have on the pro-life agenda? Does it really matter what the President’s position on life issues is? The answer is simple: Yes, it does matter. The President of the United States plays a crucial role in advancing the pro-life cause in America, and an election of a pro-life President will guarantee a political environment that is supportive of pro-life legislation and policies.

This essay discusses the President’s impact on the pro-life cause through the his or her role in (1) the appointment of Supreme Court Justices, federal judges, the U.S. Attorney General, and other government officials; (2) the enactment of pro-life legislation passed by Congress; (3) the preservation of existing pro-life policies; (4) the issuance of executive orders that protect human life; (5) the prevention of the passage of policies that would endanger human life or remove an existing pro-life policy; and (6) the promotion of a culture of life through public speeches and proclamations.

Appointments to the United States Supreme Court: For the Pro-Life Cause, Every Vote Matters

One of the most obvious ways the President of the United States influences the cause for life in America is through the appointment of United States Supreme Court (USSC) justices. At this time, the USSC justices play the lead role in dictating American abortion jurisprudence. The USSC decisions in Roe v. Wade¹ and Doe v. Bolton² in 1973 forever changed abortion law in America. Those decisions established a federal constitutional right to abortion, invalidated the abortion laws of all 50 states and, as AUL President Clarke Forsythe once put it, crowned the USSC “the national abortion control board.“³ The USSC decisions in Roe and Doe took away the power of individual states to enact abortion laws according to their own independent standards and, since 1973, the edicts of the USSC have governed the content and scope of all state abortion laws. If a state wishes to pass an abortion regulation that will be upheld in court, it must follow the requirements and standards dictated by the USSC.

The varying effects and changing legal standards set forth by the string of Supreme Court abortion decisions since Roe demonstrate that abortion jurisprudence in the U.S. is continually in flux and wholly contingent upon the dictates of the USSC.

The landmark abortion cases after Roe which now govern American abortion jurisprudence — Planned Parenthood v. Casey⁴, Stenberg v. Carhart⁵, and Gonzales v. Carhart⁶ — were all decided by 5-4 votes. This fact manifests the importance of a single Supreme Court justice’s vote — one vote, one justice, makes all the difference. One justice could change the legal standard of review for abortion laws in all 50 states. One justice could expand the maternal health exception, or narrow it. One justice could overturn Roe v. Wade and Doe v. Bolton, or reaffirm them. One vote could change it all, for better or for worse.

The overturning of Roe v. Wade, as well as any USSC decision that would further narrow the maternal health exception and enable the states to pass more common-sense abortion regulations, would be great victories for the pro-life cause. As the decisions of the USSC are often decided by a single vote, it is necessary for the advancement of the pro-life cause that there be a pro-life majority in the Supreme Court. Attaining and maintaining such a majority is, of course, dependent upon who the President appoints to the Court.

When appointing a USSC justice, the President is sure to ask, among other things, will a judicial candidate will interpret the law or create it? Will the candidate properly defer to the legislature? Will the candidate give adequate weight to the state’s interest in developing human life when making decisions? Will the candidate consider or brush aside authoritative medical evidence and credible testimony presented by pro-life medical experts? A pro-life President will most likely make more efforts than a pro-abortion President to appoint Supreme Court justices who will interpret abortion law rather than create it, give the legislature proper deference, and afford adequate weight to the state’s interest in developing human life. It is clear that the next President’s position on abortion and life issues will have significant and lasting effects on future USSC abortion decisions and the consequent abortion legal standards.

Appointment of Federal Judges

Before an abortion or life-related case ever reaches the USSC, it often has to pass through the lower federal district and appellate courts. Although many people never hear about an abortion or life-related case until it reaches the USSC, it is important to realize that such cases are constantly and continuously passing though the federal district and appellate courts. Overturning or upholding abortion and life-related laws more often rests in the hands of lower court federal judges rather than in the hands of USSC justices. It is also up to these judges to interpret abortion and other life-related laws arising within their jurisdictions. The decisions of federal judges in these cases also establish important case precedent, which serves as guidelines for future court decisions (both within their jurisdiction and elsewhere). Thus, the success of the pro-life movement depends greatly on the careful selection and appointment of federal district and appellate court judges by the President.

