ABORTION

ABORTION

The spontaneous or artificially induced expulsion of an embryo or fetus. As used in legal context, the term usually refers to induced abortion.

History
English COMMON LAW generally allowed abortion before the “quickening” of the fetus (i.e., the first recognizable movement of the fetus in the uterus), which occurred between the sixteenth and eighteenth weeks of pregnancy. After quickening, however, common law was less clear as to whether abortion was considered a crime. In the United States, state legislatures did not pass abortion statutes until the nineteenth century. After 1880, abortion was criminalized by statute in every state of the Union, owing in large measure to strong antiabortion positions taken by the AMERICAN MEDICAL ASSOCIATION (AMA). Despite the illegality, many thousands of women every year sought abortions. Under a heavy cloak of shame and secrecy, women often had abortions performed in unsafe conditions, and many died or suffered complications from the procedures.

The abortion laws developed in the late
nineteenth century existed largely unchanged
until the 1960s and 1970s, when a number of
different circumstances combined to bring
about a movement for their reform. WOMEN’S
RIGHTS groups, doctors, and lawyers began an
organized abortion reform movement to press
for changes, in part because many of them had
witnessed the sometimes deadly complications
resulting from illegal abortions.Women’s organizations
also began to see abortion reform as a
crucial step toward the goal of equality between
the sexes. They argued that women must be able
to control their pregnancies in order to secure
equal status. In addition, new concerns regarding
explosive population growth and its effect
on the environment increased public awareness
of the need for BIRTH CONTROL. At the same
time, other countries developed far more permissive
laws regarding abortion. In Japan and
Eastern Europe, abortion was available on
demand, and in much of Western Europe, abortion was permitted to protect the mother’s
health.

Public awareness of the abortion issue also
increased through two incidents in the early
1960s that caused a greater number of children
to be born with physical defects. In 1961, the
drug thalidomide, used to treat nausea during
pregnancy, was found to cause serious birth
defects. And a 1962–65 German measles epidemic
caused an estimated 15 thousand children
to be born with defects. Pregnant women who
were affected by these incidents could not seek
abortions because of the strict laws then in existence.
Reacting to these and other developments,
and inspired by the successes of the CIVIL
RIGHTS MOVEMENT of the 1950s and 1960s,
women’s rights organizations—including the
NATIONAL ORGANIZATION FOR WOMEN (NOW),
formed in 1966—sought to reform abortion laws through legislation and lawsuits. They
hoped to educate a largely male dominated legal
and judicial profession about this important
issue for women. Their work, supported by such
groups as the AMERICAN CIVIL LIBERTIES UNION
(ACLU), quickly began to have an effect.
Between 1967 and 1970, 12 states adopted abortion
reform legislation. However, the abortion
activist groups began to see the abortion issue as
a question of social justice and began to press for
more than reform. Under the rallying cry of
“reproductive freedom,” they began to demand
an outright repeal of existing state laws and
unobstructed access for women to abortion.
The increase in abortion-related cases before
the courts eventually resulted in the need for
clarification of the law by the Supreme Court.
After considering many abortion-related
appeals and petitions, on May 31, 1971, the
Court accepted two cases, ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and
Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L.
Ed. 2d 201 (1973), for hearing.

Roe v. Wade and Doe v. Bolton
Although the two cases before the Court
appeared by their titles to involve the fates of
two individuals, Roe and Doe, in reality both
suits were brought by many people representing
many different interests. Roe v.Wade was argued
on behalf of all women of the state of Texas—in
legal terminology, it was a CLASS ACTION suit.
Thirty-six abortion reform groups filed briefs,
or reports, with the court on Roe’s behalf. These
included women’s, medical, university, public
health, legal, WELFARE, church, population control,
and other groups. The anti-abortion side of
the case included representatives from seven different
anti-abortion groups and the attorneys
general of five states.
Roe involved a person using the pseudonym
Jane Roe—actually Norma McCorvey, who
revealed her identity in 1984. Roe, an unmarried,
pregnant woman from Texas, wanted to
have an abortion, but an existing abortion
statute prevented her from doing so. The Texas
statute, originally passed in 1857, outlawed
abortion except to save the mother’s life. Roe
filed a lawsuit in federal district court on behalf
of herself and all other pregnant women. She
sought to have the abortion statute declared
unconstitutional as an invasion of her right to
privacy as was protected by the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments in
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 513,
85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). She also
sought to have an INJUNCTION, or court order,
issued against the statute’s enforcement so that
she might go forward with the abortion. The
abortion reform movement attached two other
cases to Roe’s in an attempt to represent a wider
range of the interests involved in the issue. A
physician, James Hallford, who was being prosecuted
under the statute for two abortions he had
performed, also filed suit against the Texas law,
as did a childless couple, the Does.
The three-judge district court combined
Roe’s case with the cases of Hallford and the
Does, but later dismissed the suit brought by the
Does on the grounds that neither had violated
the law and the woman was not pregnant. The
district court agreed with Roe that the law was
unconstitutionally vague and violated her right
to privacy under the Ninth Amendment—which
allows for the existence of rights, like that of privacy,
not explicitly named in the Constitution’s
Bill of Rights—and the FOURTEENTH AMENDMENT.
It refused, however, to grant the injunction
allowing her to go ahead with the abortion.
Roe then appealed the denial of the injunction
to the U.S. Supreme Court.
Doe v. Bolton involved a 1968 Georgia statute
that allowed abortion if necessary to save the
mother’s life, in the case of pregnancy resulting
from rape or INCEST, or if the baby was likely to
be born with serious birth defects (Ga. Crim.
Code § 26-1202 a,b). However, the statute also
created procedural requirements that effectively
would have allowed few abortions. Those
requirements included hospital accreditation,
committee approval, two-doctor agreement, and
state residency. The case concerned Mary Doe,
who had sought an abortion at Grady Memorial
Hospital, in Atlanta. She claimed that she had
been advised that pregnancy would endanger
her health, but the hospital’s Abortion Rights
Committee denied her the abortion. She sought
a DECLARATORY JUDGMENT holding that the
Georgia law unconstitutionally violated her
right to privacy as well as her Fourteenth
Amendment guarantees of DUE PROCESS and
EQUAL PROTECTION. She also sought an injunction
against the law’s enforcement.
Roe and Doe were filed in March and April of
1970, and the women’s pregnancies would not
have lasted through December 1970. The Court
heard the cases in December 1971 and October
1972, and they were not resolved until January
1973, when the Court announced its decisions.
In Roe, the Court, on a 7–2 vote, found the
Texas abortion statute unconstitutional. In its
opinion, written by Justice HARRY A. BLACKMUN,
the Court held that the law violated a right
to privacy guaranteed by the Due Process Clause
of the Fourteenth Amendment. However, the
Court further held that such a right is a “qualified”
one and subject to regulation by the state.
The state has “legitimate interests in protecting
both the pregnant woman’s health and the
potentiality of human life” (i.e., the life of the
fetus). To specify when the state’s interests
emerge, the Court divided pregnancy into
twelve-week trimesters. In the first trimester, the
state cannot regulate abortion or prevent a
woman’s access to it. It can only require that
abortions be performed by a licensed physician
and under medically safe conditions. During the
second trimester, the state can regulate abortion
procedures as long as the regulations are reasonably related to the promotion of the mother’s health. In the third trimester, the state has a
dominant interest in protecting the “potentiality”
of the fetus’s life. A state may prohibit abortions
during this time except in cases where they
are essential to preserve the life or health of the
mother. The Court also cited judicial precedent
in holding that the fetus is not a “person” as
defined by the Fourteenth Amendment.
In Doe, the Court found the Georgia statute
to be unconstitutional as well, holding that it
infringed on privacy and personal liberty by
permitting abortion only in restricted cases. The
Court ruled further that the statute’s four procedural
requirements—hospital accreditation,
hospital committee approval, two-doctor agreement,
and state residency—violated the Constitution.
The state could not, for example, require
that abortions be performed only at certain hospitals,
because it had not shown that such
restrictions advanced its interest in promoting
the health of the pregnant woman. Such a
requirement interfered with a woman’s right to
have an abortion in the first trimester of pregnancy,
which the Court in Roe had declared was
outside the scope of state regulation.

