Alito, Abortion, and the Future of Roe

Lots and lots going on this week in the reproductive rights arena. Ayotte v. Planned Parenthood is being argued right now, and is virtually guaranteed to have a major impact on the future of reproductive rights — if only to tell us how closely the Roberts court is willing to honor precedent. I wrote a little bit about this case yesterday, but there are still a few points that I think need clarification. At issue is a New Hampshire abortion statute that has not yet been instituted. The statute requires parental notification and a 48-hour waiting period after that. It has an exception for life-threatening conditions, but not for health conditions, despite the fact that a 2000 Supreme Court ruling requires that abortion restrictions have an out for the pregnant woman’s health. The Bush administration supports the law, but their reasoning seems a bit flawed:

Solicitor General Paul Clement, arguing for the Bush administration on behalf of the New Hampshire law, said critics of the New Hampshire statute had focused on “a one in a thousand” circumstance in which a teen-ager might need an abortion quickly, and that the entire statute should not be undone.

All sides agree that circumstances in which a minor needs an abortion for emergent health reasons are rare. But does rarity justify the upholding of a law that could potentially cause serious harm, even if that harm only affects a handful of people? What’s the threshold at which we decide “enough” women will be affected — 100? 1,000?

The statute includes a judicial bypass option, in which a minor with an emergent health-threatening condition can get permission from a judge to get around the parental consent and waiting period. But, as the attorney for Planned Parenthood argued, ” “Once a minor arrives in the emergency room, it is too late for her to go to court.”

That point was met by a fairly creative proposal from Justice Scalia:

Justice Antonin Scalia wondered what would happen if the state created “a special office, open 24 hours a day” to field just such emergencies: ” ‘This is the abortion judge.’ It takes 30 seconds to place a phone call.”

Or, we can just let doctors do their jobs. If a teenage girl comes into the emergency room with a condition that will leave her sterile unless she has an abortion right away, let her doctor perform the procedure. How will telephoning a judge, who probably has no medical background and little ability in a 30-second phone call to determine the exact circumstances, be at all helpful or even practical?

This seems fairly simple to me. If New Hampshire wants to keep their statute, fine — just toss in a health exception. I don’t like parental notification laws, but the Court has ruled them constitutional and not unduly burdensome if they include a judicial bypass and a health/life exception. It’s not asking so much that New Hampshire stick to that standard, and that the Bush administration and conservative state governments not use the physical health of minor women to gain political capitol or make a point about their anti-choice beliefs.

In other news, let there be no doubt about how Supreme Court nominee Samuel Alito feels about Roe: He wants it overturned. From a 1985 document:

Alito wrote in the memo, released by the National Archives on Wednesday, that ”no one seriously believes that the court is about to overrule Roe v. Wade.”

But, he said, ”By taking these cases, the court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

Well that clears that up.

I found this article via Amanda, and it’s another must- must- MUST-read. It’s a woman’s story of her D&E abortion, the procedure that the “partial-birth” abortion ban would have made illegal. These procedures, as the article details, are already incredibly difficult to access. This is another one of those abortion-related things (like the New Hampshire law) that affects a very tiny minority of women; yet its impact on those women can be tremendous. Read the article, and consider the women who find themselves in similar situations, but whose fetuses aren’t dead — those women whose fetuses have birth defects that are incompatible with life, like anencephaly. Should the “partial-birth” abortion ban be upheld, these women will no longer have access to what they and their doctors may deem the safest procedure for them.

And finally, a TimesSelect article about the waning power of Roe v. Wade. It is fantastic, and an absolute must-read. Because it’s TimesSelect, I’ll paste it below:


A lot has happened since January 22, 1973, when the Supreme Court handed down Roe v. Wade, its momentous 7-to-2 decision that recognized a woman’s constitutional right to make her own child-bearing decisions and legalized abortion nationwide. The cold war ended, and so did apartheid in South Africa. E-mail, cell phones, iPods and Diet Coke appeared. There have been six new presidents in the White House, including two named George Bush.

Yet for all that has happened in the nearly 33 years since the court declared that the constitutional right of personal privacy includes the abortion decision, one thing hasn’t changed: America remains locked in a bitter and seemingly never-ending battle over abortion. Even though polls show that a healthy majority of Americans still support Roe’s essential holding, three decades of clinic violence and relentless harassment, combined with strategic court challenges and muscular political action by anti-choice forces have taken a serious toll.

Technically, Roe v. Wade still stands. But for the moment, at least, its well-organized and well-funded opponents are winning the ground war.

Thanks in large part to Justice Sandra Day O’Connor, the practical-minded conservative jurist whom Judge Samuel Alito, Jr. has been nominated to replace, Roe v. Wade’s core holding, placing the abortion decision in the hands of women and their doctors up until fetal viability, remains the law of the land. But wide-ranging restrictions and dwindling access to safe and legal abortion services is rendering reproductive rights merely theoretical for a growing number of women around the country – especially those who are poor, young, or live in rural areas.

Incrementally, and largely under the national radar, formidable obstacles have been placed in the way of women trying to access abortion services. As a result, the fundamental right the Roe decision supposedly protects is progressively disappearing in much of the nation.

Among the most significant roadblocks:

• A shortage of trained doctors and health care facilities offering abortion services.

• Mandatory waiting periods and demeaning state-scripted “counseling” sessions that lack a real medical justification and sometimes require two clinic trips on separate days, creating a special hardship for poor women who lack transportation to easily make multiple clinic visits, and who live in areas without a nearby abortion provider.

