Behind the Federal Abortion Ban


On Tuesday, January 31, Priscilla Smith, former director of the Domestic Legal Program at the Center for Reproductive Rights, spoke to a predominately female and overwhelmingly supportive audience in Austin East about the status and impact of the recent court cases dealing with reproductive rights.

During her opening remarks the event’s hostess, Melissa Kogut, pointed to the 34th anniversary of Roe v. Wade, commenting, “It’s sad to say we are still fighting for the right to choose abortion.”

Kogut, the Executive Director of NARAL Pro-Choice Massachusetts, outlined her organization’s goals, representing them as the current focus of the pro-choice movement. She pointed to a need for activism to balance recent changes on the Supreme Court bench, particularly the protection of access to abortion and reproductive health services, the promotion of prevention policies, and a need to counter the continued teaching of abstinence-only educational programs in Massachusetts schools.

After Kogut’s introduction, Smith began her speech, entitled “The Federal Abortion Ban: What Will It Do to Roe?” She gave a brief history of legal developments around the abortion issues, including Planned Parenthood v. Casey, a fifteen year-old case which was the last opportunity to overturn Roe. That decision resulted in a weakening of the standard of the right to choose, even while affirming many of the Roe findings.

In the wake of this, Smith said, there were major changes in the methods and goals of the pro-life movement. Demonstrators began using violent tactics, killing a number of abortion providers and obstructing access to abortion clinics. Further, they began to focus upon the ban of “partial-birth abortions.”

According to Smith, this raises the ultimate issue, which is “not whether you can get an abortion, but whether you can get the safest abortion for you.”

Smith described much of the confusion surrounding partial-birth abortions, which she says is a legal and statutory term, rather than a medical one, and one that means many different things to many different people. Even providers do not have a concrete definition of the procedure.

“[Pro-life activists] would say doctors are killing babies inches from life, during the course of delivery,” Smith said. “It makes it seem like women in the 9th month of pregnancy began labor and then decided midway ‘Could you just kill it instead?'”

“There are no abortions taking place that way,” Smith continued.

As abortion rights advocates got caught up in this battle over partial birth abortions, their lawyers began bringing suits to challenge such statutes, initially winning most of them on the basis of vagueness and the lack of a health exception for circumstances when a partial birth procedure would be healthiest for the woman.

Smith said that the 2000 election of an “anti-abortion Congress, and an anti-abortion President” directly led to the 2003 passage of a Congressional statute against partial birth abortions. This caused much frustration throughout the reproductive rights community, which was astonished that a law that seemingly mirrored one already struck down in 2000 could be upheld.

When Smith mentioned former Senator Rick Santorum’s hand in the passage of this bill, the audience broke into applause, clearly cheering Santorum’s failed 2006 bid for a third term. Santorum got around the legal precedent, Smith said, by claiming that this law did not require a health exception, and therefore fell outside the scope of earlier decisions.

Most recently, Smith argued Gonzales v. Carhart before the Supreme Court, her focus on Kennedy as the deciding vote.

“I decided to live and breathe Justice Kennedy,” she said, using his own writings on the meaning of life and one’s ability to determine one’s own existence. “I send my vibes out to Kennedy, ‘You can’t live with yourself and do this. There are too many health issues here. You can’t open the door to this kind of interference with women’s health.'”

Smith saw Kennedy’s mistakes as ones of factual nature. “It was clear that he really didn’t believe there was a women’s health issue involved, so I knew we had to convince Justice Kennedy that there were some health issues involved. The legal issues are interesting to lawyers but they aren’t going to win me the case, unless he understands the health issues.”

In doing so, Smith’s case became more a medical seminar than an oral argument.

“They need to understand the medicine,” she said. “They could figure out the law themselves.”

The other justices also clearly understand who carries the deciding vote, with Breyer and Roberts fighting over Kennedy.

“I am not sure who is going to win that battle,” Smith said. “Each of them were asking questions that were clearly designed to convince Kennedy of one thing or the other.”

“What is my prediction?” she continued. “This depends on my pessimistic or optimistic mood. They are trying right now to write a very narrow opinion that says this law can be interpreted narrowly. It’s a save face situation. Perhaps they are trying to do something they can live with and sleep with themselves at night.”

Before opening the floor for a question and answer session, Smith closed her prepared remarks by quoting from Lord Alfred Tennyson’s poem, “The Lotus Eaters”: “‘Courage!’ he said, and pointed toward the land/This mounting wave will roll us shoreward soon.'” Smith likened the push and re-balancing of American politics, saying, “The thing that keeps me optimistic is that the waves in American politics push us, if not back to center, then to the shore on which we want to rest.”

The event was co-sponsored by HLS Democrats, Students for Choice and the HLS chapters of the ACLU and the American Constitution Society.

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