After Roe v. Wade

After the Supreme Court decisions in Roe v.
Wade and Doe v. Bolton, states began to liberalize
their abortion laws. However, abortion
quickly became a divisive political issue for
Americans. Grassroots opposition to abortion—supported by such influential institutions as the Catholic Church— was strong from the start. By the early 1980s, the anti-abortion movement
had become a powerful political force.

President RONALD REAGAN, who came to office in 1981 and served through 1989, strongly opposed abortion and used his administration to try to change abortion rulings. He appointed a SURGEON GENERAL, Dr. C. EVERETT KOOP,
who opposed abortion, and Reagan made it a
top priority of his JUSTICE DEPARTMENT to
effect a reversal of Roe. Reagan even published a
book on the subject in 1984, Abortion and the
Conscience of a Nation, which contains many of
the essential positions of the anti-abortion
movement. Reagan argued that the fetus has
rights equal to those of people who are already
born. He also cited figures indicating that 15
million abortions had been performed since
1973, and he stated his belief that the fetus experienced great pain as a result of the abortion procedure. He quoted a statement by Mother Teresa, the famed nun who helped the poor of Calcutta: “The greatest misery of our time is the generalized abortion of children.” While abortion rights, or pro-choice, advocates argued that there were public health advantages of the new abortion laws, opponents of abortion, such as Reagan, referred to abortion as a “silent holocaust.”

The anti-abortion, or pro-life, movement has challenged abortion in a number of different ways. It has sponsored constitutional amendments that would effectively reverse Roe, as well as legislation that would limit and regulate access to abortion, including government financing of abortion procedures. Some antiabortion groups have practiced civil disobedience, attempting to disrupt and block abortion
clinic activities. The most extreme opponents
have resorted to violence and even murder in an
attempt to eliminate abortion.

All these methods have resulted in a great deal of litigation and added to the complexity of the abortion issue.Many of the subsequent cases have come before the Supreme Court. Observers have often expected the Court to overturn its Roe decision, particularly after the Reagan administration appointed three justices to the Court. However, while the Court has allowed increasingly strict state regulation of abortion since Roe, it has stuck to the essential finding in the case that women have a limited right to terminate their pregnancies. This entitlement is incorporated in the right of privacy guaranteed by the Fourteenth Amendment.

Constitutional Amendments Although
amending the Constitution is the most direct
way to reverse Roe v.Wade, neither Congress nor
the states have passed a constitutional amendment
related to the issue of abortion. The antiabortion
forces have found it extremely difficult
to achieve a public consensus on this divisive
issue. However, at least 19 state legislatures have
passed applications to convene a constitutional
convention to propose an amendment that
would outlaw abortions. Congressional representatives
have also worked to bring such an
amendment about. The many dozens of amendments
that have been proposed can be grouped
into two main categories: STATES’ RIGHTS, and
the right to life. The former would restore to the
states the same control over abortion that they
exercised prior to Roe. The latter would designate
the fetus as a person, entitled to all the privileges
and rights guaranteed under the Fourteenth Amendment.

One unsuccessful attempt at changing the Constitution was the Hatch amendment of 1983, sponsored by Senator Orrin G. Hatch (RUtah), which stated, “A right to abortion is not secured by this Constitution.” It did not receive the two-thirds majority necessary in Congress to be submitted to the states for ratification.

Congress has also sponsored legislation that would effectively reverse Roe. For example, the Human Life Bill (S. 158), introduced by Senator JESSE HELMS (R-N.C.) in 1981, would have established that the fetus is a person, entitled to the full rights and privileges guaranteed by the Fourteenth Amendment. The bill did not pass, and it is doubtful whether Congress has the constitutional authority to overturn a Supreme Court precedent without violating the SEPARATION OF POWERS.

Federal Financing In 1976, Representative Henry J.Hyde (R-Ill.) sponsored an amendment to the FEDERAL BUDGET appropriations bill for the DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS). His amendment denied MEDICAID funding for abortion unless the woman’s life is in danger or she is pregnant as a result of rape or incest, but only if the woman reports the incident at the time of its occurrence. Despite opposition
from pro-abortion groups, Hyde attached this amendment every year to the same appropriations bill. The Supreme Court has upheld the constitutionality of the Hyde amendment (Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671,
65 L. Ed. 2d 784 [1980]; McGowan v. Maryland,
366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393
[1961]). Evidence suggests that these federal
actions have caused fewer women to have abortions.

In the late 1980s, with its composition having been changed by three Reagan appointees (Justices SANDRA DAY O’CONNOR, ANTONIN SCALIA, and ANTHONY M. KENNEDY), the Court issued a ruling related to federal financing of abortion that many perceived as a dramatic shift against abortion rights. In WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Supreme
Court upheld a Missouri law prohibiting the use of public funds and buildings for abortion procedures and counseling, including a provision that required fetal testing for viability for abortions performed after the twentieth week of pregnancy (Mo. Rev. Stat. §§ 1.205.1, 1.205.2,
188.205, 188.210, 188.215). Scalia, appointed in
1986, argued in his concurring opinion that Roe
v. Wade should be overruled and that the Court
had missed an opportunity in not doing so in
this case.