• Parental notification and consent laws that are supposed to improve family communication but actually serve to jeopardize the health and well-being of frightened young women, including victims of incest and other abuse who have good reason not to inform the adults in their life.

• Longstanding restrictions on the use of Medicaid, and other government money, to help women pay for abortions.

• So-called “TRAP laws,” which single out abortion providers for onerous and expensive “safety” rules enacted for the purpose of harassing existing providers, and deterring the development of new providers.

The driving force behind these restrictions has been state legislatures, which have enacted more than 400 measures restricting abortions in the last decade alone. But in November 2003, Congress passed the first federal ban on an abortion procedure – an only slightly modified version of Nebraska’s “partial birth” ban the Supreme Court rightly struck down just three years before, with Justice O’Connor casting the deciding vote.

The majority found that the broad and imprecise measure, which spawned copycat legislation in at least 30 states, could be read to ban the most common abortion procedure used after the first trimester, and also lacked the constitutionally-required exception to protect the health of the woman.

With Justice O’Connor about to leave the court, and anti-abortion Republicans holding the upper hand in the judicial nomination process, there has naturally been a lot of speculation about whether Roe v. Wade will survive. Roe’s future is undeniably crucial. The situation for women seeking to terminate an unwanted pregnancy would be far worse if Justice O’Connor had not cast the crucial fifth vote in 1992 to save Roe from being overturned. A ruling directly toppling Roe would once again give states authority to ban abortion, and a detailed 2004 analysis by the Center for Reproductive Rights, a leading pro-choice legal advocacy group, suggests as many as 30 states would do so.

But the single-minded focus on Roe – and the tea-leaf reading about where Judge Alito really stands on it – is distracting from the even more immediate practical threat to women’s reproductive freedom posed by the rapidly spreading web of anti-choice restrictions and regulations. There has been a stealthy backdoor repeal of Roe underway for years. As Judge Alito’s confirmation hearing draws closer, the discussion of Roe’s future should broaden into one about the whole array of ways in which abortion rights are under assault.

*I. What Roe v. Wade Established*

Although Roe is a famous case, its precise holding is not well understood. The court struck down a Texas law that made most abortions illegal. But it neither endorsed abortion nor closed its eyes to the profound nature of the abortion decision or “the deep and seemingly absolute convictions that the subject inspires.” What the court actually did was to strike an astute constitutional compromise: the Roe decision declared that a woman’s right to choose whether to terminate her pregnancy is a fundamental liberty interest but that it must be balanced against the fetus’s growing potential for life.

To establish a framework for evaluating abortion restrictions, the decision divided pregnancy into three trimesters, and delineated the degree of allowable regulation during each. In the first trimester, the court left the abortion decision solely to a woman and her doctor. In the second trimester, the decision permitted state regulations that were narrowly tailored to promote the health of the woman. In the third trimester – the point at which the fetus becomes viable outside the mother’s womb – the decision recognized the state’s authority to impose regulations to protect the fetus, or even ban abortion, provided exceptions were made to protect the life and health of the woman.

It has become fashionable, even among self-proclaimed supporters of abortion rights, to bash Roe v. Wade, and its author, Justice Harry Blackman, for unwarranted “judicial activism” and “legislating from the bench.” These critics fault the Roe majority for inventing a new privacy right found nowhere in the Constitution, and using it to overturn abortion restrictions in 46 states. According to many critics, Roe was also a strategic mistake, truncating a percolating debate in state legislatures nationwide that would have ended criminal restrictions on abortion by democratic vote instead of judicial fiat.

These criticisms make for pithy sound bites, but they don’t hold up. It’s true that dividing pregnancy into three stages and coming up with different levels of permissible regulations for each may have given the decision a legislative feel. But courts engage in this sort of line-drawing all the time. The trimester framework made concrete Roe’s sensible balance between the right of women to control their bodies and government’s legitimate interest in protecting potential life. The decision recognized that the government’s interest increases as a pregnancy proceeds, but prevented government from imposing abortion restrictions prior to viability, except to protect a woman’s health, thereby preserving meaningful reproductive choice. That’s a far better approach than allowing government to smother the abortion option with needless regulation starting in the earliest weeks of pregnancy, as subsequent abortion rulings have done.

Wrong as well is the claim that the court engaged in unwarranted judicial activism when it grounded Roe v. Wade in a constitutional right to privacy “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The ruling is not perfect: Justice Blackmun, who served as general counsel to Minnesota’s renowned Mayo Clinic before becoming a judge, may have been better at articulating the harm done by interfering with a doctor’s ability to administer medical treatment than the harm inflicted on the woman. But Roe’s conclusion that a woman’s right to decide whether to become a parent deserves the highest level of constitutional protection required no giant jurisprudential leap. The Roe ruling flowed naturally from a line of previous privacy decisions that protected certain intimate personal
decisions from government interference. The most notable of these, the 1965 case, Griswold v. Connecticut, struck down a statute that made it a crime for married couples to use birth control.

Ruth Bader Ginsburg, who did much to advance the legal rights of women as a lawyer bringing test cases in the 1970’s, suggested in a well-publicized 1993 lecture at New York University Law School that Roe would have been more persuasive had it been grounded on the argument that abortion bans violate the 14th Amendment’s equal protection clause. Her point, that the inability of women to control their reproductive destiny prevents them from participating as equals in the nation’s political, social, and economic life, is a sound one, and Justice Blackmun and other pro-choice justices eventually came to embrace it. Upon his retirement in 1994, Justice Blackmun aptly described his much-beloved and much-reviled ruling in Roe as a necessary step toward “the full emancipation of women.” But for the court to have relied on that equality claim way back in 1973 would have meant propelling the court’s equal protection approach to a whole new level. Lawyerly and professorial objections aside, the offense to women’s dignity and privacy inherent in laws prohibiting abortion in the first phases of pregnancy, is something most people, women in particular, seem to get.

