When Coreen Costello, a staunch supporter of the anti-abortion movement in America, found herself in trouble during her third pregnancy, she decided to carry to term the child which had so many anomalies it could not survive. (The fetus had not developed lungs and was drowning in amniotic fluid.) Only when her life was threatened did Costello consent to undergo an emergency late-term abortion. The procedure not only saved her life, but also preserved her fertility. And shortly after her fourth (successful) pregnancy, she testified before the U.S. Congress in favor of late-term abortion.
Nevertheless, in 2003 the Congress introduced the first of several major limits on abortion in the country. In particular, it passed a law that banned a form of late-term abortion, labeled by its opponents as 'partial birth' abortion. President Bush signed the law and last month, after several court battles, the United States Supreme Court upheld the ban, declaring it constitutional by a five-to-four vote.
Abortion was made legal in the United States in 1973 when, by a vote of seven to two, the Supreme Court ruled that governments lacked the power to prohibit abortions. The court's decision was based on the ruling that a woman's right to terminate her pregnancy was inherent in the freedom of personal choice in family matters protected by the 14th Amendment of the US Constitution.
Ever since that landmark decision, known as Roe v. Wade - the defendant was Jane Roe and the Texas lawyer who argued against her was Henry Wade - there have been challenges to the ruling, which identified the trimester system as the key to the debate. Roe v. Wade gave American women an absolute right to abortion during the first three months of pregnancy, it allowed some government regulation in the second trimester, and it declared that states could restrict or ban abortions in the last trimester on the basis of fetal viability. During the third trimester, a woman could obtain an abortion only if doctors certified that it was necessary to save her life or health.
Following Roe v. Wade, more than 30 states adopted laws limiting abortion rights. The decision prompted a nationwide debate, dividing much of the society into pro-choice and pro-life camps. In 1980, the Supreme Court upheld a law that banned the use of federal funds for abortion except when necessary to save a woman's life. (Opponents quickly argued that this placed an undue burden on poor women.) Then, in 1989, the Supreme Court approved more restrictions, including a state's right to prohibit abortions at state clinics or by state employees.
The greatest legal triumph for the pro-life lobby came with the court's 1992 decision that said states could restrict abortions done for non-medical reasons even in the first trimester. As a result, many states now have rules in place, such as requiring young pregnant women to involve their parents or a judge in their abortion decision. Others have introduced waiting periods between a first visit to an abortion clinic and the actual procedure. Some states provide information designed to discourage, which must be presented to women seeking abortion. Last year, politicians in 18 states considered allowing pharmacists to refuse to fill women's birth-control prescriptions.
Some state actions are alarming - at least four compel abortion providers to tell women that abortion increases their risk of developing breast cancer, even though the National Cancer Institute has ruled out any such link; five require women to be told that a fetus can feel pain, although that has never been conclusively determined; and four say abortion leads to severe psychological stress - also disputed. In contrast, New York Governor Elliot Spitzer has said he will introduce legislation to shore up abortion rights in the state and officially decriminalize the procedure.
The issue of post-abortion psychological stress on women is key to the outrage women's advocates felt upon learning of the Supreme Court's decision. They were particularly furious that representing the majority view, Justice Anthony Kennedy wrote: "It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Conceding that "we find no reliable data" on whether late-term or any other abortion causes women emotional harm, Kennedy nevertheless said it was "self- evident" that some women might suffer "severe depression" or "loss of self esteem". Yale University professor Jack Balkin termed this "new paternalism".
Supreme Court Justice Ruth Bader Ginsburg, writing for the minority opinion, said: "Our obligation is to define the liberty of all, not to mandate our own moral code," adding, "the court deprives women of the right to make an autonomous choice, even at the expense of her safety."
Women's organizations responded immediately to the court's ruling. "With this decision, the court's majority inscribed in constitutional law both insulting paternalism and a profound distrust of this country's women, families and medical professionals," said Kim Gandy, President, National Organization for Women. Many spokeswomen pointed out the majority opinion was reached by five men, all of whom adhere to the Catholic faith.
In addition to the "paternalistic, sexist" approach, there are deep concerns about the fact that the ban allows no exception for a woman's health. Roger Evans, a spokesperson for the Planned Parenthood Federation of America said, "This aspect of the court's holding flatly departs from prior holdings that consistently held that, where there is any doubt, a woman's health must be protected. Now the court is saying that when there is any doubt, the legislature - not the doctor - has the final say."
The American College of Obstetrics and Gynecology, which represents 95 per cent of all board-certified Ob-Gyns in the country, has determined that late-term abortion "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor - in consultation with the patient, based upon the woman's particular circumstances - can make this decision."
Following the ruling, Senator Barbara Boxer and Representative Jerrold Nadler, Democrats from California and New York respectively, immediately introduced the Freedom of Choice Act. The proposed legislation would codify Roe v. Wade into law and guarantee a woman's right to choose in all 50 states. The Act quickly garnered support from 70 other legislators and numerous women's advocacy organizations.
"This case must serve as a wake-up call to American women that their right to a safe, legal abortion is not only being chipped away, but frontally assaulted," said Eleanor Smeal, president of The Feminist Majority. Added Nancy Keenan, president of NARAL Pro-Choice America, "This decision gave the green light to anti-choice politicians to launch additional attacks on safe, legal abortion without regard for women's health... We are committed to increasing the number of pro-choice members of Congress who will stand up for the fundamental values of freedom and privacy."
With debates already beginning for the 2008 presidential elections, those are clearly fighting words.