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Supreme Court battle looming...
Abortion rights in the balance

July 22, 2005 | Pages 8 and 9

SINCE THE moment that Supreme Court Justice Sandra Day O'Connor announced her retirement July 1, pro-choice activists, feminists and Democratic Party officials have sounded the alarm.

Their concern is understandable. Long considered the Court's "swing vote" on a number of issues, O'Connor is credited with having kept Roe v. Wade--the 1973 case legalizing abortion--the law of the land.

Now Bush has nominated a hard-line conservative, John Roberts, to take O'Connor's place, and commentators are speculating that Roe does indeed hang in the balance. What will keep abortion safe and legal in the U.S.--and turn the tide against the anti-abortion attack? NICOLE COLSON looks at the right to choose--and the fight to save it--in the wake of the Roberts nomination resignation.

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"THE BATTLE for the Supreme Court has begun," reads the Web site of NARAL Pro-Choice America. "Justice O'Connor resigns...Women's lives on the line," says the home page of the National Organization for Women.


For information about the right-wing assault on choice and the fight to protect abortion rights:

Keep Your Laws Off My Body

Save Roe

I'm Not Sorry: Celebrating the Right to Choose

For facts about abortion and contraception in the U.S.:

Alan Guttmacher Institute

National Abortion Federation

For information about the fight to protect the right to birth control and emergency contraception:

Fill My Pills Now!

Mainstream feminist groups are justifiably alarmed at what Sandra Day O'Connor's resignation from the Supreme Court will mean for keeping abortion legal. Since his first day in office, George W. Bush and his right-wing supporters have made no secret of their desire to dismantle abortion rights.

With O'Connor stepping down, the drive was on among right-wing organizations to make sure that whoever Bush nominated would uphold hardcore conservative values. White House aides met with leaders of Christian Right groups to get their input on a prospective nominee. Attorney General Alberto Gonzales, an early frontrunner for O'Connor's spot, was reportedly moved lower on the list of potential nominees--because right wingers think the architect of the White House torture policy is "too liberal" on abortion rights.

After hints that Bush would nominate a woman, the supposed "moderate conservative" Judge Edith Brown Clement, Bush instead tapped federal appellate Judge John Roberts Jr., in a move certainly calculated to reward his right-wing base.

Roberts is a hard-line conservative who, as deputy solicitor general under Bush Sr., argued to the Supreme Court that "Roe was wrongly decided and should be overruled," and that there is no "fundamental right to an abortion." Roberts not only helped craft the Bush Sr. administration's "gag rule" policy that barred federally funded clinics from discussing the possibility of abortion with patients, but he even filed a "friend of the court" brief supporting the right of the anti-abortion fanatics of Operation Rescue to block access to clinics.

While the right clearly got a conservative nominee who could eventually help overturn Roe v. Wade, the job was made easier by Democrats and liberal organizations--who seemed incapable of raising the prospect of a nominee who would support progressive ideas.

Instead, they held up Sandra Day O'Connor up as their "model moderate." "Who would have thought it?" the New York Times commented. "As she heads into retirement, Sandra Day O'Connor has become the toast of the Democrats."

Sen. Barbara Boxer (D-Calif.) praised O'Connor as "a leader on the court for moderation and consensus building." And Feminist Majority Foundation President Eleanor Smeal warned Senate Majority Leader Bill Frist (R-Tenn.), "He has to understand we need a moderate, centrist Supreme Court."

This shows just how far the political goalposts have shifted to the right in Washington. Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation, smirked to the Times that he found the Democrats' newfound admiration for O'Connor "[r]ather humorous, isn't it? 'Right-wing zealot' is what I always heard."

Indeed, while O'Connor voted to uphold legal abortion, she was also often the driving force behind decisions that chipped away at access to abortion in practice.

For O'Connor, restrictions on abortion rights were acceptable as long as they didn't place an "undue burden" on a woman. Bans on public funding of abortion facilities, fetal viability tests, mandatory waiting periods, parental consent laws for teens--according to O'Connor, none of these constitute an "undue burden."

O'Connor's "moderation and consensus-building" helped open the door to the bleak picture of abortion rights in the U.S. today--where an estimated 87 percent of counties have no abortion provider. 22 states have mandatory waiting periods, and 21 states require parental consent for teens.

Rather than stand up for the right to abortion without apologies, however, the Democrats have moved to the right as well--repeating Bill Clinton's mantra that abortions should be "safe, legal and rare" (with the emphasis always on rare).

Recently, leading figures in the party--including Sens. Hillary Rodham Clinton (D-N.Y.) and John Kerry (D-Mass.), as well as Democratic National Committee (DNC) Chair Howard Dean--have all signaled their willingness to move to the right on the issue of choice, saying that the Democrats need to welcome anti-choice people into their ranks and focus on reducing the number of abortions, rather than making sure every woman who needs access can get it.