Critics of Roe’s reasoning but not its legal outcome – including Justice Ginsburg – have also wondered aloud whether abortion rights would be more secure today if the decision had been less expansive, giving state legislatures more time to liberalize abortion laws on their own. The extent to which courts should defer to elected legislatures on emerging rights issues is an interesting question. But any suggestion that Roe short-circuited a political process that was moving apace to end the criminalization of abortion is wildly inaccurate. As my New York Times
colleague Linda Greenhouse recounts in her recent book, “Becoming Justice Blackmun,” when the court took up Roe v. Wade, “(f)our states – New York, Washington, Alaska, and Hawaii – had repealed all criminal penalties for abortions performed by licensed doctors, up to specified points in pregnancy. Thirteen other states had passed ‘reform’ laws, expanding the circumstances under which abortion was permissible. But thirty-three states continued to outlaw nearly all abortions; in many of these states, there was little prospect for change.” Had the Supreme Court waited for the states to act, in other words, we would probably still be waiting.

The New York experience is telling. Three years before Roe v. Wade, in 1970, New York became the second state to legalize abortion, following on the heels of Hawaii, which repealed its criminal abortion law earlier that same year. But even in “liberal” New York, overcoming the heavy opposition, much of it from the Catholic Church, wasn’t easy. The bill that Governor Nelson Rockefeller signed into law cleared the state Assembly by just a single vote. Two years later, after the upstate Republican who cast that decisive vote was defeated for re-election, the Legislature approved a partial repeal of the state’s enlightened new abortion law, which was stopped from going into effect only by a gubernatorial veto. Nationally, whatever momentum there was toward meaningful abortion law reform seemed to quickly peter out. Between 1971 and 1973, the year of Roe v. Wade, not a single additional state moved to repeal its criminal prohibition on abortion early in pregnancy. This was noted by the prominent constitutional scholar, Laurence Tribe of Harvard Law School, in his 1990 book, “Abortion: The Clash of Absolutes.”

“There is little evidence,” Professor Tribe concluded, “that the United States was on the verge of emerging, in the early 1970’s, from the long shadow of shame that had branded women as blameworthy for extramarital sex and nonprocreative sex and that condemned them for choosing abortion even when the choice was a painful and profoundly reluctant one.”

On a more philosophical level, there are some issues that should not be left in the political arena, to be decided with finality by a majority vote. A woman’s right to decide whether to terminate her pregnancy in the earliest phases is surely one of them. The recognition of basic rights – such as the right to control one’s reproductive choices – should not be a popularity contest.

*II. Justice O’Connor’s ‘Undue Burden,’ and the Erosion of Roe*

Roe v. Wade established a single national standard making abortion legal, But it also accelerated the abortion wars.

Opponents of Roe turned to Congress, but met with only limited success. Their efforts to get a constitutional amendment declaring that human life begins at conception failed. So did their campaign for a dangerous court-stripping plan, which sought to take away the federal courts’
power to strike down state abortion restrictions. Anti-choice forces did, however, get new prohibitions passed on the use of federal money to pay for abortions, which create severe hardships for poor women to this day.

Anti-abortion groups became even more energetic at the state level. The political and religious right joined forces to push through a succession of state limitations aimed at making it harder for women to obtain an abortion, and serving up test cases they hoped would lead to the overturning of Roe. The court, its membership now changed from the bench that decided Roe, rejected some of these restrictions, but it approved others, on the fictional ground that they did not significantly interfere with the woman’s choice.

These rulings, culminating with the court’s splintered 1989 decision upholding Missouri’s aggressive attempt to restrict abortion in Webster v. Reproductive Health Services, fueled concerns that there was no longer a court majority that favored keeping Roe intact. When a
closely-divided court issued its much-anticipated 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, supporters of reproductive freedom breathed a sigh of relief. The decision, co-written by Justice O’Connor, sustained Roe’s core holding that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

But buried in the victory were seeds of defeat. The Casey majority sustained Roe’s bottom line, but, alas, not its overall approach.

The Casey decision abandoned Roe’s trimester framework. Instead, it told states they could impose restrictions throughout a pregnancy so long as they do not impose an “undue burden” on women seeking an abortion. In making this change, the 5-to-4 majority significantly watered down the constitutional protection afforded women’s private reproductive decisions.

In practice, the “undue burden” test crafted by Justice O’Connor has invited states to come up with ever more creative schemes to impede the exercise of the abortion right with needless regulation beginning in the earliest weeks of pregnancy, delaying abortions and increasing medical risks for many women, foreclosing abortion choice entirely for others.

In Casey itself, for example, the Supreme Court upheld Pennsylvania’s requirement that a physician must provide a woman with state-scripted information about abortion 24-hours in advance of a non-emergency abortion. To a majority of justices, the rule’s insulting assumption about women’s decision-making and its interference with physicians’ professional judgment sounded benign. But forcing overburdened physicians to provide biased “counseling” drives up abortion costs, turns physicians into propagandists for the state while making them less willing to perform abortions, and, overall, contributes to the isolation and unfair stigmatization of women seeking vital reproductive health care.

By upholding Pennsylvania’s restrictions, the court sent a clear message to anti-abortion forces: if they got abortion restrictions passed at the state level, there was a good chance those restrictions would survive constitutional challenge.

