Failing gains

In the war of words -- and abortion access -- anti-choice forces are winning the battle

by David Valdes Greenwood

As the 27th annual March for Life flooded the nation's capital on January 24, the anniversary of Roe v. Wade, it was easy to mistake the event for a celebration instead of a protest. Given the advances made by abortion-rights opponents in recent years, march organizers had much to savor. In the war of words, anti-choice forces are winning. They have had enormous success in imprinting the misleading term "partial-birth abortion" on the public consciousness. And their long campaign to encourage the myth of easy access has succeeded widely, even as access itself grows increasingly difficult.

On January 14, the US Supreme Court agreed to hear the appeal of Carhart v. Stenberg, a Nebraska case involving a ban on so-called partial-birth abortions. This is the most substantive abortion matter to come before the Court since 1992, when it reaffirmed a woman's right to abortion. Nebraska's law banning the "partial birth" procedure has twice been struck down in appeals as unconstitutional. In an opinion issued by the US Court of Appeals for the Eighth Circuit (the most recent court to hear this case), the justices ruled that "though widely used by lawmakers and the popular press, [the term `partial-birth abortion'] has no fixed medical or legal content."

That statement goes to the heart of the problem with the term, and with legislation that contains it. "Partial-birth abortion" is usually used to mean intact dilation and extraction (known as D&E, or D&X, depending on the age of the fetus and the manner of delivery). After a physician has determined that it is necessary, labor is induced and the partially exposed fetus is terminated outside the womb (generally to avoid risks to the mother posed by a nonviable fetus remaining in utero). Such a scenario may be unpleasant or disturbing, but it is never approached lightly or without serious medical discussion. According to Tina Sincotti, project coordinator for the Abortion Access Project of Massachusetts, the "vast majority" of such cases involve "women who wanted to have a child and found out very late about some genetic problem, the brain not developing, or the brain stem developing on the outside."

This reality often gets short shrift in the public discussion. The term "partial birth" is "public relations, it's fundraising, and it's politics," says Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers (NCAP). "Abortion leaders have admitted as much, that it's a ploy." In its carefully crafted vagueness, the term may be interpreted to cover any abortion procedure that involves an element of induced labor, which applies to terminations "from the first trimester to the third," according to Sincotti, and includes the most common procedures used before fetal viability. In a 1998 ruling against legislation that included the term, an Alaska court found that "the broad sweep of the language involved could allow enforcement against most, or all, abortion procedures."

That potential has not deterred 28 states from passing such legislation since 1995 -- 25 of those states prohibiting "partial birth" procedures without any exception for the health of the mother, even if the fetus is not viable. This erodes two long-cherished tenets of Roe v. Wade and succeeding decisions: that a woman's health is paramount, and that states may not create a "substantial obstacle" to a woman's ability to terminate a nonviable fetus. If a woman's life-threatening pregnancy may safely be terminated only by a D&E, such laws would leave her to die, regardless of whether the fetus would live.

How could such legislation pass? For one thing, "partial birth" is a stunningly effective term: it evokes a primal life event usually associated with equal parts drama and celebration, and it brings to mind the image of a healthy baby emerging from the womb. Henry Hyde, in a speech before Congress, painted a picture of a child almost entirely out of the womb, then slaughtered needlessly -- what he kept calling "the four-fifths baby." What anti-choice forces have, then, is a sleek little term that implies an act of utter inhumanity. There is no similarly compact way to present the image of, say, a distraught woman learning that her fetus has its brain stem exposed and will surely die -- or, worse yet, that the pregnancy may claim her life as well. What phrase do we have for this woman, perhaps with other children and a husband who are one terrible choice away from losing mother and wife? Says Fitzsimmons, "It's just very difficult to explain the procedure in a 10-second ad." You can spin rhetoric any way you like, pressing it neatly into a sound bite, but when rhetoric becomes law, there remains no room for the messy details of life-and-death decisions.

What there is room for is the continued erosion of Roe v. Wade. As the New England Journal of Medicine warned in July 1998, "the hope seems to be that more heated rhetoric will help turn the public and physicians against abortion itself." And that strategy seems to be working. In a 1999 USA Today/Gallup poll, only 27 percent of respondents said they would keep abortion entirely legal; 71 percent favored restricting access to cases of rape, incest, or life-threatening emergency. That statistic is profound in what it excludes: fetal viability, physical risk to the mother or fetus, and poverty or other sociological factors. This apparent willingness to limit access so severely suggests that the American public may indeed have bought in to the anti-choice movement's rhetoric.