Appointment of the Attorney General and the Solicitor General: Defending Pro-Life Laws in Court

The U.S. Attorney General and other members of the Department of Justice are the primary advocates for the federal government, and can play an important role in defending pro-life laws in court. However, the Attorney General can also defend anti-life laws, actively undermine the enforceability of pro-life laws, and issue anti-life directives.

For example, in 1997, President Clinton’s Attorney General Janet Reno declared that state laws which allow physician-assisted suicide, such as the Oregon Death with Dignity Act, do not violate federal law. However, later in 2001, President Bush’s Attorney General John Ashcroft issued a pro-life directive stating that the Oregon physician-assisted suicide law violates the federal Controlled Substances Act.⁷

In addition to the defense of laws and issuing of directives, Attorneys General and their staff also file amicus curiae briefs in cases involving abortion and life issues. For example, in February 2006, the Solicitor General filed a brief in the USSC on behalf of the Bush Administration, urging the Court to grant review in the challenge to the federal Partial-Birth Abortion Ban Act of 2003, Gonzales v. Carhart. Similarly, in 1991, Chief Justice John Roberts, who was then the principal deputy solicitor general, filed a brief in the USSC in Rust v. Sullivan, supporting federal regulations prohibiting Title X clinics from using federal funds to counsel or refer for abortions. In that brief, he wrote that “Roe v. Wade was wrongly decided and should be overruled,” and that the decision has “no support in the text, structure, or history of the Constitution.”

Appointment of Other Political Positions which Impact the Pro-Life Agenda

The President is responsible for appointing government officials in executive departments that oversee programs and enforce regulations that involve abortion and other life issues. The most obvious example is appointing the Secretary of the Department of Health and Human Services (HHS). HHS is responsible for enforcing health-related federal laws, which include laws involving abortion and biotechnology. It also drafts the annual federal spending bill, which includes several provisions (or “riders”) restricting the use of federal funds for abortion, destructive embryonic stem cell research, and involuntary sterilization, both domestically and abroad. The annual spending bill also appropriates federal funding for abortion-alternative centers. The most significant pro-life riders in the annual HHS appropriations bill include the Hyde Amendment; the Kemp-Kasten Amendment; the Hyde-Weldon Amendment; the Mexico City Policy; and the policies regarding abortions in military healthcare facilities or federal prisons. (See Section II(b)below.)

In addition to drafting the annual federal appropriations bill, HHS is responsible for enforcing the pro-life riders that are enacted. The Secretary also issues statements supporting or opposing health policies involving abortion and other life issues. For example, on May 15, 2002, HHS Secretary Tommy Thompson issued a statement recommending the veto of a human cloning bill. More recently, on March 14, 2008, HHS Secretary Mike Leavitt wrote a letter opposing the new policy of American College of Obstetricians and Gynecologists (ACOG), that would force physicians to violate their conscience by referring patients for abortions, or risk losing their board certification. The HHS Secretary urged the American Board of Obstetrics and Gynecology (ABOG) to reject the new policy and protect the conscience rights of physicians.

In addition to HHS, the President also fills key positions at the Food and Drug Administration (FDA). FDA studies and drug approvals play a vital role in the fight for life. For example, in 2000, under the Clinton Administration, the FDA used an expedited approval process created for the emergency approval of drugs for life-threatening diseases (particularly, AIDS/HIV), to approve the use of RU-486, or mifepristone, an abortifacient drug. The FDA is responsible for enforcing the approved regimen for RU-486, and for conducting follow-up studies to verify the efficacy and safety of the drug. The continuing availability of RU-486 in the American drug market and the availability of authoritative studies on the efficacy and safety of RU-486 depend on whoever the President appoints to the FDA.

The President also appoints U.S. foreign delegates. These delegates play a vital and active role in the fight for life by participating in the adoption or rejection of international life-related policies. For example, the United States was among one of the countries supporting the adoption of the U.N. General Assembly’s declaration banning all forms of human cloning on March 8, 2005. The President’s influence on the pro-life cause extends not only to domestic issues, but abroad.