*III. Chipping Away at Abortion Rights, State by State*

Opponents of abortion took up the Casey court’s invitation. They increased their activity at the state level, accelerating their push for restrictions that would erode abortion rights to varying degrees, but that lawyers could argue did not impose an “undue burden.” The accumulated impact of all these efforts, which show no sign of letting up, is now being felt in many states. For example, in addition to the three decades old federal prohibition that prevents federal Medicaid
funding of nearly all abortions for low-income women, 11 states now restrict abortion coverage in insurance plans for public employees. Rules in 4 states limit abortion coverage by private insurance plans to cases in which carrying the pregnancy to term would endanger the woman’s life, although those who can afford it are free to purchase additional coverage for non-emergency abortions. At this point, 43 states have enacted some form of parental involvement law, requiring either parental consent or notice before a minor obtains an abortion. Fully nine of these laws including the New Hampshire parental consent statute that is the subject of a major test case now pending before the Supreme Court have been enjoined by courts, and presently are not being enforced, owing either to their purposeful omission of an adequate exception to protect a minor’s health or because of state constitutional issues.

Some 31 states mandate that women receive “counseling” before an abortion, and 18 of them specify how the slanted, and oft-times inaccurate or misleading information designed to dissuade women from having an abortion is to be delivered. In 23 of the states requiring abortion “counseling”, women are required to wait a specified period of time after the session – most often 24 hours – before getting the procedure. Greatly compounding the hardship these rules create for women, 6 states deter women from exercising their right of choice by requiring that the “counseling” be provided in person instead of by phone or over the Internet, thereby insuring that women must make two clinic visits before having the procedure.

Meanwhile, more than a dozen states are currently enforcing regulatory schemes – so-called TRAP laws – singling out abortion doctors and clinics for overly-stringent regulation. In a scary new initiative, anti-abortion strategists have begun reviving an abusive tactic from the past – deploying health inspectors to abortion clinics to review and copy unredacted medical files containing highly personal details of patients’ histories without any apparent valid regulatory justification.

The early evidence suggests that these sort of barriers have done just what their drafters intended – impeded women from getting abortions. For example, in a 2001 challenge to an Indiana law requiring medical personnel to deliver state-mandated information on abortion “in the presence” of pregnant women at least 18 hours before an abortion, the federal trial judge found the law effectively blocked approximately 10 to 13 percent of Indiana women who wanted abortions from obtaining them. A 1997 article in the Journal of the American Medical Association cited by the judge reported on the impact of a Mississippi law that required pregnant women make at least two clinic visits before obtaining an abortion. It found that the total rate of abortion for residents of Mississippi, the nation’s poorest state, decreased by approximately 16 percent in the first year after the law took effect. Because of the delays it created, the proportion of Mississippi abortions that occurred second trimester increased by about 40 percent. A 2-to-1 ruling by a federal appeals panel subsequently reversed the trial court’s rejection of the in-person counseling requirement, but without persuasively countering the factual reality of its “undue burden.”

*IV. The Scary Mississippi Model*

For people residing in blue states, with pro-choice legislative majorities, the threat posed by anti-abortion forces may seem remote. But in states where abortion rights enjoy less political support, women’s right to control their reproductive choices are only what the courts say they are. Even with Roe still the law of the land, the situations in these states is not good. Consider the bleak terrain for women confronting an unwanted pregnancy today in Mississippi, the
subject of “The Last Abortion Clinic,” a valuable documentary by Raney Aronson-Rath that aired recently on P.B.S.

By piling restriction upon restriction, Mississippi has all but outlawed abortion in the state. Today, Mississippi currently has just one functioning abortion clinic, down from six just a decade ago. Even that clinic’s survival is now in jeopardy.

Making matters worse, many of Mississippi’s anti-abortion extremists also oppose birth control. Their activism is inflicting a cruel double-whammy on impoverished women who are denied access both to abortion services and to the contraceptives they need to avoid become pregnant in the first place – a situation hardly unique to Mississippi, unfortunately.

Meanwhile, other states are seeking to follow Mississippi’s legislative lead. And bad as things are in Mississippi, some parts of the country have gone even further to promote a “culture of life” that pays no heed to the negative impact for women’s health and lives when reproductive choice is severely encumbered or denied. According to a 2004 ranking of the states by a leading anti-abortion legal advocacy group, Americans United for Life, three states are ahead of Mississippi when it comes to implementing abortion restrictions and a range of other anti-abortion measures.

*V. The Future of the Constitutional Right*

There has been a lot of discussion already about whether Judge Alito would vote to overturn Roe v. Wade – a goal he explicitly embraced in a memo he wrote 20 years ago and there will be no doubt be more when his confirmation hearings begin in January. His position on Roe is important. But replacing Justice O’Connor with an anti-Roe justice should still leave at least five votes in support of letting Roe stand. The more urgent concern raised by Judge Alito’s nomination is that he could join with other conservatives on the court to continue to poke holes in the right to abortion, further weakening Roe without formally discarding it.

Opponents of abortion rights have become adept at passing laws that are progressively narrowing the right to abortion in America. On Nov. 23, the Indiana Supreme Court upheld in its entirety the state’s waiting-period law that will, like others around the country, make it incrementally more difficult for many women to exercise their reproductive rights.

The effort to eliminate abortion rights by regulation and restriction has already progressed too far, and there are cases heading toward the court’s docket that will give Justice O’Connor’s replacement plenty of opportunity to make things substantially worse. What the court needs is
a Justice who will prevent abortion rights from eroding any further. Judge Alito’s record contains strong hints he is not that person – including his vote as a federal appellate judge that a provision requiring an adult woman to notify her husband before obtaining an abortion posed no problem under the court’s “undue burden” standard.