In its press materials, March for Life organizers drive home a claim that has so permeated our culture as to become accepted wisdom: that abortions are easy to get. Sneering that "everything from physical well-being to psychological and financial well-being" has been used to justify ending a pregnancy, organizers claim that abortion is now an "unfettered practice." In particular, anti-choice activists suggest that poor women routinely have abortions at taxpayer expense and that teenage girls get abortions easily, with their parents none the wiser. This myth fits neatly with two conservative tenets -- the misguidedness of social spending and the sanctity of parental authority. What it doesn't dovetail with is reality.

According to a 1998 study by the Alan Guttmacher Institute, the rise of mergers between secular and religiously affiliated hospitals has corresponded with a huge decline in the number of institutions that do abortions; only 14 percent of hospitals now provide the procedure in some form. Ninety percent of all abortions take place in clinics -- almost all of which, as Abortion Access Project studies note, are in urban areas. Ninety-five percent of rural counties have no providers at all. "For rural women, it's extremely isolating," says Rachel Thorburn, formerly the assistant director of direct services at the Everywoman Center in Amherst. "You don't even know where to get services -- no one is advertising `We perform abortions.' " Late-term-abortion providers are even rarer: according to Tina Sincotti, a woman in her seventh month who has learned that she and the fetus will both die if the pregnancy continues has a choice of exactly three doctors in the entire nation who will perform an abortion.

Furthermore, the Hyde Amendment, first passed in 1996, prohibits federal funding for abortions except in cases of life endangerment (no exceptions for other resultant injury to the mother, or for cases of rape or incest). Thirty-six states have since passed similar prohibitions on use of state funds for abortion. Melissa Kogut, executive director for the Massachusetts chapter of the National Abortion and Reproductive Rights Action League (NARAL), paints a bleak picture of the past decade, noting that "Congress has voted more than 100 times to restrict abortions, and we have lost most of those fights." It is perhaps no surprise, then, that according to studies by the Centers for Disease Control and Prevention, the number of legal abortions declined 15 percent during that period (the figures do not include the past three years, for which CDC statistics have not yet been released). Furthermore, the CDC studies have found again and again that the majority of patients (from 51 percent upward, depending on the reported year) have never had an abortion before. The idea of brazen repeat offenders continually milking state and federal coffers -- a claim repeated over and over in anti-choice materials -- is simply insupportable.

Not only is the number of accessible institutions dwindling, but the ranks of trained providers seem to be thinning too. Kogut asserts that "50 percent of ob-gyns have never performed a first-trimester abortion." NCAP's Fitzsimmons offers two explanations for the dismal statistic. First, "the anti-choice movement has been very organized in putting pressures on residency programs. All you need is an active group of zealots, and a hospital board of trustees goes nuts." Worse to contemplate is the threat of violence. "We've had doctors killed -- I've known them all -- so you have to think, `I could be a target,' " he says. "When I stand at my kitchen window at night, I'm looking at a forest, and I don't know what I'm going to see out there."

For those institutions and physicians that do remain, their ability to perform abortions has been weakened in a number of other ways, including required waiting periods (as long as three days) and laws that restrict a minor's access to abortion by requiring written consent from one or both parents. Teresa Roberts has wrestled with such provisions in several positions: as a nurse practitioner at a nonprofit clinic, as a high-school-based health-care provider, and as a Planned Parenthood staff nurse. "It takes me so long to facilitate a young woman getting an abortion," she says. "There are so many hoops." Roberts says that though the delays usually don't take so long that termination is impossible, they take long enough that "the girl's life is made increasingly more difficult, and the delay makes for more physical pain." Roberts knows of only one case where the delay made it impossible for the young woman to get an abortion -- and then the baby died at four weeks of age anyway.

Many of the 42 states with access limitations for minors defend their restriction by offering a "judicial bypass" option, which allows a minor to plead her case directly before a judge in extraordinary circumstances. But that solution can be hard to take advantage of, Roberts says: "Think of the psychological intimidation. A girl has to get out of school, go to a lawyer she's never met, and go before a judge -- it feels like being a criminal." (It is even worse in states such as Idaho, Utah, New Mexico, where there is no bypass option and the law is inflexible.)

Last summer, Marisa Franchini, now 18 and a freshman at Northeastern University, discovered just how hard it can be for a minor to get an abortion. A 17-year-old friend, a drug user with little income, discovered that she was pregnant in her second trimester; unaware of her condition until then, she had been drinking alcohol and using drugs the entire time. The young woman asked Franchini to help her find a clinic. There were no abortion providers in her upstate New York county who would perform the procedure without written parental consent, and this girl had not lived with her parents for some time. Franchini notes that the mother, the parent with whom the friend had the better relationship, seemed an unlikely candidate for decision-making: the mother herself had given birth to two children as a teenager, one of whom she'd kept and the other of whom she'd had to give away. And at the time of her daughter's dilemma, she was mentally unwell.