The Webster decision resulted in a flood of new state legislation related to abortion. Many states sought to reactivate old abortion laws that had never been taken off the books subsequent to Roe. Louisiana, for example, sought to reinstate an 1855 law making all abortions illegal and imposing a ten-year sentence on doctors and women violating it. However, in January 1990, a federal district court ruled that the 1855 law could not be reinstated and that subsequent laws allowing abortions in certain circumstances took precedence (Weeks v. Connick, 733 F. Supp. 1036 [E.D. La. 1990]). By
mid-1991, Pennsylvania, Guam, Utah, and
Louisiana had all enacted laws banning abortions
except in limited circumstances. Pennsylvania
became the first to approve new abortion
restrictions when it amended its Abortion Control
Act (Pa. Cons. Stat. Ann. § 3201) to create
strict new regulations on abortion procedures
(see the discussion of Planned Parenthood of
Southeastern Pennsylvania v. Casey under
“Other Major Abortion Regulations,” later in
this entry). In other states such as South and
North Dakota, legislation that would have
sharply restricted abortion was only narrowly
defeated. However, some states, including Connecticut
and Maryland, reacted to the Webster
decision by passing legislation protecting
women’s rights to abortion.

Before the Court ruled on Pennsylvania’s
Abortion Control Act, it decided a major case
relating to federal funding and regulation of
family planning clinics. In Rust v. Sullivan, 500
U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233
(1991), the Court upheld a series of regulations
issued in 1988 by the Reagan administration’s
Justice Department affecting family planning
clinics that receive funds through title X of the
Public Health Service Act of 1970, 42 U.S.C.A.
§§ 300–300a-6. The regulations prohibited
clinic personnel from providing any information
about abortion, including counseling or
referral. The regulations also required that the
only permissible response to a request for an
abortion or referral was to state that the agency
“does not consider abortion an appropriate
method of planning and therefore does not
counsel or refer for abortion.” This regulation
became known to its detractors as the GAG
RULE.

The regulations also prohibited title Xfunded
family planning clinics from LOBBYING
for legislation that advocated or increased access
to abortion, and they required that such clinics
be “physically and financially separate” from
abortion activities. Although a family planning
agency could still conduct abortion-related
activities, it could not use federal money to fund
such activities. Chief Justice WILLIAM H. REHNQUIST,
who wrote the Court’s opinion, disagreed
with the contentions of the
plaintiffs—several family planning agencies—
that the federal regulations violated a woman’s
due process right to choose whether to terminate
her pregnancy.He pointed out that the Due
Process Clause generally confers no affirmative
right to government aid. The government has no
constitutional duty to subsidize abortion and may validly choose to fund “childbirth over abortion.” Rehnquist noted that a woman’s right to seek medical advice outside a title X-funded agency remained “unfettered.”

Justice Blackmun, author of the Roe majority opinion, dissented, arguing that the regulations, because they restricted speech as a condition for accepting public funds, violated the First Amendment’s free speech provision. The regulations, he wrote, suppressed “truthful
information regarding constitutionally protected
conduct of vital importance to the listener.”
Blackmun saw the regulations as
improper government interference in a woman’s
decision to continue or end a pregnancy, and he
claimed that they rendered the landmark Roe
ruling “technically” intact but of little substance.

On January 22, 1993, shortly after taking office, President BILL CLINTON signed a memorandum that revoked the gag rule, maintaining that it “endangers women’s lives by preventing them from receiving complete and accurate medical information.” On February 5, 1993, the secretary of HHS complied with the president’s
decision and declared that the department would return to title X regulations that were in effect before February 1988. Title X-funded clinics
would again be able to provide nondirective
counseling on all options to a patient and to
refer her for abortion services if she chose.However,
such clinics would still be prohibited from
engaging in pro-choice lobbying or litigation.

Other Major Abortion Regulations
Among the first abortion regulations to be enacted after Roe v.Wade were requirements for the informed consent of the woman seeking an abortion. Although informed consent laws vary from jurisdiction to jurisdiction, it can generally be given only after a woman receives certain
information from a doctor, medical professional,
or counselor. This information can
include the nature and risks of the abortion procedure,
the risk of carrying the pregnancy to
term, the alternatives to abortion, the probable
age of the fetus, and specific government aid
available for care of a child. Related to this issue
are other types of consent—including parental
and spousal consent—that states have sought to
require before an abortion can be performed.

In 1976, the Court reviewed a Missouri statute requiring that the following provisions be met for an abortion to be performed: that a woman in the first twelve weeks of her pregnancy give written consent; that a wife obtain her husband’s consent; and that a minor obtain her parents’ consent, unless a medical necessity exists (Mo. Ann. Stat. § 188.010 et seq.). The statute also required that physicians and clinics performing abortions keep careful records of their procedures and that criminal and civil liability be imposed upon a physician who failed to observe standards of professional care in performing abortions. Planned Parenthood, a family
planning organization, initiated a lawsuit to
declare the law unconstitutional. The Supreme
Court, in Planned Parenthood v. Danforth, 428
U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976),
upheld the requirement that the woman give written consent in the first trimester, as well as the requirement that records of abortion procedures
be kept. However, the Court ruled that a
woman need not inform her husband of an
abortion performed in the first trimester,
because the state may not interfere in the
woman’s private decision concerning her pregnancy
during that period. For the same reason,
the Court struck down the law requiring a
minor to obtain parental consent in the first
trimester.

The Court clarified its position on parental
consent in later rulings. In Bellotti v. Baird, 443
U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979),
it struck down a state law that required the
consent of both parents or judicial approval—
commonly called judicial bypass—before an
unmarried minor could obtain an abortion. The
Court found the law unconstitutional because it
gave third parties—the child’s parents or the
court—absolute VETO power over the minor’s
ability to choose abortion, regardless of her best
interests, maturity, or ability to make informed
decisions. In H.L. v. Matheson, 450 U.S. 398, 101
S. Ct. 1164, 67 L. Ed. 2d 388 (1981), the Court
upheld a Utah statute requiring that a physician
notify the parents of a minor before performing
an abortion on her (Utah Code Ann. § 76-7-
304). Since the law required only notification
rather than consent, the Court reasoned that it
did not give any party veto power over the
minor’s decision. In Hodgson v. Minnesota, 497
U.S. 417, 110 S. Ct. 2926, 11 L. Ed. 2d 344 (1990),
the Court upheld a parental notification statute
because the statute’s provision for judicial
bypass took into account the best interests of the
minor, her maturity, and her ability to make an
informed decision.

