President Bush eager to nominate anti-abortion Supreme Court
justices, supporters of Roe vs. Wade brace for the 1973
rulings most serious challenge ever
Thirty years ago, the abortion question in the United States
seemed so clear-cut.
Like it or not, legalized abortion was here
to stay—so even the most ardent abortion opponents thought
at the time. With the 1973 Roe vs. Wade Supreme Court
decision affirming a woman’s right to abortion, the legal
debate was settled, even if the moral debate remained unresolved.
a generation later—a generation in which millions of American
women have come of age expecting abortion to be available
and knowing no other scenario—many who follow the abortion
issue in the United States say that the Roe decision
is facing its most critical challenge ever.
It is a question of timing more than anything else, an alignment
of the planets that has never before happened in this exact
way in the landmark decision’s history, and that could mean
its demise. That possibility comes not so much from any
one decision pending before the Supreme Court as from the
weight of 30 years of controversy bearing down on the court
at a critical period.
Given that President George W. Bush is both relatively popular
and unremittingly opposed to abortion, and given that the
Supreme Court could undergo any one of several possible
political shifts in its membership any day now, abortion
supporters are bracing themselves and abortion opponents
are keeping their fingers crossed.
been a long time coming. I think Roe vs. Wade’s time
has come,” says Lori Hougens, acting executive director
of the New York State Right to Life Committee. “I think
this could very well be it.”
Others agree with that assessment.
terrified, because this is really an item that is high on
our president’s agenda,” says gynecologist Fred Storm, medical
director at Upper Hudson Planned Parenthood for the past
16 years, and one of the few doctors in the Capital Region
who performs abortions in a clinic.The Supreme Court is
an appointment for life, but in reality very few modern-day
justices plan to stick with the bench till death do them
part. And that’s why John Paul Stevens, a strong supporter
of abortion rights and at age 82 one of the oldest justices
ever to sit on the court, is something of a curiosity, says
Stephen Clark, an assistant professor at Albany Law School.
could have left during either of Clinton’s two terms if
he wanted to be replaced by a liberal,” says Clark, who
teaches the Roe decision in his constitutional law
class. “He seems like a guy who likes his job.”
to the cause: a protester in front of Planned Parenthood.
Phoot by Joe Putrock.
fact that Stevens stayed on means that infirmity or death
could remove him from the court during the Bush administration.
Court watchers think it’s possible that two other justices
viewed as Roe supporters—Sandra Day O’Connor and
Ruth Ginsburg—may not last through another six years of
a Bush administration, either. And if one or more Roe
supporters is replaced by a justice more likely to side
with those who oppose abortion, it may only be a matter
of time before the court decides to hear a case that could
overturn the 1973 ruling.
Stevens and O’Connor, along with Justice Anthony Kennedy,
crafted the compromise in the 1992 Pennsylvania case, Planned
Parenthood vs. Casey, that abortion opponents had hoped
would overturn Roe altogether.
The Casey decision stemmed from Pennsylvania’s requirement
that a woman seeking an abortion comply with certain conditions
that critics said were intended to delay the abortion and
ultimately dissuade her from going through with it. For
example, a married woman had to sign a statement that her
husband had consented to the abortion.
In deciding to uphold Roe with a somewhat-qualified
endorsement, Stevens, O’Connor and Kennedy established the
standard of the “undue burden”: States could impose restrictions
on abortions as long as those restrictions did not place
an undue burden on a woman’s access to abortion. The era
of 48-hour waiting periods, mandatory pre-abortion counseling
and familial consent forms was born.
is not even deemed to be precedent anymore, because Casey
so altered the standard to allow abortion,” Clark says.
