A spate of recent dramatic developments in reproductive-health issues is beginning to offer a glimpse of the new fight over reproductive rights and sexual health. The good news is that most of these battles have been victories for those who believe that sexual health and conduct are private issues outside the purview of the government. But the most important development may, in fact, still be under the radar.
Recently, some Wisconsin pharmacists and health-care workers drew national media attention when they began to refuse to give out the pill, on the grounds that use of birth control is tantamount to abortion. Attorney General Peg Lautenschlager issued an opinion in response to this trend in August, stating that health-care professionals are required to provide full medical coverage, including the pill or the morning-after pill.
The move quickly met a strong anti-choice reaction. The Republican-controlled Wisconsin legislature attempted to pass a “conscience clause” which would free pharmacists of this obligation, only to have it vetoed by Governor Doyle. Doyle made the right decision, since the right to free access to birth control can be found in the 1965 Griswold decision, in which the Supreme Court outlined the constitutional right to privacy. This will probably not be the last attempt by anti-choice activists to reduce the availability of birth control. (Though one may well wonder why, since birth control will help to reduce unplanned pregnancies, and consequently the demand for abortions.)
Additionally, last week a federal judge in Nebraska ruled that the Partial-Birth Abortion Ban Act of 2003 (which outlaws the procedure of dilation and extraction, a late-term abortion procedure) was unconstitutional; the third time a federal court has made such a ruling. Many analysts believe that the act is a “foot in the door” measure designed to pave the way for further restricting abortion rights through legislative rather than judicial means, since the now-famous case of Roe v. Wade, which established the right to have abortions, has yet to be overturned in the courts. But all that may soon change.
Yesterday, a three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans, La., rejected a motion from Norma McCorvey, the original plaintiff in Roe v. Wade, to have the landmark decision overturned. Since the decision, McCorvey has turned around and become an anti-abortion activist and has sought numerous times to have abortion rights restricted or overturned both in Congress and the courts.
The Fifth Circuit panel rejected McCorvey’s motion, in which she argued that abortion should be outlawed because it causes women to sustain long-term emotional trauma. The panel decided that since states are no longer seeking to outlaw abortion in the wake of the Roe decision, there is no existing controversy over the legality of abortion procedures upon which the courts can rule, and the issue was moot. Choice activists have hailed the decision as a victory. But the decision may also lay the ground for future court-based challenges to abortion rights.
Judge Edith Jones, a member of the panel, wrote a concurring opinion, in which she argued that McCorvey’s claims go “to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child.” She argued that women suffer emotionally after an abortion, and that such suffering, coupled with the pain she argued fetuses feel during abortions, warrant a closer look by the Supreme Court on the constitutionality of abortion.
Jones is one of the most conservative judges in the federal judiciary and is infamous for her opinion in a case in which she argued that a death-row inmate whose attorney fell asleep during trial was not entitled to a claim of ineffective assistance of counsel. She is also a long-time friend of the Bush family and has been often singled out as a possible nominee to the Supreme Court.
While her Tuesday opinion does not carry the force of law, Jones’ concurrence adds to a body of legal literature and opinions leading up to a possible court challenge to Roe v. Wade, one that could threaten not only the abortion rights guaranteed by Roe but also the right to sexual privacy established in Griswold. If pro-choice voters need any additional reason to vote against George Bush in November, it’ll be to ensure that justices like Jones are not on the Supreme Court if such a challenge ever comes.
Rob Hunter ([email protected]) is a senior majoring in political science and philosophy.