In 1982, Pennsylvania passed the Abortion
Control Act, which required that the woman
give “voluntary and informed” consent after
hearing a number of statements, including declarations
of the following: the “fact that there
may be detrimental physical and psychological
effects” to the abortion; the particular medical
risks associated with the abortion method to be
employed; the probable gestational age of the
fetus; the “fact that medical assistance benefits
may be available” for prenatal care and childbirth;
and the “fact that the father is liable to
assist” in CHILD SUPPORT. The law also required
a physician to report the woman’s age, race,marital
status, and number of previous pregnancies;
the probable gestational age of the fetus; the
method of payment for the abortion; and the
basis of determination that “a child is not
viable.”

When the Pennsylvania law came before the
Court in the 1986 case Thornburgh v. American
College of Obstetricians & Gynecologists, 476 U.S.
747, 106 S. Ct. 2169, 90 L. Ed. 2d 779, the Reagan
administration’s Justice Department specifically
asked the Court to overturn Roe. In its brief, the
department argued that the Court should
“abandon” Roe because its textual and historical
basis was “so far flawed” as to be a source of
instability in the law. Instead, the brief urged, the
Court should leave the state legislatures free to
permit or prohibit abortion as they wish. However,
by a narrow (5–4) vote the Court found all
the provisions of Pennsylvania’s Abortion Control
Act to be unconstitutional, thereby reaffirming
its previous decisions upholding a woman’s
constitutional right to abortion. “The states,”
wrote Justice Blackmun in the Court’s opinion,
“are not free, under the guise of protecting
maternal health or potential life, to intimidate
women into continuing pregnancies.” Pennsylvania
defended itself by claiming that its procedures
gave the pregnant woman information
that would better inform her decision regarding
abortion. Blackmun, although he agreed in principle with the idea of informed consent, found that the Pennsylvania procedures were designed not so much to inform as to encourage a woman to withhold her consent to an abortion.

The narrow margin of the Court’s decision encouraged the anti-abortion movement. By the time the Court reached its next major abortion decision, in 1992—Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674—many expected it to finally reverse Roe. Again, it did not. Casey, the most important abortion decision since Roe, concerned amendments to the same Pennsylvania Abortion Control Act of 1982. The amendments prohibited abortions after twenty-four weeks except to save the woman’s life or to prevent substantial and irreversible impairment of her bodily functions;
required a woman to wait twenty-four hours after giving her informed consent before receiving
an abortion; allowed only a physician to give
informed-consent information; required a
woman to notify her spouse; and mandated that
minors obtain informed consent from at least
one parent or a court before receiving an abortion. The plaintiffs in the case, five family planning clinics and a physician provider of abortion
services, asked the Court to declare the statutes
invalid.

In a close (5–4) decision, the Court again
supported the basic provisions of Roe and
upheld a woman’s right to decide to obtain an
abortion. The Court did, however, uphold all the
Pennsylvania statutes except for the spousal
notification provision, arguing that they did not
present an “undue burden” to the woman’s
reproductive rights. Justices O’Connor,
Kennedy, and DAVID H. SOUTER wrote the
majority opinion, and Justices JOHN PAUL
STEVENS and Blackmun wrote concurring opinions.
Chief Justice Rehnquist and Justices Scalia,
BYRON R. WHITE, and CLARENCE THOMAS all
dissented.

Noting that the case marked the fifth time
the Justice Department under the Ronald Reagan
and GEORGE H. W. BUSH administrations
had filed a report with the Court making known
its desire to overturn Roe, the Court’s opinion
defended the reasoning of the Roe decision. The
Court characterized the Roe ruling as having
three major provisions:

First is a recognition of the right of the woman to choose to have an abortion before
viability and to obtain it without undue
interference from the state. . . . Second is a
confirmation of the State’s power to restrict
abortions after fetal viability, if the law contains
exceptions for pregnancies which
endanger a woman’s life or health. And third
is the principle that the State has legitimate
interests from the outset of the pregnancy in
protecting the health of the woman and the
life of the fetus that may become a child.

In Casey, as in Roe, the Court found the constitutional basis of a woman’s right to terminate her pregnancy in the Due Process Clause of the Fourteenth Amendment. As the Court stated, “It is a promise of the Constitution that there is a realm of personal liberty which the government
may not enter.” The Court also invoked the legal
doctrine of STARE DECISIS, the policy of a court
to follow previously decided cases rather than
overrule them.

However, the Court emphasized, more than
it had in Roe, “the State’s important and legitimate
interest in potential life,” which is a quote
taken directly from Roe. The justices also sought
to better define the “undue burden” standard,
originally developed by Justice O’Connor, that
the Court had used to assess the validity of any
possible regulations of a woman’s reproductive
rights. The Court more precisely defined an
undue burden as one whose “purpose or effect is
to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus
attains viability.”

The dissenting justices in the case restated
their opinion that Roe was decided wrongly
because no fundamental right for a woman to
choose to terminate her pregnancy was written
into the U.S. Constitution and because U.S. society,
in the past, permitted laws that prohibited
abortion. They also gave different arguments for
upholding the Pennsylvania statute’s restrictions.
Such provisions had only to show a
“rational basis,” and using that test, they would
have upheld all the challenged portions of the
Pennsylvania law. Chief Justice Rehnquist and
Justice Scalia both argued that the Court had
misused the notion of stare decisis in the case,
because the Court did not uphold all aspects of
Roe. Scalia also maintained that although the
liberty to terminate a pregnancy may be of great
importance to many women, it is not “a liberty
protected by the Constitution.”

The Court’s decision in Casey was used to
strike down other state laws that sharply
restricted women’s access to abortion. In September
1992, citing the Casey decision in
Sojourner v. Edwards, 974 F.2d 27, the U.S. Court
of Appeals for the Fifth Circuit struck down a
Louisiana law that would have imposed stiff sentences
on doctors performing abortions for reasons
other than saving the life of the mother or
in cases of rape or incest if the victim reported
the crime (La. Rev. Stat. Ann. 14:87). The
appeals court found the statute unconstitutional
because it imposed an undue burden on women
seeking an abortion before fetal viability. The
Supreme Court later upheld this ruling without
comment (Sojourner, 507 U.S. 972, 113 S. Ct.
1414, 122 L. Ed. 2d 785 [1993]).

After Planned Parenthood v. Casey

As a result of the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the battle over abortion moved beyond the question of whether Roe v. Wade would be overturned, to focus on what conditions truly constitute an American woman’s right to safe, legal abortion. After a number of incidents of violence at abortion clinics, the abortion rights movement focused on lobbying for legislation and winning court cases guaranteeing access to abortion clinics. The anti-abortion movement, on the other hand, continued to vigorously oppose abortion but became increasingly split between militant and moderate factions. Behind the split was an alarming increase in violent actions by militant anti-abortion protesters. Between 1993 and 1994, five abortion providers
were killed by anti-abortion militants. Although
such killings undermined public support for the
anti-abortion movement, they also damaged the
morale of those who staff family planning clinics;
some clinics even shut down. As a result,
family planning services, including abortion,
remain difficult to obtain for women in many
parts of the United States, particularly in rural
areas.

