Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P4 pot

clinic personnel from providing any informa- tion 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 appro- priate method of planning and therefore does not counsel or refer for ab ortion.” This regulation became known to its detractors as the GAG RULE. The regulations also prohibited Title X- funded 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 plain- tiffs—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 Blackmu n, author of the Roe major- ity opinion, dissented, arguing that the regula- tions, 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 memo- randum 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 nondi- rective 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 lobby- ing 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 Parent- hood, a family planning organization, initiate d 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. How- ever, 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 18 ABORTION 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). Because 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 Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006), the Court revie wed another parental notification statute that did not contain an exception to allow a minor to obtain an abortion without notice to her parent when necessary to preserve the minor’s health. The Court remanded the case to the lower federal courts to determine whether the statute as a whole had to be stricken or whether parts of the statute could remain intact. 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 psycho- logical effects” from the abortion; the particular medical risks associated with the abortion method to be employed; the probable gesta- tional age of the fetus; the “fact that medical assistance benefits may be available” for prena- tal 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 admi nistration’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 legis- latures free to permit or prohibit abortion as they wish. However, by a 5–4 vote the Court found all the provisions of Pennsylvania’s Abortion Control Act to be unconstitutional, thereby reaffirming its previous decisions up- holding 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 Penn sylva- nia 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 deci- sion since Roe, concerned amendments to the same Pennsylvania Abortion Control Act of 1982. The amendments prohibited abortions after 24 weeks except to save the woman’s life or to prevent substa ntial and irreversible im- pairment of her bodily functions; required a woman to wait 24 hours after giving her informed consent before receiving an abortion; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABORTION 19 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 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, Ken- nedy, 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 Constitu- tion that there is a realm of personal liberty which the government may not enter.” The Court also in voked 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 quotation 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 w oman to choose to terminate her pregnancy was written into the U.S. Constitution and because U.S. society in the past permitted laws that prohib- ited abortion. They also gave different argu- ments 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 no tion 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 unconstitu- tional because it imposed an undue burden on women seekin g an abortion before fetal viabili- ty. 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 Southeas tern Pennsylvania v. Casey, the battle over abortion moved beyond the question of whether Roe v. Wade would be overturned to focus on w hat conditions truly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 20 ABORTION constitute an American woman’s right to safe, legal abortion. After a number of violent incidents 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, by contrast, 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. During 1993 and 1994, five abortion providers were killed by anti-abortion militants. Although such kill- ings undermined public supp ort fo r the anti- abortion movement, they also damaged the morale of those w ho 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 anti- abortion 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 anti- abortion 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 obstruc- tion, intentionally injures, intimidates, or inter- feres with any person obtainin g 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 devel- oped that induce abortion without a surgical procedure. The best known of these is RU-486, or mifepristone, developed by the French pharmaceutical company Roussel Uclaf. The drug blocks the action of the female hormone progesterone, preventing the impla ntation 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. In the early 2000s, the drug was 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 administrat ion pressured Roussel Uclaf to license the drug for sale to the United States. Population Council, a New York-based NON- PROFIT organization, 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, more than one hundred thou- sand women in the United States chose mife- pristone as an abortion option. Abortion pro- testers quickly rallied and began to PETITION the FDA to RESCIND its 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 i n Roe v. Wade, anti- abortion groups were PICKETING and protesting GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABORTION 21 at family planning clinics that perform abor- tions. 