Enactment of Pro-Life Legislation

Although the reversal of Roe is in the hands of the USSC, the President has the power to sign and enact incremental legislation implicating abortion, biotechnology, and other life issues. For example, President Bush has signed the following pro-life bills into law:

• Born Alive Infant Protection Act, signed August 5, 2002
• Partial Birth Abortion Ban Act, signed November 3, 2003
• Unborn Victims of Violence Act, signed April 1, 2004
• Hyde-Weldon Amendment, signed December 8, 2004

Preservation of Existing Pro-Life Policies

In addition to enacting new pro-life laws, the President is also responsible for preserving or overturning existing pro-life policies. For example, the next President may continue or overturn:

• The Hyde Amendment (1976): Prohibits Medicaid and any other federal program from funding abortions, except in cases of rape or incest, or to save the mother’s life.
• The Dickey-Wicker Amendment (1995): Prohibits the use of public funding for destructive embryonic stem cell research.
• The Kemp-Kasten Amendment (1979): Prohibits the appropriation of federal funding to any program or organization that supports or participates in coerced abortions or involuntary sterilization. Under this Amendment, no federal funds have been given to the United Nations Population Fund (UNFPA) for its support of China’s coercive population control program.
• The Hyde-Weldon Amendment (2004): Protects the rights of conscience of healthcare providers. The Amendment prohibits programs that receive federal funds from discriminating against healthcare providers who refuse to provide, pay for, provide coverage for, or refer for abortions.
• The Mexico City Policy (1984): Prohibits the use of federal funding for organizations and programs “which perform or actively promote abortion as a method of family planning in other nations.”
• Military Abortion Policy (1988): Prohibits military facilities from being used for the performance of abortions, except in cases of incest and rape or to save the life of the mother.
• Federal Prison Abortion Policy (1986): Prohibits the use of federal funds to pay for abortions in federal prisons, except in cases of rape or to save the mother’s life.
• District of Columbia Abortion Policy: Prohibits the use of federal funds for abortions in the District of Columbia.

Utilizing the Presidential Veto in the Fight for Life

In addition to enacting an annual spending bill that contains pro-life “riders,” the President can preserve existing pro-life policies by vetoing efforts that seek to remove existing pro-life policies.

Similarly, the President can also use his veto power to prevent the passage of anti-life legislation passed by Congress. For example, on June 20, 2007, President Bush vetoed efforts to legalize federal funding of destructive embryonic stem cell research. Similarly, in 1992, President George H.W. Bush vetoed an attempt to lift the ban on fetal tissue research.

On the other hand, the President can use his veto power to prevent the passage of life-affirming laws. For example, in 1996 President Clinton vetoed a Partial Birth Abortion Ban Act.

Currently, there are a number of anti-life bills that have been introduced into the legislature. If these bills are passed, the President could prevent their enactment by vetoing the bills. An example of an anti-life bill that has been recently introduced into Congress is Senator Boxer’s Freedom of Choice Act (FOCA).

It is clear that the Presidential veto can be either a powerful tool for the cause of life, or else its deadly enemy.

Issuance of Executive Orders that Protect Life

The President can issue life-affirming executive orders to the various offices of the executive branch. For example, in August 2001 and again in April 2007, President Bush issued an executive order prohibiting the use of federal funds for destructive embryonic stem cell research. He has also issued an order for the formation of the President’s Council on Bioethics to monitor stem cell research and recommend guidelines and regulations regarding legal and ethical issues present in emerging biotechnologies.

Conversely, the President can issue executive orders that endanger human life. On the 20^th anniversary of Roe v. Wade (and his 4^th day as President), President Clinton issued a series of executive orders overturning a significant number of existing pro-life policies.⁸ Under the Clinton Administration, millions of American tax dollars were used to fund abortion, abortion referrals, coerced abortions, and involuntary sterilization. President G.W. Bush issued executive orders reinstating these pro-life policies in full.

The use of executive orders by President Clinton to endanger life, and President G.W. Bush’s use of executive orders to protect life further demonstrate how the President can utilize his position to stifle or further the cause for life.

Official Presidential Statements Affirming Life

The President can encourage the passage of pro-life legislation and discourage the passage of pro-abortion legislation through the release of reports and official statements. These documents alert members of Congress as to what bills the President supports and will sign if passed, and what bills the President would veto. Often this information will determine whether or not members of Congress continue pursuing particular bills. If the President is supportive, the members (especially of his own party) will likely continue in their efforts to pass the bill. If the President is not supportive, the members may be discouraged from pushing the bill, since it would end up being vetoed anyway.