O’Connor, 72 and a cancer survivor, has long been thought
to be yearning for retirement. Ginsburg, 69, is under treatment
for colon cancer.
are all sorts of rumors: She’s doing well, she’s doing poorly,”
says Clark. “There’s some fear she may be leaving in the
next six years, and she’s one of the progressives. If any
of those three leave, you’d have five votes to overturn
[legalized abortion as established in Casey], and
I’m not optimistic.
you assume a second Bush term, then that’s six more years
of Bush selecting replacements for whoever leaves. Stevens
cannot possibly last six more years.”
T hese are hopeful times for opponents of abortion. “I think
we have people who have a strong belief in the sanctity
of life at the federal level,” says Meg Bergh, director
of the Family Life Office for the Roman Catholic Diocese
of Albany. “It’s just as important today as it was 30 years
ago to push for the sanctity. The composition of the Congress
is really positive for life.”
advocate: Lori Hougens, New York State Right to Life
Committee. Photo by Joe Putrock.
Smith, president and chief executive officer of Family Planning
Advocates of New York State—a coalition of women’s health
and reproductive services agencies—agrees that the United
States government in the Bush years is focusing extensively
on issues of family planning and abortion rights. Only she
doesn’t cast that focus in quite the same light as Bergh.
just step-by-step-by-step wearing away at women’s right
to choose,” Smith says. “One of the very first actions of
the Bush administration was to put back in place the global
gag rule. The women of the world were hurt terribly by that.
The Bush appointments to every level of the judiciary have
to pass a test—and have it in writing—of being virulently
Under what supporters call a victory for international abortion
opponents and critics call the “global gag rule,” the United
States prohibits foreign organizations that receive U.S.
health funds from providing abortion services, counseling
or advocacy. The policy began under the Reagan administration
in 1984 and continued until President Clinton overturned
it as one of his first acts in office in 1993. President
Bush reinstated it two years ago, as one of his first
acts in office.
is a time of great optimism for us,” says Hougens, who says
there is still “a lot of work to do.
someone who is pro-life in the White House is a great thing,”
she says. “It’s very thrilling. I think that President Bush
is compassionate, he’s decent, he truly cares about people,
but he certainly doesn’t think you do that by stepping over
the bodies of babies.”
But no matter how committed Bush is to outlawing abortion,
any decision at the federal level that would overturn the
national right to abortion and throw it back to the states
to decide individually would not come easily.
one of the reasons that O’Connor, [David] Souter and Kennedy
chose not to override Roe in Casey,” says
Clark. “One of the things they cited is, we have this generation
of women who grew up having this right, expecting this right
to exist, and we’re not prepared to change that. It could
be pressure to a Bush appointee.”
Not to mention that a Bush appointee can’t be counted on
to follow any marching orders from the White House. Consider
the case of Justice Souter, appointed to the Supreme Court
in 1990 by the then-anti-abortion first President George
Bush. Souter became the Earl Warren of his day, deciding
again and again for abortion rights and refusing to join
the anti-Roe faction of the court.
And there are all those other issues hanging around—the
economy, the war on terrorism, a possible war in Iraq. Given
a chance before the 2004 election to appoint a justice to
the Supreme Court who is absolutely, positively committed
to overturning the federal right to abortion, the Bush administration
might think twice, Clark notes.
With a slender Republican majority in the Senate and the
certainty that throwing abortion back to the states would
make the next presidential election a single-issue campaign,
“I’m not sure why Karl Rove would want it overturned,” Clark
says, in a reference to the influential strategist and advisor
of Bush’s inner circle.
not absolutely convinced that it would be overturned, because
if it was, it would skew the balance of power against the
Republican Party,” says the Rev. Tom Davis, who for many
years was chaplain at Skidmore College.
In the 1960s, Davis was active in a group called the Clergy
Consultation Services on Abortion, a national organization
that identified and screened doctors who would perform abortions
before they were legal anywhere in the country. The group
disbanded once the Roe case was decided.
they overturned the decision, it would throw it to the states,”
Davis says. “I would be stunned. But no one can say for
sure what the court will do.”
