January 22, 2003, marked 30 years since the historic Roe vs Wade decision that gave women in the US access to legal abortions. However, under the presidency of George Bush, that ruling seems increasingly precarious.
In addition to an anti-choice president, the Republican Party controls both houses of Congress. While five out of nine current Supreme Court justices strongly support abortion rights, at least two justices are likely to retire within a few years.
While running for office, Bush promised to appoint judges that "respect the sanctity of innocent human life". More than 100 anti-abortion judges have already been nominated for lifetime seats on federal, district and appellate courts. Bush is also considering potential nominees for lifetime appointments to the Supreme Court. As well as being conservative, many of these are in their late 30s and early 40s. If appointed these judges will enshrine an anti-choice and anti-women perspective for up to 40 years.
The Roe vs Wade decision has been under attack almost since the day it was decided in 1973. A number of rulings, including Planned Parenthood vs Casey in 1992, significantly increased the restrictions that can be placed on abortion by individual states. Since 1995, states have passed 335 restrictions on the procedure, with 34 new anti-choice measures enacted in 2002 alone.
Roe vs Wade was a historic decision based on a woman's right to privacy, enshrined in the United States constitution. This was found to apply to a woman's right to make the decision to terminate during the early stages of pregnancy. The ruling also found that the right to privacy was not absolute with regard to a woman's right to decide on abortion, and that the state should assess interests such as safeguarding a woman's health and protecting "potential life". Up until the end of the first trimester, the woman's interests were considered to be primary.
The Supreme Court ruled that foetuses do not have a constitutional right to life. If a woman's life or health were at stake, abortion could not be banned, no matter what the stage of the pregnancy.
With support from the Bush administration, anti-choice forces have been manoeuvring to get other legislation passed that will assist in the overturning of Roe vs Wade. Samuel Casey, executive director the Christian Legal Society, asserts that "in as many areas as we can, we want to put on the books that the embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection — even protection that would trump a woman's interest in terminating a pregnancy."
In 2002, embryos and foetuses became "children" eligible for medical coverage under the State Child Health Insurance Program, while the low-income women who carry them are not covered, even if they develop a serious or life threatening condition during pregnancy.
Foetuses are now also considered 'persons' to be monitored by the Centres for Disease Control panel regulating human clinical trials. A new bill has been introduced in Kentucky that defines an unborn child as a person and would permit homicide charges for "killing" an unborn child, with a special exemption at this stage for health-care providers. At least 27 states have similar laws.
If the Roe vs Wade decision is overturned, some states would make abortion a crime, while others would keep it legal. In addition, if a foetal "right to life" was enshrined by the Supreme Court, abortion would become illegal in all states.
Millions of people have stood up to protect Roe vs Wade over the last 30 years. Thousands have marched and lobbied governments to support a woman's right to choose. Medical staff have risked their lives to provide full reproductive health services.
Despite 60% of Americans supporting first trimester abortions, the freedom to access legal abortion services hangs by a thread. A woman's right to control her fertility is fundamental to her ability to control her own life, and this right should not be contingent upon the whim of a court.
Decriminalisation of abortion would put it where it belongs, back into the realm of medical procedures. Only then will the women of the US be able to step off the merry-go-round of changing legal opinion.
BY NATALIE ZIRNGAST
[The author is a member of the Socialist Alliance and the Democratic Socialist Party.]
From Green Left Weekly, February 19, 2003.
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