During the Bush Administration, the Executive Office of the President has released a multitude of official life-affirming Statements of Administrative Policy on issues such as human cloning, embryonic stem cell research, partial-birth abortion, and born-alive infant protection.

It is clear that the President has an active role in encouraging the passage of pro-life legislation by Congress, and in discouraging efforts to push anti-life legislation.

Public Speeches and Published Statements by the President Promoting a Culture of Life

The White House is the ideal forum for advocating the pro-life cause and promoting a culture of life. Indeed, President Theodore Roosevelt referred to the White House as a “bully pulpit.” President G.W. Bush has made good use of this “bully pulpit,” utilizing it as a means to encourage pro-lifers in America to keep fighting for life.

Throughout his presidency, President G.W. Bush has continually given speeches advocating the pro-life cause. For example, during his State of the Union Address in 2006, Bush declared his opposition to destructive embryonic stem cell research and his support for banning all forms of human cloning. Similarly, during his State of the Union Address in 2003, he urged Congress to pass the Partial Birth Abortion Ban Act.

More recently, on April 18, 2007, President Bush released a statement applauding the USSC decision in Gonzales v. Carhart, stating: “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law.” On January 18, 2008, Bush issued a proclamation declaring January 20, 2008 “National Sanctity of Human Life Day,” to encourage Americans to celebrate and contemplate the sanctity of life at all stages, even in the womb.

The President of the United States is in a unique position to advocate for the pro-life cause, and to remind politicians and citizens of the intrinsic and insurmountable value of human life.

Conclusion

A President’s views on abortion and life issues do matter. The President of the United States has a profound impact on the advancement of the pro-life cause in America and abroad.

Endnotes

1. 410 U.S. 113 (1973).
2. 410 U.S. 179 (1973).
3. Clarke D. Forsythe. “Who Will Fix the Supreme Court’s Mess? A history of the United States Supreme Court abortion decisions and how they have shaped abortion law,” in Defending Life 2008: Proven Strategies for a Pro-Life America, available at http://aul.org/Defending_Life?p=152 (last accessed March 24, 2008).
4. 505 U.S. 833 (1992). According to Roe, a state could regulate, and even prohibit, abortion after viability, “except where it is necessary, in the appropriate medical judgment, for the preservation of the life and health of the mother.” The USSC defined “health” in Doe as “all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.” By a close 5-4 vote in Planned Parenthood v. Casey, these holdings were essentially reaffirmed.
5. 530 U.S. 914 (2000). By another 5-4 vote in Stenberg v. Carhart, the USSC not only reaffirmed Roe, but expanded the maternal health exception. The Court mandated that every state abortion regulation must contain a maternal health exception, and that exception is to be interpreted broadly.
6. 127 S.Ct. 1610 (2007). Most recently, in Gonzales v. Carhart, the USSC made a 5-4 decision to change the standard for abortion laws once again, this time narrowing the maternal health exception and effectively overruling the Stenberg decision. In Gonzales, the Court replaced Stenberg’s strict standard with Casey’s more reasonable “undue burden” or “significant health risk” standard.
7. In 2004 the U.S. Court of Appeals for the Ninth Circuit overturned Ashcroft’s directive and upheld the Oregon law. Judge Tallman, who wrote the majority decision, was appointed by President Clinton. When the issue reached the USSC in 2005, President Bush’s Solicitor General Paul Clement argued that the Ninth Circuit’s ruling should be overturned. Ultimately, the Oregon physician-assisted suicide law was upheld by the USSC. The history of Oregon’s Death with Dignity Act displays the active role of the President-appointed members of the Department of Justice.
8. These policies included the Hyde Amendment, the Mexico City Policy, the military’s abortion policy, the federal prisons’ abortion policy, and the ban on fetal tissue research (most of the fetal tissue used came from abortions). Further, he did not deny UNFPA federal funds to support China’s coercive family planning /one-child policy.
9. The Executive Office of the President issued the following Statements of Administrative Policy:
   - June 6, 2007: Opposing a bill that would allow funds for human cloning.
   - January 11, 2007: Opposing a bill that would allow funds for destructive embryonic stem cell research.
   - December 6, 2006: Encouraging Congress to pass the Unborn Child Pain Awareness Act.
   - May 24, 2005: Opposing a bill that would allow funds for destructive embryonic stem cell research.
   - May 24, 2005: Encouraging Congress to pass a bill on stem cell research involving the use of umbilical cord blood.
   - April 27, 2005: Encouraging Congress to pass the Child Interstate Abortion Notification Act.
   - February 26, 2003: Encouraging Congress to pass the Weldon-Stupak bill, banning all forms of human cloning.
   - June 4, 2003: Encouraging Congress to pass the Partial Birth Abortion Ban Act, and discouraging any amendments to the Act.
   - March 12, 2002: Encouraging Congress to pass the Born Alive Infant Protection Act.