Dean even advocated a "state's rights" approach to the issue of abortion--telling Meet the Press host Tim Russert in May that since "people do believe different things about this in different states," restrictions on abortion should be drafted by individual state medical boards. Under Dean's approach, women who live in conservative southern states would most likely find themselves out of luck when it came to obtaining an abortion.

With their attempt to prove their "moral values" in the wake of last year's disastrous election loss, the Democrats sounded like Republican strategists when they begged Bush for a "fair-minded, common-sense conservative in the mold of Justice O'Connor."

According to DNC polling director Cornell Belcher, "The course seems clear for a president seeking to reverse the political slide of the last six months where progress is bogged down in Iraq and the top-tier items of his domestic agenda are stalled. In fact, Reagan was in much the same position when he chose an obscure Arizona state judge named Sandra Day O'Connor in 1981."

According to Sen. Mary Landrieu (D-La.), "This country is really divided right now on the war. The president, as the leader, should, I think, have an overwhelming feeling to appoint someone that the Senate can agree on to keep the country together, fighting these battles."

Someone should tell Landrieu and the Democrats that, as the "opposition" party, they should oppose Bush's right-wing policies, rather than advise him how to become more popular.

Instead, Senate Minority Leader Harry Reid (D-Nev.) told reporters this month that he doesn't "anticipate a filibuster" to block any Bush nominee. Even liberal Sen. Ted Kennedy (D-Mass.) has promised not to apply an abortion "litmus test" to any potential nominee. And the early speculation following Roberts' nomination found commentators predicting that the Democrats might gripe about Bush's right-wing choice, but would back down from any kind of confrontation.

Last year, more than a million people turned out in Washington, D.C. to call for abortion rights at the "March for Women's Lives." On that day, Democrat after Democrat told us that we had to vote for John Kerry to save the right to choose. That strategy has only hurt us--hampering what could have been the beginnings of a new grassroots fight to protect and expand abortion rights.

We can't rely on a party that's already retreated on choice. And we certainly shouldn't hope that Roberts turns out to be more "moderate" than he appears. It's time to rebuild a real fight for abortion rights where it counts--in the streets.

Can the Supreme Court be moved?

IS THE Supreme Court a neutral institution that exists above the fray of public opinion?

According to conventional wisdom, once Sandra Day O'Connor's seat is filled, the political character of the Court is set in stone, and the future of abortion rights will hinge on the narrow question of how the nine justices cast their vote on future cases.

There's no doubt that some nominees would be more progressive than others—and that Roberts is on the conservative end of the political spectrum when it comes to issues like abortion rights and gay marriage. But to see the fight for abortion rights as primarily a question of which nine people sit on the Supreme Court is a disaster for our movement--and flies in the face of history.

In 1973, abortion rights were won not because moderate members of the Court suddenly "decided" that women should be able to control their own bodies. At the time, Richard Nixon sat in the White House, and the Supreme Court was dominated by six Republican-appointed justices.

The key to winning the Roe v. Wade decision that legalized abortion was a growing movement that brought thousands of people into the streets across the U.S.--and, more broadly, changing opinions about women's roles at home and in the workplace.

Hundreds of local protests for women's rights took place around the country between 1969 and 1973, raising demands not only for legal abortion, but for paid child care and equal pay for equal work. One of the largest, the Women's Strike for Equality in 1970, drew more than 50,000 across the U.S. The fight for women's liberation was connected to other left-wing struggles as well--like the fight for gay liberation, the movement to end the Vietnam War and the Black Power struggle.

Conservatives have fought against the right to choose ever since, chipping away at abortion rights with a host of restrictions. But every time that Roe has been threatened with being overturned, it has been not the political character of the nine justices, but mass protests--including two huge mobilizations in 1989 and 1992 when the court heard anti-abortion cases--that kept abortion rights alive.

In an opinion for the 1992 case, Justice David Souter, a Bush Sr. appointee, wrote, "A decision to overrule Roe's essential holdings would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy." In other words, the prospect that millions of people would reject the legitimacy of the Court's decision was a bigger factor than whether the justices were liberal or conservative.

The way to keep abortion legal is the same as always--building a grassroots movement that tells the politicians of both parties that we won't go back to the days of back-alley abortions.
Right takes aim at right to birth control

THE RIGHT isn't satisfied with restricting women's access to abortion. They want to curtail every aspect of women's reproductive freedom. Some of the most recent attacks are aimed at access to birth control--in particular, emergency contraception (also known as the "morning-after pill).

Earlier this month, Megan Kelly went to a Jewel-Osco pharmacy in St. Charles, Ill., to fill her prescription for both monthly birth control and emergency contraception. "The pharmacist told me she was not able to fill the prescription because of her beliefs, and that I would have to get my prescription filled elsewhere," Kelly told the Chicago Daily Herald.