The Supreme Court decided a number of
different cases surrounding the issue of antiabortion
protests, many of which made it more
difficult for anti-abortion groups to disrupt the
operations of family planning clinics. In Madsen
v. Women’s Health Center, 512 U.S. 753, 114 S.
Ct. 2516, 129 L. Ed. 2d 593 (1994), the Court
upheld a regulation barring abortion protesters
within 36 feet of a Melbourne, Florida, clinic. In
another 1994 decision, National Organization
for Women v. Scheidler, 510 U.S. 249, 114 S. Ct.
798, 127 L. Ed. 2d 99, the Court upheld the use
of the Racketeer Influenced and Corrupt Organizations
(RICO) chapter of the Organized
Crime Control Act of 1970 (18 U.S.C.A. §§
1961–1968) against militant anti-abortion
groups. RICO, which was originally designed to combat Mafia crime, gives the government a potent tool to convict those involved in violence against abortion providers and their clinics.

In May 1994, President Clinton signed into law another tool to be used against antibortion militants, the Freedom of Access to Clinic Entrances Act (FACE), which allows for federal criminal prosecution of anyone who, “by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes
. . . with any person . . . obtaining or providing
reproductive health services” (18 U.S.C.A. §
248). The law also makes it a federal crime to
intentionally damage or destroy the property of
any reproductive health facility, and it permits
persons harmed by those engaging in prohibited
conduct to bring private suits against the wrongdoers. The law imposes stiff penalties as well for those found guilty of violating its provisions.

Ultimately, medical technology may have as much to do with the outcome of the abortion
debate as politics. New drugs have been developed that induce abortion without a surgical
procedure. The most well known of these is RU486, or mifepristone, developed by the French pharmaceutical company Roussel Uclaf. The drug blocks the action of the female hormone progesterone, preventing the implantation of a
fertilized egg in the wall of the uterus. It is used
with a second drug in pill form, prostaglandin,
taken 48 hours later, which causes uterine contractions.
The uterine lining is then sloughed
off, along with any fertilized eggs.Widely used in
Europe since the early 1990s, RU-486 is said to
be 92 to 95 percent effective. The drug is also
being tested as a possible treatment for breast
cancer, endometriosis, brain tumors, and
depression.

The FOOD AND DRUG ADMINISTRATION (FDA), under the Reagan and Bush administrations, banned the importation of RU-486 into the United States. However, in April 1993, the Clinton administration pressured Roussel Uclaf to license the drug for sale to the U.S. Population Council, a New York-based nonprofit organization, which said it would conduct clinical tests in the United States. In 1994, the pharmaceutical
company donated its U.S. patent of the drug to the council. By 1996, the Population Council
had filed for FDA approval, and in September 2000, the FDA approved the “abortion pill.”
Danco Laboratories, a New York-based women’s
health pharmaceutical company which had been
given the rights by the council to manufacture
and distribute mifepristone, made the drug available to U.S. clinics by November. In the two years following its introduction, over one hundred
thousand women in the United States
opted to use mifepristone as an abortion option.
Abortion protesters quickly rallied and began to
petition the FDA to rescind their approval of the
drug, claiming that mifepristone is harmful to
women.

The Pro-Life Movement and the Courts
Even before the Supreme Court’s landmark
1973 abortion ruling in Roe v. Wade, pro-life
groups were picketing and protesting at family
planning clinics that perform abortions. Such
groups had formed in response to an abortion
reform movement that by 1970 had succeeded
in liberalizing abortion laws in many states.
From the start, most anti-abortion demonstrators
modeled their protests on those of the civil
rights movement of the 1950s and 1960s. The
anti-abortion movement was led by such people
as Joan Andrews, a pacifist and HUMAN RIGHTS
advocate who became a hero for the movement
after she spent two-and-a-half years in a Florida
jail for attempting to disengage a suction
machine used in abortions. The movement
advocated the nonviolent approach to civil disobedience
pioneered by Mohandas K. Gandhi
and MARTIN LUTHER KING JR. By 1975, two
years after Roe, Catholic groups had begun to
conduct sit-ins at family planning clinics where
abortions were performed.With time, evangelical
Protestant groups joined the movement, and
by the mid-1990s, they accounted for a majority
of anti-abortion activists.

Pro-life groups have come to call their activities
direct actions or rescues, believing that they
are saving unborn children from murder, and
their tactics have grown increasingly complex.
Typical stratagems include bringing in dozens or
hundreds of volunteers and blocking clinic
entrances with their bodies, often chaining
themselves to doors; shouting slogans, sometimes
with bullhorns; attempting to intercept
women leaving or entering the building and plying
them with anti-abortion literature; displaying
graphic pictures of fetuses; and trailing clinic
employees to and from work while shouting
such things as “Baby killer!” Besides demonstrating,
anti-abortion groups have sponsored
pregnancy crisis centers, where they counsel
pregnant women, with the intention of persuading
them to carry their pregnancies to term. By
the mid-1980s, activists had created national
organizations and networks that promoted civil
disobedience to stop the practice of abortion.
The most well known of these is Operation Rescue,
which was started in the 1980s by Randall
Terry, an evangelical Christian.

The aggressive strategies of the anti-abortion
movement prompted legal responses from
women’s and abortion rights organizations,
resulting in a number of cases that have reached
the Supreme Court. In several different rulings,
the Court has attempted to clarify what is and is
not allowed in anti-abortion demonstrations. In
making these decisions, the Court has been careful
to balance the rights of the demonstrators—
particularly their right to free speech—with the
rights of women seeking to use family planning
clinic services. In 1988, for example, in Frisby v.
Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed.
2d 420, the Court upheld a Brookfield,Wisconsin,
city ordinance prohibiting pickets “focused
on, and taking place in front of, a particular residence.”
The ordinance had been created in response to anti-abortion demonstrations targeting the private home of an obstetrician who performed abortions, a tactic assumed by the protesters after picketing at the physician’s clinic had not stopped its operation. Justice Sandra Day O’Connor wrote in the Court’s opinion, “There is simply no right to force speech into the home of an unwilling listener.”

A later Supreme Court decision gave abortion clinics further protection: it supported the
constitutionality of a court injunction prohibiting protesters from going within 36 feet of a
clinic that had been a regular target of protests. In July 1994, in Madsen v. Women’s Health Center, 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d
593, the High Court ruled 6–3 to let stand the
36-foot exclusion zone for the Melbourne,
Florida, abortion clinic. However, the Court did
strike down other provisions of the injunction,
such as a 300-foot exclusion zone and restrictions
on carrying banners and pictures. The ruling
was considered a major defeat for the
anti-abortion movement. Justice Antonin Scalia
wrote a sharp dissent in which he claimed that
the Supreme Court’s position on abortion had
claimed “its latest, greatest and most surprising
victim: the First Amendment.”