Denise M. Burke

Over the last few decades, abortion advocates and others have launched a concerted campaign to force hospitals, healthcare institutions, health insurers, and individual healthcare providers to provide, refer for, or pay for elective abortions, abortifacient drugs, contraceptives, assisted reproductive procedures such as in vitro fertilization, and sterilizations. Their determined effort to eviscerate the concept of individual conscience and the freedom to follow one’s religious, moral or ethical beliefs from the medical profession has resulted in the following:

• Catholic Charities in New York and California being forced by their state supreme courts to face the unenviable choice of offering healthcare coverage for contraceptives (even though the use of artificial contraception violates long-standing Catholic teachings) or, alternatively, to eliminate its prescription drug benefit for its employees (in contravention of Catholic Church teachings concerning the provision of just wages and benefits).
• At the behest of the Governors of Illinois and Washington, pharmacy owners in those states have been directed to dispense emergency contraceptives regardless of moral, religious, or conscience objections.
• New Mexico refusing to approve a community-owned hospital lease because of the hospital’s refusal to perform elective abortions.

Sadly, these examples represents only a small sampling of the mounting attacks on the rights of healthcare professionals to provide medical care without violating their consciences. Although the U.S. Constitution protects the free exercise of religion, allowing one to follow what his or her conscience morally dictates, the abortion lobby and their allies are attempting to turn the debate into a referendum on alleged “refusals” to provide women “access” to controversial reproductive procedures.

Notably, the most recent and pressing threat to freedom of conscience has come from within the healthcare profession itself. In November 2007, the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG) issued a policy statement entitled “The Limits of Conscientious Refusal in Reproductive Medicine.”² The controversial document provided that:

1. Pro-life physicians must refer for abortion: “Physicians . . . have the duty to refer patients in a timely manner to other providers if they do not feel they can in conscience provide the standard reproductive service that patients request.”
2. Pro-life physicians should relocate to refer patients to nearby abortionists: “Providers with moral or religious objections should . . . practice in proximity to individuals who do not share their views . . . “
3. Patient autonomy trumps physician’s conscience: A physician may not exercise his or her right of conscience if that might “constitute an imposition of religious or moral beliefs on patients.”
4. Conscience amounts only to a subjective feeling and not to a well-grounded moral or religious belief system or a well-established constitutional principle: “An appeal to conscience would express a sentiment such as ‘If I were to do ‘x,’ I could not live with myself, I would hate myself, I wouldn’t be able to sleep at night.”

By the end of the year, the American Board of Obstetrics and Gynecology (ABOG), which certifies obstetricians and gynecologists, joined the assault against physicians’ freedom of conscience. In issuing its 2008 Maintenance of Certification Bulletin,³ ABOG decreed that physicians may now lose their certification for “violat[ing] ABOG or ACOG rules and/or ethics principles . . . ” Thus, refusing to comply with ACOG’s policy regarding referrals for abortion would endanger a physician’s ability to maintain his or her certification which, in turn, would put the physician’s hospital or staff privileges and ability to practice and earn a living at risk.

Thankfully, this imminent and invidious threat to freedom of conscience was immediately denounced and challenged by physicians, members of the Bush Administration (including Secretary of Health and Human Services Michael Leavitt), the U.S. Conference of Catholic Bishops, pro-family policy groups, and legal organizations like Americans United for Life (AUL). These groups and individuals are seeking to have ACOG’s policy statement rescinded and to have ABOG expressly affirm that physicians’ certifications will not be dependant on their willingness to violate their consciences by referring patients for abortions or other controversial, elective procedures.

Historical Perspective on Freedom of Conscience

Often thought of as a contemporary problem, the issue of rights of conscience was referenced and considered by our Founding Fathers. For example, Thomas Jefferson wrote, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Traditional western thought has understood that individual conscience is a guide for action and is indispensable to appropriate action.