The trial of James Kopp is expected to begin in Buffalo
next month, putting New York in the national and even international
spotlight of the abortion debate once again. Kopp, who was
extradited from France last spring following an international
manhunt, has confessed to gunning down Dr. Barnett Slepian,
an OB/GYN in Buffalo who had continued to perform abortions
at a clinic there despite numerous threats and the fact
that Buffalo had been the scene of some of the most vehement
anti-abortion protests in the country. (Kopp, in a jailhouse
interview with the Buffalo News last year, has said
he intended to wound Slepian, not kill him.)
The Kopp trial will be the latest chapter in the abortion
debate in New York, which has been a flash point for the
controversy ever since New York became the first state to
legalize abortion, in 1970. New York’s abortion law remains
intact, although abortion supporters say that access has
lessened over the years.
are many counties in New York state that are not providing
abortions at all,” says JoAnn Smith. “I do know there are
women in northern New York state who are traveling four
or five hours to get a medical procedure that is safe and
legal. There are fewer abortion providers in the United
States and in New York state.”
Still, there has not been a serious legislative challenge
to New York’s abortion law since the late 1970s, and Smith
does not foresee a time when New York will impose a waiting
period on a woman seeking an abortion.
Mifepristone, (also known as RU 486), a pill that induces
abortion and can be used in some cases as an alternative
to surgical abortion, is gaining wider acceptance in New
York, Smith says. However, because it is still administered
mostly in settings that also provide surgical abortions,
it’s still difficult for most women to avoid protests at
clinics—whether they are seeking access for an abortion
or for another service.
Medicaid funding for abortions in New York undergoes a challenge
in the New York State Senate just about every year, Smith
says. But overall, she sees New York’s abortion law remaining
intact, no matter what happens at the national level.
York has, from the beginning, a proud history that abortion
will be available, that there will not be restrictions on
it,” she says. “I have a hard time imagining that Roe
actually could be overturned, because I think as the
danger of that becomes very apparent, people are getting
more concerned. The thing I think is more likely to happen
is a thousand incremental steps that could restrict choice.”
Lori Hougens believes abortion will eventually be illegal
throughout the United States, but not in her lifetime.
human-rights atrocities end, but they take sometimes hundreds
of years,” she says. “I hope to God I’m wrong. I’d like
it to end tomorrow.”
zone: escorts for Planned Parenthood clients.
Photo by Joe Putrock.
Christmas, Ron Golden gave Elizabeth Pearson a necklace.
What was special about the gift wasn’t the necklace
itself—Pearson doesn’t wear necklaces, and probably
will give it to a granddaughter—but the fact that
every Friday morning, Golden and Pearson play adversarial
roles in front of Upper Hudson Planned Parenthood
on Lark Street in Albany. Golden, a staunch opponent
of abortion, does a prayer vigil and protest every
week on the sidewalk in front of the clinic; Pearson,
a staunch supporter of women’s right to choose, works
Fridays as a volunteer escort for patients coming
into the building.
On Fridays and especially Saturdays since 1986, the
“pro-life” demonstrators have been a highly visible
(and audible) presence in front of Planned Parenthood,
marching, carrying signs with messages like “THEY’RE
KILLING BABIES HERE” and “A BABY IS A PERSON NO MATTER
HOW SMALL,” and singing (with no apologies to John
Lennon) “All we are saying is/Give life a chance.”
The orange-vested escorts stand near the doorway,
poised to accompany patients who otherwise might be
intimidated by the demonstrators. The escorts wish
the protesters weren’t there; the protesters wish
Planned Parenthood weren’t giving them a reason to
But while the two groups are polar opposites on an
issue that has spawned much anger, hostility and even
violence, they are also human beings who share the
same sidewalk week after week—and over the years,
their feelings toward each other have warmed.
Several weeks ago, when the protesters were attacked
by a man who tried to smash their video camera, the
escorts invited them inside the building to warm up
and get away from the attacker, says Dennis Wolterding,
a member of Citizens Concerned for Human Life Inc.
and a regular at the weekly pickets since 1986. “Some
very lovely things have happened over the years between
the escorts and us,” he says.