Increased Violence Changes the Debate
Violence has been a part of the heated
debate surrounding abortion ever since the 1973
Roe v.Wade decision that guaranteed a woman’s limited right to an abortion. Bombings, ARSON, and even murder have been committed by antiabortion
activists in the name of their cause.
The National Abortion Federation counted
more than three thousand violent or threatening
incidents against abortion clinics between 1976
and 1994. In the 1990s, the extremist wing of the
anti-abortion movement turned even more violent,
including murder as part of its tactics.
Some extremists now view killing HEALTH CARE
professionals who perform abortions as justifiable
HOMICIDE.

Between March 1993 and the end of 1994,
five staff workers at abortion clinics were murdered
by anti-abortion zealots. Dr. David Gunn
was fatally shot on March 10, 1993, outside an
abortion clinic in Pensacola, Florida, by Michael
Griffin, who was sentenced to life in prison. In
August 1994, Dr. John Bayard Britton, age 69,
who had replaced Gunn as circuit-riding doctor
in northern Florida, and his escort, James Barrett,
age 74, were shot repeatedly in the face with
a shotgun as their car pulled into the parking lot
of the Ladies Clinic of Pensacola. Minutes later,
police arrested Paul Hill, an anti-abortion
extremist. President Bill Clinton called Britton’s
and Barrett’s killings a case of domestic TERRORISM.
Hill was executed in September 2003. In
December 1994, in perhaps the most gruesome
incident of all, John Salvi killed two people and
wounded five more when he opened fire in two
Boston-area family planning clinics. Salvi was
sentenced to life in prison, where he later committed
suicide.

The government and abortion rights groups
have responded to the increased violence in two
ways: reviewing existing laws to find those that
can be used to investigate and prosecute violent
groups and individuals, and creating new laws
that specifically address access to abortion clinics.
In 1993, women’s rights groups attempted to
use an existing civil rights law as precedence in
Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993).
They were not successful. The Supreme Court
ruled that a nineteenth-century federal civil
rights law (42 U.S.C.A. § 1985[3]) aimed at protecting
African Americans from the KU KLUX
KLAN could not be used to prevent anti-abortion
protesters from blockading abortion clinics.
Originally enacted as part of the KU KLUX KLAN
ACT of 1871, the law was specifically aimed at
addressing mob violence and VIGILANTISM
against African Americans.

In 1989, a lower-court ruling found that
Operation Rescue had violated trespassing and
public NUISANCE laws and had conspired to violate
the right to interstate travel of women seeking
abortions at clinics. The court banned
Operation Rescue from trespassing on or
obstructing access to abortion clinics (NOW v.
Operation Rescue, 726 F. Supp. 1483 [E.D. Va.
1989]). This decision was reversed by the
Supreme Court in Bray, in a 6–3 ruling, when it
held that women did not qualify as a class protected
from discrimination by the provisions of
the Ku Klux Klan Act.

After Bray, congressional supporters of
abortion rights, Representative Charles E.
Schumer (D-N.Y.) and Senator EDWARD M.
KENNEDY (D-Mass.), introduced the Freedom of
Access to Clinic Entrances Act (FACE), which
gives federal courts the authority to issue
restraining orders against protesters blockading
abortion clinics (18 U.S.C.A. § 248). It was
signed into law by President Clinton on May 26,
1994. The law allows for federal criminal prosecution
of anyone who, “by force or threat of
force or by physical obstruction, intentionally
injures, intimidates, or interferes. . .with any person.
. .obtaining or providing reproductive
health services.” The law also makes it a federal
crime to intentionally damage or destroy the
property of any reproductive health facility, and
it permits persons harmed by those engaging in
prohibited conduct to bring private suits against
the wrongdoers. The penalties for violation of
the act include imprisonment for up to one year
and a fine of $10,000 for a first offense; for each
subsequent offense, penalties can be up to three
years’ imprisonment and $25,000. FACE is patterned
after existing civil rights laws, including 18 U.S.C.A. § 245(b), which prohibits force or threat of force to willfully injure, intimidate, or interfere with any person who is voting, engaging in activities related to voting, or enjoying the benefits of federal programs. Nevertheless, FACE is not identical to previous federal civil rights laws, particularly where it prohibits acts of physical obstruction.

FACE ignited immediate challenges by antiabortion groups who claimed that it abridged their FIRST AMENDMENT right to FREEDOM OF SPEECH. Courts were unwilling to invalidate the law on this ground, reasoning that the law prohibits only conduct—as in “force,” “threat of force,” and “physical obstruction”—rather than speech (see Council for Life Coalition v. Reno, 856 F. Supp. 1422, No. 94-0843-1EG[CM], 1994 WL 363132 [S.D. Cal. 1994]).

Since the Freedom of Access to Clinic Entrances Act was passed, the Supreme Court
has reviewed several laws restricting protests at
clinics, with the goal of BALANCING the interests
of protecting women seeking abortions with the
freedom of speech interests of abortion clinic
protesters. The Court has used an “intermediate
scrutiny” standard to make their determinations.
This standard analyzes the constitutionality
of any regulation that infringes on speech to
see whether it serves a legitimate STATE INTEREST,
whether it is narrowly tailored to serve that
interest, and whether alternative paths exist for
protesters to communicate their message.

For example, in Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S.Ct. 855 (1997), by an
8–1 vote, the Court invalidated a New York state court injunction that created a 15-foot “floating” buffer zone around any person or vehicle
seeking access to or leaving an abortion clinic.
The court majority held that the floating buffer
zone burdened “more speech than necessary to
serve a relevant government interest.” However,
by a 6–3 vote, the Court upheld a provision creating
a 15-foot “fixed” buffer zone outside of
abortion clinic doorways, driveways, and parking
lots.

Three years later, the Court issued a more
detailed decision involving restrictions on abortion
protests. In Hill v. Colorado, 530 U.S. 703,
120 S.Ct. 2480 (2000), the Court upheld by a 6–3
majority a Colorado statute that made it unlawful
for any person within one hundred feet of
the entrance to any abortion clinic (or other
health facility) to knowingly approach within
eight feet of another person without that person’s
consent, with the purpose of passing out a
leaflet or handbill to, displaying a sign to, engaging
in oral protest with, or counseling said individual. The Court reasoned that the states’ interest in protecting the health and safety of its citizens justified a special focus on unimpeded access to health care facilities and the avoidance
of potential trauma to patients that could result
from confrontational protests. In addition, the
statute did not violate the First Amendment
because it protected listeners from unwanted
communication, was content-neutral, and
served as a valid TIME, PLACE, AND MANNER
RESTRICTION.