Further, conscience is at the heart of the American experience. Most Americans recognize the religious freedom found in the First Amendment of the United States Constitution. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

What many Americans may not realize is that an early draft of the Amendment written by James Madison included the following: “The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretest infringed. No state shall violate the equal rights of conscience of the freedom of the press, or the trial by jury in criminal cases.”

Thus, conscience protections did not spring up recently — say, during the Vietnam War era — but are a long-standing part of the nation’s baric. It is also a pluralistic right, one embraced by Christians and non-Christians alike. It is not based on respecting one faith but respecting the integrity of all individuals.

Legal Protections for Healthcare Freedom of Conscience:

Forty-seven states provide some degree of protection for healthcare rights of conscience. Two states, Illinois and Mississippi, have laws providing broad protections for all healthcare providers in all healthcare settings. Forty-five states have more narrow protections, usually for doctors and related to abortion service. Conversely, three states, Alabama, New Hampshire, and Vermont, provide no protection for conscience.

Federal law includes nineteen separate statutory protections for conscience rights.⁴ Congress first addressed the issue of conscience rights for healthcare providers just weeks after the U.S. Supreme Court handed down Roe v. Wade. In 1973, Congress passed the Church Amendment (named for its sponsor, Senator Frank Church). The Amendment provides that the receipt of federal funds in three federal programs cannot be used as a basis to compel a hospital or individual to participate in an abortion or sterilization procedure to which the hospital or individual has a moral or religious objection.

Federal law also provides broad protections from government discrimination for healthcare “entities” and individual providers who decline to participate in abortions.

The most recent federal conscience protection, the Hyde-Weldon Conscience Protection, provides that no federal, state, or local government agency or program that receives funds in the Labor/Health and Human Services appropriations bill may discriminate against a healthcare provider because the provider refuses to provide, pay for, provide coverage of, or refer for abortion. The Amendment is subject to annual renewal. Moreover, it has survived two separate legal challenges in federal court.

Informing the National Debate Over Freedom of Conscience:

In the ongoing debate over freedom of conscience, misinformation and hyperbole abound (especially from those seeking to coerce conscience). However, a full and fair debate of the issue requires an understanding that:

• Healthcare is not a commodity, it is service. Those in the field are not clerks or automatons, but serious professionals trained to provide specialized care. As professionals, they engage in decision-making that is informed by their intellects as well as their consciences. Thus, patients’ desires and choices do not and should not trump the conscience of healthcare providers.
• Conscience is subjective but not relative, and is defined by the individual through his/her religious faith, morality, or ethics. Conscience is applied to all actions and decisions and cannot be ignored or compartmentalized.
• Freedom of conscience is an American ideal. That is, conscience is the freedom from coercion (by the government or other individuals) to act against one’s will.
• Conscience is a “check and balance” in a healthcare provider’s decision-making process. In the rapidly developing medical field, ethical challenges abound. We want our medical professionals to exercise ethical behavior (i.e., behavior in accord with their conscience).
• The strategy being used by abortion supporters is clever and chilling. If they can create legal precedent to compel violation of conscience for one procedure (e.g., dispensing contraceptives) or group of healthcare providers (e.g., obstetricians and gynecologists), they will have established the legal precedent necessary to compel doctors to actively participate in surgical abortion and to compel all healthcare providers to participate in other objectionable procedures and services.
• Opponents of rights of conscience argue that that only individuals can or should have (limited) rights of conscience. This is short-sighted and purposely misunderstands the notion that the mission of an organization or institution (such as a public or private hospital or a healthcare insurer) is informed by the individuals controlling that organization or institution.

Responding to Common Myths About Freedom of Conscience:

Further, it is also important that common myths and “scare tactics” used by those seeking to subvert or eliminate conscience are effectively countered. Here are the most common arguments proffered by abortion proponents and the facts that undercut those arguments:

Myth: It is unconstitutional for healthcare providers to refuse to provide abortion because women have a right to obtain abortion with no undue burden.

Fact: First, there is no right of access to abortion. In fact, the abortion right announced in Roe v. Wade⁵ and affirmed in Planned Parenthood v. Casey⁶ is the right of a woman to choose whether to terminate a pregnancy without interference from the government. Those cases cannot be read to give any patient, let alone the government, the authority to violate the fundamental freedom of conscience by forcing a healthcare provider to perform an abortion or any other controversial procedure.