When senators question Judge Alito, they should try to determine whether he would vote to uphold Roe v. Wade, but that should only be the beginning of their inquiry about his abortion views. Even if he votes to keep Roe, he will have plenty of opportunity to erode women’s ability to control their reproductive destiny, one decision at a time.

It’s regrettable that the country is facing yet another confirmation proceeding dominated by the issue of abortion. The time and energy both sides spend brawling over abortion rights would be much better spent working on an effective common agenda to reduce unwanted pregnancies. But the primary fault here lies not with abortion rights supporters, but with the vocal and tenacious minority on the other side who still refuse to bow to the legitimacy of Roe’s wise compromise, and who believe their personal moral opposition to abortion gives them a mandate to try to shut down abortion access locally and pack the Supreme Court with anti-abortion justices in order to deny that option to others.

Attempting to turn back the clock to the days of dangerous back alley abortions, and deny women the reproductive freedom essential to their full participation in the nation’s civic life is a moral issue, too. Not to mention an undue burden.

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44 comments for “Alito, Abortion, and the Future of Roe

  1. Viv
    November 30, 2005 at 4:06 pm

    Excellent article, Jill. Unfortunately I think some of your cut-n-pastes got a bit jumbled, and a couple of the tags seem screwy, too.

  2. November 30, 2005 at 5:23 pm

    Ah, that’s what I get for trying to copy and paste from an email (I’m too cheap to pay for TimesSelect too). It should be fixed now.

  3. Jon C.
    November 30, 2005 at 6:01 pm

    It’s not asking so much that New Hampshire stick to that standard, and that the Bush administration and conservative state governments not use the physical health of minor women to gain political capitol or make a point about their anti-choice beliefs.

    New Hampshire is actually quite a pro-choice state, but like vast majorities of the rest of the American public, the people there still support parental notification. It’s not an issue of gaining political capital, any more than any of the other dozens of restrictions on unemancipated minors are politically motivated.

    In other news, let there be no doubt about how Supreme Court nominee Samuel Alito feels about Roe: He wants it overturned.

    It’s not quite as cut-and-dried as that. A;ito actually argued that the Reagan administration should not come out in favor of an outright Roe reversal.

  4. EricP
    November 30, 2005 at 6:04 pm

    Thanks for the article. It covers the issues pretty well. I would be careful posting this kind of thing though. There are copyright issues and you could get sued. I haven’t heard of the Times issuing any take down notices yet but it could happen and legal papers could follow. Especially if the Select service continues to tank.

  5. EricP
    November 30, 2005 at 6:18 pm

    New Hampshire is actually quite a pro-choice state, but like vast majorities of the rest of the American public, the people there still support parental notification. It’s not an issue of gaining political capital, any more than any of the other dozens of restrictions on unemancipated minors are politically motivated.

    I thought that they were a pretty liberal state. It struct me as odd when they were the source of this legislation. Why would they propose a law with no exception for the health of the minor? It seems like a no-brainer and likely to get overturned unless the SC ingnores precedent. Why bother?

  6. EricP
    November 30, 2005 at 6:29 pm

    I live in Quebec where parental notification would never pass in a million years. Here once you are 14 you are considered an adult of all medical procedures. It is illegal for a doctor to discuss your medical life with your parents without your permission. On top of that everything is free (as long as you are willing to wait a bit – we have a real problem with waiting lists). I can’t imagine the idea of forcing parental notification. If you have raised your daughters right, they will talk to you about it – at least their mothers. When I was a teenager I knew several girls who had abortions. Not one of them didn’t tell at least their mothers about it. Even if it was after the fact. It seems to me that parental notification laws are just an attempt to legislate something that is only an issue in cases where parents have already failed in the girl’s upbringing.

  7. November 30, 2005 at 6:55 pm

    New Hampshire is actually quite a pro-choice state, but like vast majorities of the rest of the American public, the people there still support parental notification. It’s not an issue of gaining political capital, any more than any of the other dozens of restrictions on unemancipated minors are politically motivated.

    But the issue here isn’t parental notification. It’s the lack of a health exception.

  8. November 30, 2005 at 6:58 pm

    Good commentary over on Althouse. Bottom line, there are few or no cases where a health exception would make sense, and in the case where they are, existing law allows ER doctors to do what they feel necessary to save the life of a patient.

  9. November 30, 2005 at 7:15 pm

    How many ER doctors do you think know how to perform abortions?

  10. EricP
    November 30, 2005 at 7:39 pm

    How many ER doctors do you think know how to perform abortions?

    Don’t most doctors learn it in med-school? I seem to remember that some states have passed laws to allow moral-objectors not to learn it without losing credits which would imply that it is part of the standard curriculum.

  11. EricP
    November 30, 2005 at 7:41 pm

    Good commentary over on Althouse.

    I’m avoiding Althouse for now until she gives it a break with PM/OSM posts. She’s gone crazy with that stuff. I happen to agree with her but she’s beating a dead horse.

  12. November 30, 2005 at 7:57 pm

    Don’t most doctors learn it in med-school?

    Nope. Only 5% of all U.S. abortions are done in hospitals, where residents are trained. Only 15% of chief residents in family medicine residency programs have clinical experience providing first-trimester abortions. 87% of U.S. counties, and 97% of rural counties, have no abortion provider at all. As of 1995, only 12% of OB-GYN programs provided routine abortion training.

    Most residency programs offer abortion training to those who want it. But it’s only mandatory in very few places.

  13. November 30, 2005 at 8:08 pm

    How many ER doctors do you think know how to perform abortions?