Abortion rights supporters suffered a more
serious setback with the Court’s decision in
Scheidler v. NOW & Operation Rescue v. NOW,
123 S.Ct. 1057 (U.S. 2003). By a vote of 8–1, the
Court determined that federal RACKETEERING
laws, such as RICO, could not be used as the
basis for criminal charges against pro-life protestors
who demonstrate outside abortion clinics.
The Court further found that the federal
Hobbs Act was not violated by protestors who
had not obtained property, attempted to obtain
property, or conspired to obtain property from
the abortion clinics. The Hobbs Act expanded
the common-law definition of EXTORTION to
include acts by private individuals. 18 U.S.C.A. §
1951(b)(2). For purposes of the Hobbs Act
requirement that property must be obtained for
extortion to occur, word “obtain” means to gain
possession of. The extortion provision of the
Hobbs Act requires not only the deprivation, but
also the acquisition, of property.Women seeking
access to the abortion clinic had argued that
their right to seek medical services from the
clinics, the clinic doctors’ rights to perform their
jobs, and the clinics’ rights to conduct their business—constituted “property” for purposes
of the Hobbs Act, and those right had been “extorted” from them by abortion protestors.

The Supreme Court held that by interfering with, disrupting, and in some instances “shutting down” clinics that performed abortions, individual and corporate organizers of antiabortion protest network did not “obtain” or attempt to obtain property from women’s rights organization
or abortion clinics, and so did not commit
“extortion” under the Hobbs Act, as required
for organization and clinics to establish Racketeer Influenced and Corrupt Organizations Act (RICO) predicate offense; while organizers may
have deprived or sought to deprive organization
and clinics of their alleged property right of
exclusive control of their business assets, they
did not acquire any such property, nor did they
pursue or receive something of value from
organization or clinics that they could exercise,
transfer, or sell. The Court also ruled that an
injunction obtained against the abortions protesters
litigating this case on the basis of RICO
was invalid.

The debate and litigation surrounding the
issue of anti-abortion protests show little sign of
waning, with pro-choice advocates attempting
to limit protesters’ efforts to demonstrate at
abortion clinics, and anti-abortion protest
groups challenging the laws regulating their
activities, on the grounds that such laws abridge
freedom of speech.

New Attempts to Restrict Abortion
The Supreme Court also continues to be
confronted with ongoing efforts to restrict abortion.
In Mazurek v. Armstrong, 520 U.S. 968, 117
S. Ct. 1865 (1997), the Court upheld Montana’s
statute requiring that only licensed physicians
perform abortions, ruling that physician-only
requirements in general are constitutional. In
another decision out of Montana, Lambert v.
Wicklund, 520 U.S. 292, 117 S.Ct. 1169 (1997),
the Court upheld a state statute requiring oneparent
notification before a minor can have an abortion. The judicial bypass procedure in this case required a minor to show that parental notification was not in her best interest.

Perhaps the biggest controversy to erupt in the late 1990s involved the debate over what is termed “partial-birth” abortion. Anti-abortion activists succeeded in having legislation passed in twenty-nine states that bans physicians from performing what doctors call dilation and
extraction. It is used most commonly in the second
trimester, between twenty and twenty-four
weeks of pregnancy, when a woman suffers from
a life-threatening medical condition or disease.
In Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct.
2597 (2000), by a vote of 5–4, the Court struck
down Nebraska’s ban on partial-birth abortion.
The Court ruled the statute was invalid because
it lacked any exception to protect a woman’s
health, noting that the state could promote but
not endanger a woman’s health when it regulates
the methods of abortion. It also concluded that
terms in the statute were unconstitutionally
vague such that it would affect not only partial
birth abortion but also other constitutionally
protected second-trimester abortion methods.

The importance of this decision lies in the fact that in early 2003 the U.S. Congress passed
a nationwide ban on partial-birth abortions similar to the Nebraska law. The Congress had
passed this law before, only to have Bill Clinton veto it. President GEORGE W. BUSH went on record as saying he would sign the bill if it reached his desk. If he did so, the Supreme
Court could be called upon to decide whether Stenberg applied.

FURTHER READINGS
Drucker, Dan. 1990. Abortion Decisions of the Supreme Court,
1973 through 1989: A Comprehensive Review with Historical
Commentary. Jefferson, N.C.: McFarland.
De Rosa, Melissa. 2002. “Partial-Birth Abortion: Crime or
Protected Right?” St. John’s Journal of Legal Commentary
16 (winter).
Edwards, Jaime. 2003. “McGuire v. Reilly: The First Amendment
and Abortion Clinic Buffer Zones in the Wake of
Hill v. Colorado.” U.C. Davis Law Review 6 (February).
Mauro, Tony. 2003. “Weighing the Fate of Roe v.Wade:With
Increased Fervor After the 30 Years of Legal and Social
Turmoil It Spawned, Scholars Kick It, Probe It, Tear It
Apart and Try To Rewrite It.” New Jersey Law Journal
171 (January).
McCorvey, Norma. 1994. I am Roe. New York: Harper-
Collins.
Palmer, Louis J. 2002. Encyclopedia of Abortion in the United
States. Jefferson, N.C.: McFarland.
Reagan, Ronald. 1984. Abortion and the Conscience of a
Nation. Nashville: Nelson.
Rubin, Eva R. 1987. Abortion, Politics, and the Courts: Roe v.
Wade and Its Aftermath. New York: Greenwood.

CROSS-REFERENCES
Constitutional Amendment; Fetal Rights; Husband and
Wife; Parent and Child; Privacy; Reproduction; “Roe v.
Wade” (Appendix, Milestone); Wattleton, Alyce Faye;
Women’s Rights.

Three Sides to the Abortion Debate

To what extent does a woman have a
right to obtain an abortion? And to
what extent does a person have a right to
protest the practice of abortion? These
are two fundamental questions, and two
conflicting rights, that have emerged in
the decades following the U.S. Supreme
Court’s controversial decision in the 1973
case ROE V. WADE, 410 U.S. 113, 93 S. Ct.
705, 35 L. Ed. 2d 147.With time, the conflict
between those who differ on the
answers to these questions, and the interpretation
of these rights, has become
more and more heated, to the point of
violence. The question of access to abortion
clinic property—whether
to obtain clinic services or to
protest them—has become a
pressing issue.
Three major points of view
dominate the abortion debate:
the pro-choice, or abortion
rights, view; the moderate prolife,
or moderate anti-abortion, view; and
the extremist (or militant) pro-life, or
anti-abortion, view.