Laws that protect the civil rights of healthcare providers do not forbid women from obtaining abortions, contraceptives, or other procedures. They merely protect healthcare providers from acting contrary to their consciences by providing them a right to refrain from participating in those procedures.

Myth: The legal protection for healthcare providers’ rights of conscience will endanger the lives of patients because it will allow healthcare providers to decline to provide healthcare services and thereby deny access to patients.

Fact: Rights of conscience protections affirm the need to provide quality care to patients and do not interfere with existing medical malpractice standards. They merely acknowledge that certain demands of patients, usually for procedures that are life-destructive and not life-saving, must not be blindly accommodated to the detriment of the rights of healthcare providers

Individuals and institutions do not lose their right to exercise their moral and religious beliefs and conscience once they decide to become healthcare providers. Nothing in the laws protecting healthcare rights of conscience prevent others from providing the healthcare service to which a conscientious objection has been made. Conscientious objections are most often raised concerning elective services, such as abortion, contraception, sterilization, physician-assisted suicide, and the withdrawal of nutrition and hydration, rather than necessary or lifesaving services Therefore, the lack of participation in these practices by a healthcare provider or institution would not endanger the lives of patients.

Finally, abortion proponents are increasingly couching their arguments with the language of women’s “right” to healthcare access. It is worth noting that there is no fundamental right to healthcare and therefore no overriding duty to provide it against your conscience. Also, the term “access” is a red herring, as there is no real problem with a patient going to another healthcare provider for service.

Conclusion

The debate over healthcare rights of conscience is growing and becoming more contentious. In particular, we should expect to see more attempts to limit pharmacists’ rights of conscience, in large part because the mainstream media will continue to assert that the pharmacists’ rights of conscience are out of touch with mainstream American opinion, endanger the continued provision of health care, and are burdensome to patients, especially women. Moreover, controversial research (such as cloning and destructive embryo stem-cell research) and the ongoing debate over the end of life will make conscience protection increasingly important.

Endnotes

1. For more information on healthcare rights of conscience, go to http://www.aul.org/Rights_of_Conscience (last visited, May 13, 2008).

2. http://www.acog.org/from_home/publications/ethics/co385.pdf 

3. http://www.abog.org/pdf/MOC2008.pdf 

4. For a compilation of these protections, see www.usccb.org/prolife/issues/abortion/fedlawsconsciencerghts.shtml (last visited, May 13, 2008).

5. 410 U.S. 113 (1973).

6. 505 U.S. 803 (1992).

Mailee R. Smith
Staff Counsel
Most state legislative sessions have ended for 2008, and the results in the area of rights of conscience are fairly depressing.  A disturbing 60 percent of all conscience-related bills considered this year were compulsion bills.  In other words, these were not bills aimed at protecting the conscientious and moral beliefs of healthcare providers; instead, these were bills aimed at forcing pharmacists and other healthcare providers to provide drugs and treatments contrary to their moral beliefs.

Clearly, abortion advocates are not pulling any punches when it comes to advancing their ultimate agenda: forcing all healthcare providers to choose between providing abortion-on-demand and any other morally problematic procedures or drugs, or leaving the profession.  And for a nation already facing a healthcare crisis caused by an insufficient number of healthcare providers to account for our ever-growing demand, that is a dangerous ultimatum.

This ultimatum—compromise your beliefs or get another job—cannot be dismissed as mere “rhetoric” put forth by those in the pro-life community.  It is more of a battle cry that is growing not only in the pro-abortion movement, but even among certain medical groups.  Several months ago, the American College of Obstetricians and Gynecologists (ACOG) issued an ethics opinion that completely disregarded the fact that physicians have conscience rights guaranteed under federal law.  The American Board of Obstetrics and Gynecology (ABOG) subsequently issued a statement basically adopting ACOG’s position, and potentially forcing physicians to either violate their conscience by referring for abortions, or risk losing their board certification.