    Jill, how many medical conditions require an abortion as the life-saving treatment on an emergency basis?

    The answer I’m getting from the medical community is “none”. If the condition is immediately life-threatening, aborting the fetus isn’t the appropriate treatment; if abortion is the appropriate treatment, it may be urgent (“do this as soon as you can”) but it isn’t an emergency (“do this now or die”).

  14. November 30, 2005 at 8:17 pm

    Robert, see the post above.

  15. Dianne
    November 30, 2005 at 8:28 pm

    Don’t most doctors learn it in med-school?

    Nope. Abortion is covered in an ob/gyn residency…or at least in some ob/gyn residencies.

  16. Dianne
    November 30, 2005 at 8:35 pm

    how many medical conditions require an abortion as the life-saving treatment on an emergency basis?

    I’m not sure who in the medical community you’ve been talking to, but I can easily think of conditions that require abortion or delivery of the fetus, if that is possible, in order to prevent the mother’s death…leaving out conditions in which the embryo or fetus is already dead, here are a few: Ectopic pregnancy, pulmonary hypertension, HELLP syndrome and eclampsia (see above), fetal demise of one twin with necrosis, incomplete spontaneous abortion with hemorrhage, disseminated intravascular coagulation, uterine infection, uterine cancer, cervical or vaginal cancer…I’m sure I’m leaving some out, but that’s all I can think of off the top of my head.

  17. November 30, 2005 at 8:41 pm

    Inlcuding a health exception means the woman doesn’t have to be in the ER first. If she develops complications that wouldn’t ordinarily get her into an ER, but are detected at a regular dr’s appt, this will allow her to seek an abortion in timely manner without necessary panic. Forcing any woman to first visit an ER, which puts her life at further risk (bc we all know how long the wait in an ER can be), then to have her wait to be literally dying?! I find any restriction on abortion, even for minors, disturbing but I find it a compromise when the health of the women carrying it is included.

    When I was pregnant, every single cell in my body made that kid. If ever my life were in danger, I made it abundantly clear that they were to do what they could to save Peanut (with the exception of using me as an incubator). However, in an ER, a dr’s first priority is the person living, meaning the woman/mother.

    I find it abhorrent that some people think a health exception is not needed. Why wait ’til things get horrendously bleak to make a decision?

    I wrote about Casey a few days ago and Ayotte yesterday (having problems with the linkage though) and it bug me more that New Hampshires Parental Consent Law not only wants the 48hr waiting period, but the dr’s themselves have to notify the parents. Now how is that constitutionaly allowable?

    And like Jill said, no, dr’s don’t learn how to perform abortions in med school which is another reason why this case is so important.

    I wish we would stop having this same discussion/argument and just let all us women alone to decide for ourselves already.

  18. November 30, 2005 at 8:43 pm

    Oh, forgot. Great post Jill and thanks for all the links and for taking a chance and copying/pasting that article. I so wish they wouldn’t have started making people pay for it….

  19. November 30, 2005 at 9:01 pm

    Robert, see the post above.

    I saw it. Glad you were able to get help in a timely fashion, even if it was arduous. Medicaid sucks, but I’m sure grateful for them. And? The treatment for HELLP is childbirth, not abortion.

    (As noted on Althouse, that may end up resulting in a dead baby for some mothers, but they induce labor, they don’t do a D&C – which wouldn’t be covered under this law.)

  20. November 30, 2005 at 9:05 pm

    Dianne, you left out the part about “on an emergency basis”.

  21. November 30, 2005 at 9:21 pm

    Robert, if baby is dead, why go through labor?

  22. November 30, 2005 at 9:28 pm

    Having more children in the future will be a major risk, should I decide to do so, and a choice that must be planned very carefully in advance — hence my selfish obsession with reproductive health rights and accessibility. I don’t want to go dying on anybody, especially the child I have.

    I know this is from the other post, but I think it should be noted again.

  23. EricP
    November 30, 2005 at 9:35 pm

    Nope. Only 5% of all U.S. abortions are done in hospitals, where residents are trained. Only 15% of chief residents in family medicine residency programs have clinical experience providing first-trimester abortions. 87% of U.S. counties, and 97% of rural counties, have no abortion provider at all. As of 1995, only 12% of OB-GYN programs provided routine abortion training.

    Wow that is pretty screwed. I’ve often wondered why the US has “abortion clinics”. Those numbers explain it. Different culture I guess.

  24. Dianne
    November 30, 2005 at 9:36 pm

    you left out the part about “on an emergency basis”.

    So I did. However, with the exception of the cancers, none of the conditions I mentioned are things that can wait 48 hours while the parents think it over, muchless 7 days while the judge decides what to do. Ectopic pregnancies need to be ended as soon as they’re discovered, preferably before they burst and cause peritonitis. Infection and hemorrhage can kill within minutes. DIC due to pregnancy, eclampsia, and HELLP syndrome are only going to get worse until the pregnancy ends, one way or another: abortion, delivery, or death. If the fetus is far enough along, it is reasonable to induce labor. If it isn’t (for example, in the first trimester) then labor is a pointless risk: an abortion is safer, quicker, and less stressful on the patient. Alternately, you could futz around with parental notification until the patient and the fetus die, which seems to be the prefered “pro-life” option, but not one I’m willing to endorse.