The pro-choice, or abortion rights,
side of the debate is made up of a number
of women’s rights, family planning,
and medical organizations, and other
groups of concerned citizens and professionals.
These include the NATIONAL
ORGANIZATION FOR WOMEN (NOW),
the Planned Parenthood Federation of
America, the National Abortion Federation,
and the National Abortion and
Reproductive Rights Action League
(NARAL). Many religious organizations
have also taken positions that endorse the
right of women to seek abortions in specific
situations. Most of these pro-choice
groups argue that a woman’s decision to
carry a pregnancy to term is a private
choice that should not be interfered with
by the state. They also maintain that
abortion, although not a preferred family
planning method, has always been used
by women to gain control over their
pregnancies. According to this view,
women must have safe and legal access to
abortion; without this access, women are
likely to seek unsafe, illegal abortions that
may result in their injury or death. Prochoice
advocates also maintain that giving
women control over their
reproductive functions—what
they call their reproductive
rights—is a fundamental
requirement for achieving
equality between men and
women in U.S. society. Norma
McCorvey, who sought anonymity
as Jane Roe in Roe, spoke eloquently
for the pro-choice position in a
1989 speech before a women’s rally:
Prior to Roe v. Wade, approximately
one million women had
illegal abortions each year.
Approximately 5,000 of these
women were killed. Another
100,000 were hospitalized from
botched abortions.

Obviously, abortion will continue
whether it is legal or not.
My concern is for the safety of
millions of women should our
freedom of choice be taken away
from us. I want it clearly understood
that I do not promote abortion.
I promote personal choice.
If we return to the antique
methods of dealing with
unwanted pregnancies that
existed before Roe v. Wade, the
women’s movement will be taking
an enormous step backward.
We are on the verge of having
our reproductive freedom taken
away from us if we do not take a
stand and let our voices be heard
NOW. (In 1995,McCorvey had a
“born-again” experience and
switched sides on the abortion
issue.)

Pro-choice groups therefore remain
committed to the constitutional right to
privacy defined in Roe. They view antiabortion
demonstrations that prevent
women from obtaining abortions as
interfering with that right to privacy.
The pro-choice group also has a
range of viewpoints within it. While all
persons who describe themselves as prochoice
support a general right to abortion,
some oppose some kinds of
abortions, such as late-term abortions.
The moderate pro-life movement
consists of many different organizations,
including the NATIONAL RIGHT TO
LIFE COMMITTEE, Human Rights
Review, and Feminists for Life of America.
Although its members are extremely
diverse, most come from religious groups
such as the Catholic Church and evangelical
Protestant denominations. Generally,
these groups believe that the fetus is a person with rights equal to those of other
people, and some of these identify the
unborn person as existing in the embryonic
stage or from the moment of conception.
Many are willing to allow
abortion in certain cases, usually when
pregnancy threatens the health of the
mother or has resulted from rape or
INCEST. Moderates, when they support
changes in abortion laws and regulations,
differ from militants in their emphasis on
using existing legal channels.
Militant pro-life groups share many
of the views of moderate groups, but they
favor an activist use of civil disobedience
to prevent abortion procedures and to
save or rescue the lives of the unborn.
Randall Terry and Flip Benham, of the
most well known anti-abortion group,
Operation Rescue, are representative of
the militant views. Terry, Operation Rescue’s
founder and leading figure, participated
in his first anti-abortion protest in
1984 and has served time in prison
because of his demonstrations. As an
evangelical Protestant Christian, Terry
sees abortion as the work of the devil: “I
believe that there is a devil, and here’s
Satan’s agenda. First, he doesn’t want
anyone having kids. Secondly, if they do
conceive, he wants them killed. If they’re
not killed through abortion, he wants
them neglected or abused, physically,
emotionally, sexually.” Terry opposes
abortion in all cases. His group’s main
tactics, he said, included “rescue missions,
boycotts and protests.”

A minority of the militant anti-abortion
activists sanction the use of physical
force. A small number even regard the
killing of abortion providers as justifiable
HOMICIDE. When asked to explain this
increasing tendency toward violence,
militant pro-life leader Joseph Scheidler,
of the Pro-Life Action Network, blamed
it on the 1994 Freedom of Access to
Clinic Entrances Act (FACE) and buffer
zone restrictions that kept protesters
from conducting rallies at abortion clinics.
Scheidler argued that making it
tougher to have peaceful protests gave
people a rationale for having violent
protests. Benham, of Operation Rescue,
condemned the anti-abortion killings.
However, after John Salvi murdered two
people and wounded others in an abortion
clinic shooting in late 1994, Benham
commented, “There is little that federal
marshals or anyone else can do to halt
this murder and violence. We will not
have peace outside the womb until peace
is restored within the womb.” Added
Terry, “We’re involved in a cultural civil
war.” In February 2003, Scheidler and his
group won a major victory when the U.S.
Supreme Court ruled 8 to 1 that the
RICO statute was improperly used
against the group and other pro-life
activists, in the case brought against them
by the National Organization for Women
(Scheidler v. Nat’l Organization for
Women, Inc., 537 U.S. 393, 123 S. Ct.
1057, 154 L. Ed. 2d 991 [2003]).
In the end, the extremist position
may have done more to hurt than to help
the anti-abortion cause. The publicized
violence of the movement, in combination
with the new prosecutorial powers
granted in FACE, served to alienate many
of the more moderate individuals in prolife
groups, reducing the membership of
those groups to a militant core and making
those outside the groups less sympathetic
to their cause.

But as a positive result of the fallout,
significant numbers from both sides tried
to find common ground and an end to
the mutual mistrust and ill will. Aptly
calling themselves the Common Ground
Network for Life and Choice, the alliance
made its largest impact with the political
issue of partial-birth abortions, when it
began a campaign to ban the procedures.
This more subtle collective voice of concerned
citizens appeared to represent an
important change in the direction of
abortion debate. In specific, the committed
extremists on both ends were being
replaced with a new and more sophisticated
national consensus concerning the
acceptable limits of abortion rights. As of
March 2003, the Partial Birth Abortion
Ban Act had won approval from the U.S.
Senate and was expected to win approval
from the House of Representatives later
that spring.

FURTHER READINGS
Lerner, Sharon. 2002. “A New Kind of Abortion
War.” The Village Voice.
“Recent Developments on Partial-Birth Abortion.”
2003. National Right to Life Website.
Available online at abortion/pba/PartialBirthAbortion
RecentDevelopments.html> (accessed
April 10, 2003).
Risen, James, and Judy L. Thomas. 1998.Wrath
of Angels: The American Abortion War.
New York: Basic Books.
Scheidler, Eric. “Scheidler Victory in the
Supreme Court.” Available online at
victory.htm> (accessed April 17, 2003).

CROSS-REFERENCES
Civil Rights Acts; Schools and School Districts.