Following a similar incident in Chicago earlier this year, Illinois Gov. Rod Blagojevich signed an order requiring pharmacies that sell contraceptives to fill prescriptions for birth control without delay. Nevertheless, the St. Charles store's manager told Kelly that he couldn't force the pharmacist to fill the prescription.

Legislation is currently pending in at least 15 states to allow pharmacists to opt out of filling prescriptions on "moral" or "religious" grounds. Incidents of pharmacists' refusing to dispense emergency contraception have been reported in at least 11 states across the country in recent months, including California, New York, Wisconsin, Illinois and Texas.

And this despite the fact that many pharmacies refuse to carry emergency contraception entirely--including the entire chain of Wal-Mart stores, which for many women in rural areas is the only available pharmacy. Wal-Mart calls this a "business decision," but for ordinary women, lack of access to emergency contraception can have devastating consequences,

"Imagine you're a teenager who has been a victim of sexual assault," Lauryn Shipp, president of Voices for Planned Parenthood at Ohio State University, told the Ohio State Lantern as state lawmakers attempted to introduce a "conscience clause" in Ohio earlier this year. "You have no car. You have a little over 72 hours to fill a prescription for emergency contraception--what if the only pharmacist around refuses to give it to you?"

In Wisconsin last month, a bill narrowly passed the state assembly that would prohibit University of Wisconsin (UW) health clinics from advertising or distributing emergency contraception. "This is interfering with our ability to provide a legitimate service to students who pay for our services and rely on us to provide their health care," Kathy Poi, executive director of University Health Services at UW-Madison, told Fox News. According to Wisconsin Attorney General Peg Lautenschlager, "There is a real danger...[that the] proposed legislation would be interpreted to include all hormonal birth-control medications, further limiting UW students' access to contraceptive options."

Emergency contraception--which the Religious Right willfully misrepresents as causing a "chemical abortion"--is only one front in this issue. According to Planned Parenthood, instances of pharmacists refusing to fill prescriptions for ordinary birth control are on the rise as well.

But in a sickening twist, leading Democrats are trying to make it even easier for the right to deny women access to birth control. Sens. John Kerry (D-Mass.) and Hillary Rodham Clinton (D-N.Y.) have both signed on as sponsors to the "Workplace Religious Freedom Act" drawn up by arch-conservative Sen. Rick Santorum (R-Pa.). One provision of Santorum's bill would allow pharmacists nationwide to "step away" from filling birth control prescriptions.

On March 17, Kerry stood shoulder to shoulder with the anti-choice, anti-gay Santorum, declaring, "Our nation was founded on freedom of religion, and it should be clear in our laws that no American should ever have to choose between keeping a job and keeping faith with their cherished religious beliefs."

What's next? Right-wing pharmacists refusing to fill birth control prescriptions unless patients provide marriage certificates?

As Megan Kelly told the Daily Herald, whether a woman is a teenager, a victim of rape or married with children, it should be no business of the pharmacist whose job it is to fill prescriptions. "It really shouldn't make a difference what my situation is--I should not be judged," Kelly said. "It should be no questions asked."

Anti-abortion terror in Florida

ABORTION MAY be legal in the U.S., but if you're a woman in West Palm Beach, Fla., you can't get one where you live. That's because earlier this month, the Presidential Women's Clinic--the last remaining clinic performing abortions in West Palm Beach County--was set on fire.

Investigators say the attack may be the work of the same anti-abortion individual or group that torched the nearby Lake Worth WomanCare Center almost exactly one year earlier. As long as Presidential's doors remain closed, women who have no medical insurance--or who need abortions or other services that private doctors won't provide--will have to go elsewhere.

"Knocking down two locations in the same area has made it either impossible or extremely difficult for women," Patricia Baird-Windle, a retired clinic operator who owned the Lake Worth WomanCare Center before it was burned down last year, told the Orlando Sentinel.

According to the Sentinel, anti-choice protesters often harassed patients at the Presidential clinic--videotaping and shouting at women seeking abortions, throwing literature through car windows, and even pushing children in strollers across the clinic's entrance. "I've seen a person start crying because she couldn't get past the protesters," Debbie Katz, a center escort, told the South Florida Sun-Sentinel.

Florida has a long history of anti-choice terrorism. According to the Palm Beach Post, "In the past 15 years, anti-abortion zealots have used violence--arson, acid, pipe bombs and shootings--in 24 attacks in Florida that have killed, injured and aimed to intimidate."

Across the U.S., harassment of clinics and abortion providers is one of the primary reasons why, according to the Alan Guttmacher Institute, there was no abortion provider in an estimated 87 percent of counties across the country, as of 2000. In 2003, one out of every four women who needed an abortion reported having to travel at least 50 miles to obtain one.

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