  25. Dianne
    November 30, 2005 at 9:48 pm

    Eric: In some places, like the midwestern teaching hospital where I worked when I was a resident, most abortions were done off site because the hospital admin were afraid that if abortions were done at the hospital it would become a target for anti-abortion terrorists with bombs. So they insisted that there be a separate abortion clinic off campus, so that if it were bombed, the bomb would not kill any “innocent bystanders” or damage the expensive hospital. In defense of this attitude, the hospital in question is the only tertiary care center in the state so if it got bombed, it would be a major public health disaster. So maybe that was the lesser of the two evils.

  26. November 30, 2005 at 10:20 pm

    Robert, if baby is dead, why go through labor?

    I don’t know, but that’s what they do. I presume there’s a reason for it. (Doesn’t labor expel a lot of other stuff from the uterus that really needs to come out of there?)

    Dianne: I’m not a doctor; I’m just going on what doctors are telling me. The OBGYN over at Althouse is saying “hooey” to your line of argument. Take it up with her, I guess.

  27. November 30, 2005 at 10:26 pm


    Actually, that’s not what they do. Read this article — it isn’t exactly related to the NH issue, but it does detail how it’s safer to have a late-term abortion of a dead fetus than it is to go through labor and give birth. If women choose to go through labor, that’s fine. But if a woman is faced with the choice of going through labor, at a higher risk of physical detriment to her body, or having an abortion, she deserves that choice.

  28. November 30, 2005 at 10:38 pm

    Robert, if baby is dead, why go through labor?

    Because the Bible said to.

    /sarcasm ;)

  29. Kyra
    November 30, 2005 at 10:42 pm

    The treatment for HELLP is childbirth, not abortion.

    OK, sure. Childbirth, whether it’s at seven months or twelve weeks.

    Fine by me.

  30. November 30, 2005 at 11:02 pm

    Robert, I thought everybody hated Althouse this week. Make up your mind.

  31. November 30, 2005 at 11:12 pm

    I love Ann Althouse.

    (Cue to Robert: This is where you decide you now hate her, and list at least 5 reasons why I am wrong. Go.)

  32. November 30, 2005 at 11:15 pm

    Ooh! Let me!


    1) Robert hearts JeffG.

    Oh, scratch that, that’s not a real reason.

  33. November 30, 2005 at 11:47 pm

    You know, now that I think about it, maybe that is the reason.

  34. November 30, 2005 at 11:52 pm

    I wouldn’t say I LOVE Althouse – inappropriate sentimentalism being a way for nihilistic black-hearted leftists to mask the gaping emotional void that has consumed their human soul, and I’m not one of those guys – but I respect her intellect. Plus, she referred to one of my comments as “sensible”, which, modest flattery will get you a long way.

    She has an issue with OSM/PJM; other people have an issue with her issue; I don’t have a dog in the fight. Other than to note that it’s funny how quickly things get personalized in the blogosphere. So she hates OSM; get over it already if you don’t want to read about it. We have these things called “links” and “favorites” and “typing in a new URL” that folks can use to find content that they like. But for some reason, some folks prefer to stay where the content is not what they like and complain loudly about it.

    I don’t so much HEART JeffG, as use the same heroin dealer and $5 prostitutes that he does. It’s a bond, but it’s not always about love. Fucker goes bareback in one of my bitches again, or tells Vinnie “Rob will pay for this one”, I’ll cut him.

  35. November 30, 2005 at 11:54 pm

    Robert, you know what they say about performative hypermasculinity.

  36. December 1, 2005 at 12:08 am

    No I don’t, and because that threatens my control of the situation, I’ll kick your ass for bringing it up!

    (I actually typed “lick your ass” before I saw the typo. Oh, Freud, you naughty boy.)

  37. mythago
    December 1, 2005 at 1:23 am

    how many medical conditions require an abortion as the life-saving treatment on an emergency basis?

    D&C and D&E have emergency uses other than abortion.

    Doesn’t labor expel a lot of other stuff from the uterus that really needs to come out of there?

    It doesn’t really matter how the “other stuff” comes out of the uterus, as long as it comes out. And speaking from experience, labor is not as effective as you might imagine.

  38. EricP
    December 1, 2005 at 7:29 am

    Jill: I love Ann Althouse.

    Wow Jill loves Althouse and Althouse loves Alito. What a weird love triangle!

  39. T. Paine
    December 1, 2005 at 11:49 am

    Bottom line, there are few or no cases where a health exception would make sense, and in the case where they are, existing law allows ER doctors to do what they feel necessary to save the life of a patient.

    The real bottom line is that the government doesn’t have any business regulating abortion more than it regulates any other medical procedure. I’m not willing to give the legislature the authority to force me to have a vasectomy; I’m stil unclear why some people are willing to allow it to force women to carry a pregnancy to term.
    Consults his Patriarchy for Clueless Men…
    Oh yeah, it’s not about health or babies; it’s about reminding women about their (lack of) power relative to men.

  40. Abad man
    December 1, 2005 at 2:53 pm

    plenty of medical procedures are regulated. Immunizations, whether a medical procedure can or cannot be performed, organ transplants, What can and cannot be used in a procedure. Ever hear of he FDA?
    This is not a man woman issue, it is a parent child issue. Last I heard some parents were women.

    DIC- life threatening
    HELLP/ severe pre-eclampsia -life thereatening
    hemorrage- life threatening
    severe infection- life threatening
    necrotic twin- see severe infection
    incoplete spontaneous abortion with hemmorrhage- life thereatening and not really an abortion

    pulmonary hypertension- gradual onset, diagnosis takes time, initial treatment would not be an abortion, if severe enough to require intervention within 48 hours- life threatening

    Ectopic pregancy- not an abortion but a medical procedure ruptured medical emergency, otherwise treat medically to kill fetus
    cancer- takes time to diagnose not an emergency does not need treatment within 48 hours.

    well intentioned people can make this law work just fine.