Fortunately, these actions did not go unnoticed by the U.S. Department of Health and Human Services (HHS).  In August, HHS Secretary Mike Leavitt announced a proposed regulation that would increase awareness of, and compliance with, three separate federal laws that protect the rights of conscience of federally funded healthcare providers.  These federal laws include the Church Amendments, which protect healthcare providers from discrimination by recipients of HHS funds on the basis of their refusal to perform or participate in any lawful health service or research activity; section 245 of the Public Service Health Act, which prohibits federal and local governments from discriminating against individuals and institutions who refuse to receive training in or perform abortions; and the Hyde-Weldon Amendment, which prohibits the provision of HHS funds to any federal, state, or local government agency or program that discriminates against individuals or institutions for failing to provide or pay for abortion.

Again, these are federal laws that are already in place.  HHS issued the proposed regulation because individuals and entities like ACOG and ABOG seem completely unaware of—or potentially utterly dismissive of—these federally-guaranteed conscience rights.  The proposed regulation will increase awareness of and compliance with these federal laws by, among other things, requiring recipients of HHS funds to certify compliance with the laws; designating an office to receive complaints of discrimination; and charging HHS officials with ensuring that the federal rules are followed.  The goal: ensuring that the public and members of the medical community understand that healthcare providers do not have to compromise their beliefs in pursuing their profession.

As Secretary Leavitt stated, “This proposed regulation is about the legal right of a health care professional to practice according to their conscience…. Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience.  Freedom of expression and action should not be surrendered upon the issuance of a health care degree.”

Unfortunately, the Supreme Court of California doesn’t appear to agree, and in August issued an opinion in demonstrating the dire need not only for compliance with federal law, but also the enactment of solid conscience protections at the state level.  The case, North Coast Women’s Care Medical Group v. Benitez, was brought by a lesbian woman who claimed that two physicians at North Coast refused to provide a certain nonessential, artificial insemination treatment because of her sexual orientation.  Truth be told—and the physicians tell it well in this case—the physicians told the women at the forefront of her medical care that, based upon their moral and religious beliefs, they could not provide that insemination process to any single woman, regardless of her sexual orientation.

Ms. Benitez sued.  In her legal arguments, Ms. Benitez actually compared physicians and medical facilities to skating rinks and barber shops.  Basically, her line of reasoning goes something like this: if a skating rink or barber shop opens, the owner can’t discriminate against the patrons who enter the facilities.  Likewise, physicians can’t “discriminate” against patients who show up in their offices demanding nonessential treatments—no matter how morally problematic those nonessential treatments may be.  Using terms such as “for-profit medical practice,” “business establishment,” “marketplace,” and “commercial opportunity,” Ms. Benitez denigrates the noble practice of medicine to a mere business transaction.

And again, the battle cry was the same: provide whatever nonessential and morally problematic treatment I demand, or get out of the business.  Only this time, Ms. Beneitez couched her battle cry in terms of “accommodation.”  Physicians can be “accommodated” in their beliefs by choosing a different line of work—medical or otherwise.  Few would argue that this could ever qualify as a rational “accommodation.”  Instead, it is just a re-packaged version of the “compromise or get out” ultimatum.  And of course, Ms. Benitez failed to acknowledge that physicians have free exercise rights guaranteed by the federal Constitution.  In other words, it was Ms. Benitez that demonstrated complete intolerance for the lifestyle decisions of her physicians.

And the California Supreme Court bought it—hook, line, and sinker.  The Court adopted her extreme position that, once entering the profession, physicians must treat every patient that comes in their door with any nonessential treatment that patient demands—regardless of moral or religious beliefs.  This holding leaves no room for good faith medical judgment or a check on demanding patients, leaving physicians at the whim of patients who could claim discrimination in just about any conceivable scenario.  No room is left for a balancing of physician and patient rights.  Patient “rights” trump, no matter what: Patient “rights” trump physician rights.  Patient “rights” trump moral beliefs.  Patient “rights” trump the guarantee of free exercise under the federal Constitution.

But as HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D., stated, “[H]ealth care providers shouldn’t have to check their conscience at the hospital door.”  The current federal administration “gets it.”  The conscience rights of physicians and other healthcare workers must be protected.  Now is the time for states to enact laws protecting the conscience of all healthcare providers in all healthcare settings—and especially in the setting of nonessential medical treatment—before another state court fails to “get it.”  And public health in this nation suffers for it.

This article was originally published by The Culture of Life Foundation http://culture-of-life.org//content/view/508/1/ Reproduced by permission