After a desperate search, Franchini found her friend a clinic that would do the procedure without parental consent -- three hours away in New York City. She scheduled an appointment, knowing that her friend would be assigned to whatever doctor was on call that day, and made the tense drive. "The worst part," Franchini recalls, "was trying to get in past all the religious people. I was so scared." After Franchini paid for her friend's ultrasound and visit, it turned out that the doctor on duty refused to do procedures after 18 weeks; Franchini's friend was two days past that mark. Franchini argued with clinic staff, who recommended that she bring her friend back on another day. (According to Tina Sincotti, "every state has its own limits, but physicians often have their own moral cutoff points.") Franchini remembers the ride home. "I was shaking, driving through the city. My friend was just in the back seat, crying, curled up in a ball. I mean, she was a child herself, 98 pounds and unhealthy -- she couldn't have this baby." One week, hundreds of miles, and a new set of fees later, the girl had her abortion -- same clinic, different doctor.

The Manchester Union Leader reported a more dramatic scenario even closer to home. In 1998, after a secular hospital merged with a Catholic hospital, a patient's water broke at 14 weeks. The fetus was not viable, and continuing the pregnancy would have caused an infection that might have killed the mother. Viable or not, however, the fetus was viewed as a life in need of protection; because the infection would take time to cause death, hospital administrators ruled that the mother's case did not qualify as immediately life-endangering and threatened to fire her doctor if he performed an abortion. The physician put the woman in a taxi himself and sent her 80 miles away to the nearest facility that would act to save her life.

Neither of those horror stories took place in Massachusetts, but it's not easy to get an abortion here either. According to the Abortion Access Project, only 12 hospitals in the state provide abortions for women whose physicians are not on staff; seven of those hospitals are within a 20-mile radius of Boston. "There are huge pockets of the state with no providers at all," says Sincotti. And many of the hospitals that do provide access have cut the availability of free-care funds for abortions.

The Massachusetts legislature poses another problem, NARAL's Kogut warns: "While our Senate is pro-choice, our House of Representatives is not, and we have an anti-choice Speaker. Even if we don't lose ground, we aren't going to expand." The legislature passed a bill requiring two-parent consent for minors to get abortions; on appeal, the law was upheld but with the consent reduced to a single parent, exceptions to be granted only through judicial bypass. And Bay Staters are not immune to the emotional tug of anti-choice terminology. State employees are prohibited from using their health insurance for "partial birth" procedures in almost all cases. And, according to NARAL, even our pro-choice governor and lieutenant governor have issued official statements opposing such abortions.

The farther you get from metropolitan Boston, the more conservative territory you are in, with fewer providers and greater cultural pressure on women not to have abortions. Rachel Thorburn, who worked primarily with rape victims, tells a story about an anti-choice organization with many branches in Western Massachusetts, its ads displayed on buses and public benches. When a 17-year-old rape victim, unsure whether she wanted an abortion, asked Thorburn for a referral, the girl was directed to this agency, which encouraged her to carry the fetus to term, even though she was single and her family was refusing to support her. Convinced it was the right thing to do, the rape victim decided against abortion, only to find herself estranged from her family and unable to buy food even for herself, much less for a child. When she went back to the same pro-life agency for aid, she later told Thorburn, the agency told her they applauded her decision, but weren't in the business of providing support to single mothers.

SUCH AN outcome -- a child "saved" from abortion by anti-choice pressure, only to be abandoned to fate and poverty -- could be the norm if abortion foes have their way. The March for Life press materials make the end goal clear: "Not even a little bit of abortion." The situation is even more chilling when one considers the upcoming presidential elections and the strongly anti-choice rhetoric of the Republican candidates. Ron Fitzsimmons says the presidential election is his organization's biggest concern. "I don't think the public has grasped how important this election is to abortion rights," he says. "With an anti-choice president and a Republican Congress, even if they don't outlaw all abortion, they could create major havoc."

Kogut agrees: she says it's crucial "to underscore the absolute importance of the Supreme Court" when considering the effect of the next president, who is likely to appoint several justices.

Whatever the outcome of the election, anti-choice leaders have so many rhetorical and legislative victories already in hand that they can afford to be generous. At this past Monday's march, according to March for Life volunteer Catherine McEntee, participants passed out thousands of red roses -- to every senator, every representative, and each Supreme Court justice, plus especially large bouquets for the president and vice-president. The red rose, as press releases from the march point out, is a symbol of "short life and martyrdom." It's certainly a more romantic image than that of a weeping teenager turned away at the whim of a doctor who has taken her money. Or of a woman whose possible death is not imminent enough to satisfy her Catholic-hospital administrator. As these rose petals bloom in the capital, access is withering, and the result is terrifying. Already, in too many places -- in county after county, for hundreds of miles in any direction -- abortion is no longer an option at all.

David Valdes Greenwood is a freelance writer living in Somerville.