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. Anti-abortion groups have labeled their activities as direct actions or rescues, believing that they are saving unborn children from murder, and their tactics have grown increas- ingly 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 labels as “Baby killer!” Besides demonstrating, anti-abortion groups have sponsored pregnancy crisis centers, where they counsel pregnant women, with the inten- tion of persuading them to carry their pregnan- cies to term. By the mid-1980s, activists had created national organizations and networks that promoted civil disobedience to stop the practice of abortion. One well-known organiza- tion 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 demonstra- tors—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 prohibit- ing pickets “focused on, and taki ng 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 used 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 6–3to 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 debat e surrounding abortion ever since the 1973 Roe v. Wade decis ion that guaranteed a woman’s limited right to an abortion. Bombings, ARSON, and even murder have been committed by anti- abortion activists in the name of their cause. The National Abortion Federation counted more than three thousand violent or threaten- ing 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 22 ABORTION 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 later 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 w ounded 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 addres- sing 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.), introdu ced the Fre edom 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). 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, inti- midates, 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, includ- ing 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 anti- abortion 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABORTION 23 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 its 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 Three Sides to the Abortion Debate T o 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 two fundamental questions and two conflicting rights 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 differed on the answers to these questions, and the interpretation of these rights, became more intense and at times even violent. The question of access to abortion clinic property—whether to obtain clinic ser- vices or to protest them—became a pressing issue. Three major points of view dominate the abortion debate: the pro-choice, or abortion rights, view; the moderate pro- life, 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 plan- ning, and medical organizations, and other groups of concerned citizens and professionals. The groups include the NATIONAL ORGANIZATION FOR WOMEN (NOW), the Planned Parenthood Feder- ation 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. Accord- ing 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. Pro-choice 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 and who in 1995 switched sides on the abortion issue, spoke for the pro-choice position in a 1989 speech before a women’s rally: Prior to Roe v. Wade, approxi- mately one million women had illegal abortions each year. Ap- proximately 5,000 of these wom- en 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 pro- mote abortion. I promote per- sonal choice. If we return to the antique methods of dealing with un- wanted 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. Pro-choice groups remain commit- ted to the CONSTITUTIONAL right to PRIVACY defined in Roe. They view anti-abortion 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. Whereas all persons who describe themselves as pro-choice 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 24 ABORTION 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 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 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 from the moment of conception or in the embry- onic stage. 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 in their manner of supporting changes in abortion laws and regulations differ from militants. Mod- erates emphasize using existing legal channels to bring about change. 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, represent the militant views. Terry is Operation Rescue’s founder and leading figure; he participated in his first anti- abortion protest in 1984 and has served time in prison because of his demonstra- tions. As an evangelical Protestant Chris- tian, Terry sees abortion as the work of the devil: “I believe that there is a devil, and here’sSatan’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, physical- ly, emotionally, sexually.” Terry opposes abortion in all cases. His group’smain tactics, he is quoted as saying, include “rescue missions, boycotts and protests.” A minority of the militant anti- abortion activists sanctions 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 Net- work, 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 in- volved in a cultural civil war.” When Kansas obstetrician George Tiller was killed in May 2009, Terry called the doctor a “mass-murderer” and com- pared him to a Nazi war criminal. Scheidler and his group won a major victory in 2003 when the U.S. Supreme Court ruled 8–1 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]). It is possible the extremist position may have done more to hurt than to help the anti-abortion cause. The publi- cized violence of the movement, in combination with the new prosecutorial powers granted in FACE, served to ALIENATE many of the more moderate individuals in pro-life groups, reducing the membership of those groups to a militant core and making those outside the groups less sympathetic to their cause. However, extremists have contrib- uted to a climate in which access to abortion services has steadily become more difficult. The number of abortion providers declined by 2 percent between 2000 and 2005. By 2008, 87 percent of all U.S. counties lacked an abortion provider. 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 commit- ted extremists on both ends were being replaced with a new and more sophisti- cated national consensus concerning the acceptable limits of abortion rights. The Partial Birth Abortion Ban Act was enacted in 2003 and upheld by the Supreme Court in Gonzales v. Carhart (550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 [2007]). FURTHER READING Risen, James, and Judy L. Thomas. 1998. Wrath of Angels: The American Abortion War. New York: Basic Books. CROSS REFERENCES Civil Rights Acts; Schools and School Districts. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABORTION 25 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 healthcare 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 anti-abortion 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, 18 U.S.C.A. § 1951(b)(2), expanded the common-law definition of EXTORTION to include acts by private individuals. For purposes of the Hobbs Act requirement that property must be obtained for extortion to occur, the word obtain means to gain possession of. The extortion provision of the Hobbs Act requires not only the depriva- tion, 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 rights had been “extorted” from them by abortion protestors. The Supreme Court held that by interfer ing with, disrupting, and in some instances “shut- ting down” clinics that performed abortions, individual and corporate organizers of anti- abortion 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 RICO predicate offense; whereas organizers may have deprived or sought to deprive organizations 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 organizations or clinics that they could exercise, transfer, or sell. The Court also ruled that an injunction obtained against the abortions pro- testers 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 Some state lawma kers have not ended their efforts to ban abortions. In 2006 the South Dakota LEGISLATURE approved a bill that would have banned most abortions. Pro-choice acti- vists immediately announced that they would challenge the law, but the issue was eventually resolved by voters in the state. When the statute became subject to the general election in 2006, voters in the state defeated the proposal by a 55 to 45 percent margin. The Supreme Court 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 up- held Montana’s statute requiring that only licensed physic ians perform abortions, ruling that physician-o nly 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 one-parent 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 29 states that bans physicians from perform- ing what doctors call dilation and extraction. It is used most commonly in the second trimester, between 20 and 24 weeks of pregnancy, when a woman suffers from a life-threatening medical GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 26 ABORTION condition or disease. In Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597 (2000), by a 5–4 vote, 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 met hods 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 sec- ond-trimester abortion methods. In early 2003 the U.S. Congress passed the Partial Birth Abortion Ban Act, Pub. L. No. 108- 105, 117 Stat. 1201, which contained a ban 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. When he did so, the Supreme Court was called upon to decide whether Stenberg applied. In Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007), the Court upheld the act, ruling that it did impose an undue burden on a woman’s right to end a pregnancy. The two newest members of the Court, Chief Justice JOHN ROBERTS and Justice SAMUEL ALITO, voted in the majority, confirming that the recent appointees had solidified the conservative base on the Court. The decision also revealed a new interest in the mother’s health and safety. 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 Commen- tary 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. 2009. Encyclopedia of Abortion in the United States. 2d ed. Jefferson, N.C.: McFarland. Perry, Michael J. 2009. Constitutional Rights, Moral Controversy, and the Supreme Court. New York: Cam- bridge University Press. 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’sRights. ABRAMS V. UNITED STATES In Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919), the U.S. Supreme Court applied the CLEAR AND PRESENT DANGER test in upholding the conviction of five anti-war protestors, who had been charged with SEDITION for distributing pamphlets criticizing President WOODROW WILSON during WORLD WAR I. However, the case is remembered more for the lone dissenting opinion written by Justice Oliver Wendell Holmes Jr., architect of the original clear-and-present-danger test just eight months earlier. Holmes’s dissent argued that FREEDOM OF SPEECH cases analyzed under the FIRST AMENDMENT to the U.S CONSTITUTION must be subjected to a heightened level of judicial scrutiny before LEGISLATION abridging free expression could be upheld, a level of scrutiny that was eventually adopted by a majority of the Court for the balance of the twentieth century. The case began on August 23, 1918, when Jacob Abrams, a Russian immigrant and a professed anarchist, was arreste d in New York City with four others. Abrams and his comrades admitted to writing, printing, and distributing two sets of leaflets, one in English and one in Yiddish, assailing President Woodrow Wilson as a “coward” and a “hypocrite” for sending troops to fight the Soviet Union during World War I. The Yiddish leaflet called for a general strike among all workers to protest against Wilson’s policy. Abrams and the other defendants were charged with violating the Sedition Act. This act made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurri- lous, or abusive” language about the form of government in the United States or language that was intended to bring that form of government “into contempt, scorn, contumely, and disrepute,” or language that was “intended to incite, provoke, and encourage resistance to the” U.S. war effort. The act also made it illegal to “willfully urge, incite, or ADVOCATE [the] curtailment” of manufacturing and production GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABRAMS V. UNITED STATES 27 . with the goal of balancing the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ABORTION 23 interests of protecting women seeking abortions with the freedom of speech interests of abortion clinic. Scheidler, 510 U.S. 249, 11 4 S. Ct. 798, 12 7 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 19 70 (18 . weeks of pregnancy, when a woman suffers from a life-threatening medical GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 26 ABORTION condition or disease. In Stenberg v. Carhart, 530 U.S. 914 , 12 0