Golden and Pearson have known each other for some
years now and are quite comfortable in each other’s
presence (prior to this year’s Christmas gift, Golden
also had given Pearson a statue of the Lady of Guadalupe,
which is currently in her backyard). And with the
recent attack in mind, Golden is comforted to know
that Pearson is a Quaker. “I feel secure when she’s
here,” he says, “because I’m here alone, and vulnerable.
I know she’s opposed to any kind of violence; if anyone
attacked me, she’d call the cops. And I’d do the same
Wolterding also is a Quaker, and has known Pearson
since the days when they attended Albany Friends Meeting
together. Alluding to the fact that some liberal passersby
might assume that the protesters are raving right-wingers,
Wolterding ticks off some of his own liberal positions:
He’s against the death penalty, and against “almost
every kind of war.”
close to being a pacifist,” he says.
And while his take on abortion is as blunt as ever—“genocide
against unborn Americans, whose only crime is that
they’re not wanted by their mothers”—he is tolerant,
perhaps more so than he once was, of abortion-rights
supporters and their right to have a different opinion.
“There are a hell of a lot of good people who consider
themselves pro-choice,” he says. “I have dear friends
who are ardently different from me on this issue.”
Wolterding recalls a woman who used to be an escort
at Planned Parenthood, and a chance conversation one
morning that helped melt the ice between them. “I
had been picketing for several years,” he recalls,
“and I had gotten the impression, because she was
very quiet and rarely made eye contact, that she was
very hostile. Then one day, I just happened to be
talking to one of the other pro-life picketers about
my daughter, about how she tended to lose concentration
from time to time, being a pre-teenager.
this escort just happened to pipe up and say, “Don’t
worry about Jane, she’s brilliant.” And it turned
out that this escort was my daughter’s teacher, and
liked Jane very much. I was taken aback. In that moment,
our relationship could never be the same as it was,
because we agreed on something very important to me.”
Patricia Rose, who has been an escort at Planned Parenthood
for seven years, and who saw the results of “botched-up
jobs [by] the neighborhood back-alley abortionists”
as an emergency-room technologist in the pre-Roe
vs. Wade days, is more guarded when asked about
cordiality between escorts and picketers. “The anti-choice
people have a right to be there and express an opinion,”
she says. “There’s two sides to the issue, and I respect
their beliefs, even though I don’t agree with them.”
But, she adds, “I wish that they would not be there
in front of Planned Parenthood, because I feel that
they might be frightening teenagers and preventing
them from going in to get birth-control information
before they even make the decision to have sex or
not. And I firmly believe that birth control should
be available to prevent the need for abortion. . .
. Those of us on the pro-choice side, we hate abortion
also. We wish that there didn’t have to be abortion.”
And Rose points out that the board of Planned Parenthood
frowns upon socializing between escorts and protesters
for one very practical reason: Patients who might
be intimidated by the demonstrators are more likely
to feel secure if there is a clear line separating
those who are on their side and those who are not.
really try not to interact,” she says, “because I
really don’t want to confuse the people that are going
into Planned Parenthood.”
Ironically, it was the board’s disapproval of such
interaction that led to Elizabeth Pearson’s volunteer
day being changed to Friday from Saturday, when she
often talked to her friend Dennis Wolterding. Pearson
claims she would talk to him to keep him from singing,
because, she says, “his singing is terrible.”
But “the board called me in and said, we don’t want
you talking to him.” And they moved her to Fridays.
I tried to explain to the people on the board was,
it’s an issue—it’s not the person,” Pearson says.
“It’s an issue, and I am very much in favor of choice.
[But] there are certain people on our side of the
street who turn their backs on [the picketers], won’t
look at them, frown at them. That’s ridiculous. They’re
still human beings.”