    I’m not sure whose a** the 1 in a 1000 number got pulled out of, but there is a definate rate of abortion complications as well, life threatening, and reproductive ability thereatening. Uterine perforation, infecton, increaesd risk of future misscarriage, bleeding requiring transfusion, death. The highest number I found for complications was 17%, lets cut that by 2/3 and call it 5 percent just for fun. That would be at least 50 people with an adverse outcome of some type in those same 1000 women. Yes, I puled this number out of my A** I doubt it will need to be adjusted down though. How important this number is depends on how you want to look at this issue. Perhaps it should have been left to the good Pro- choice people of NH instead of the courts.
    Abortion is not without risks, if the abortion produces complications the parents are responsible for the aftermath. They are due some deference in the decision process.

  41. T. Paine
    December 1, 2005 at 3:52 pm

    Abad Man-

    Look, there was a standard under which the law would have been acceptable: Include a health exception. The legislature chose not to do so, as part of the ongoing game of trying to prevent women (of any age) from controlling their bodies. I don’t particularly like parental notification statutes, but I don’t see them disappearing anytime soon. And as should be obvious from the ongoing drama surrounding OTC day-after birth control, we’re not dealing with “well intentioned people.”

    More broadly, you’re conflating regulation of medical procedures in general for safety reasons (which I don’t hear anyone arguing against), with regulation of a specific health procedure (abortion) because of some benighted drive to shame and control women. How else can waiting periods, “information” about cervical cancer or fetal pain, coerced ultrasounds, and the like be understood as anything other than disrespect for and attempts to control women?

    And I would hope that all of us can recognize that when one gives one’s informed consent to any medical procedure, including abortion, one is aware of the risks. I’m not sure (because your post isn’t clear) if this is an argument against abortion in general or not, but every medical procedure carries risks. No one is trying to prevent, say, heart surgery or rhinoplasty because they have some chance of complications. On the other hand, if you’re arguing that these health risks mean that parents ought to know, well congratulations! Parental notification laws seem to be here to stay. They just have to contain a health exception so that young women can get the medical care they need when they need it (and in consideration for health beyond that physically tied to pregnancy).

  42. Abad man
    December 2, 2005 at 2:18 am

    T. Paine

    First, your initial statement was “The real bottom line is that the government doesn’t have any business regulating abortion more than it regulates any other medical procedure.” I was pointing out that the governmant does it all the time. Now you change your argument to exclude regulations for safety, which believe me drug companies rail against. Specific health procedures are regulated with reguard to the ability of minors to consent to them every day. Consent is required for medical procedures on minors. Abortion already enjoys wide latitude in this area, less rather than more restrictive. While boys are not forced to undergo vasectomies neither can they consent to their own.

    Notification does not remove the minor’ ability to consent to the abortion nor prevent her from obtaining one.
    I have tried to point out that health concerns are addressed under the current law and that arguments to the contrary are ill concieved, hard to defend, and frequently dishonest. Hyping risks and discounting physician’s willingness and ability to respond to those risks.
    I point out the risks of abortion to remind you that abortion is not a benign procedure. It carries the risk of serious long term complicatins, and since the health issuses revolve around the safety of the minor they should be remembered. Any other procedure with these potential risks would require parental consent. Consrtucting a notification law with as little wiggle room as possible is not that radical nor repressive. It reflects knowledge that good judgement requires experience that minors usually lack.

  43. Dianne
    December 2, 2005 at 11:44 am

    The OBGYN over at Althouse is saying “hooey” to your line of argument. Take it up with her, I guess.

    Well, I’m not an ob, but I’m pretty sure that the standard of care for HELLP is to deliver or abort as soon as possible. If there’s some reason to delay, ie to try to prep a marginal fetus, say a 26 weeker, for birth so it has a better chance of survival, that’s one thing, but in the unlikely event that it occurs at, say, 14 weeks, who are we trying to kid? No one’s going to be able to hang on for 10 weeks or more with HELLP. If I were consulted as a hematologist on a patient with HELLP I’d suggest treating the underlying cause (ie, doing a delivery or abortion) asap, maybe giving some cryo or plasma, avoid platelets unless there’s serious bleeding, mak sure that the blood bank is ready with lots and lots of everything, maybe give steroids if you really have to wait. I’d also like to see what the patient’s ADAMTS-13 levels and von Willibrand’s multimers looked like, preferably before any platelets were given. And maybe see if she had any CD39 abnormalities.

    Sorry, I’ve stopped discussing the issue and moved on to fantasizing about how to cure HELLP syndrome. To bring the comment back to something relevant: Suppose you or I or someone found a way to cure HELLP and prevent it from recurring. Suppose this cure were given to a woman who was just about to abort a wanted pregnancy because of HELLP. Would she then say “Drat you for taking away my justification for having an abortion”? I think it’s far more likely that she’d be happy to be able to continue the pregnancy safely. My point? One way to decrease the number of abortions that occur, especially late term abortions, is to find cures or preventatives for the problems that cause these abortions: chromosomal abnormalities, maternal health problems, intrauterine growth abnormalities, etc. Doing something about these problems would be much more likely to reduce the rate of abortion than lecturing women on how evil they are for wanting to abort a baby that’s not going to survive after birth or where the birth is going to kill her.

  44. Dianne
    December 2, 2005 at 1:23 pm

    abad: The risk of dying from direct complications of pregnancy is about 1 in 10,000. The risk of dying from complications of legal abortion is about 1 in 100,000. Numbers from the CDC’s web page.

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