Roe at 41: Abortion, Buffer Zones & Unintended Consequences

PrologueAdded 1.22.14

As we mark the 41st anniversary of Roe v. Wade, a significant amount of court activity has taken place since my most recent post on the subject last summer (July 2013):  From the L.A. Times (1.13.14):  “Without comment, the justices [of the Supreme Court] turned down Arizona’s appeal of a lower-court ruling that blocked a law that would have limited legal abortions to 20 weeks. Last year, the U.S. 9th Circuit Court of Appeals blocked the law from taking effect on grounds that it conflicted with Roe vs. Wade. … It is the third setback for abortion opponents in this court term. The justices also turned down Oklahoma’s defense of two antiabortion measures. One would have prohibited the use of one drug that is used to induce an abortion in the first weeks of a pregnancy. A second would have required costly ultrasound tests for women seeking an abortion.”

And the beat goes on.  I was in the Court last week for the argument of McCullen v. Coakley, a Massachusetts case re:  the appropriate size for a buffer zone, the area around a repro. health clinic that must be kept clear to enable people to enter and leave without interference.  There was a lot of backing and forthing re: the size of the buffer zone, which is currently 35′.  There was also a significant discussion re:  the free speech rights of pro-life advocates and how they were not shouting protestors and just wished to speak quietly to the women entering the building.  The thing they missed was this:  the places where women go to get abortions performed are not abortion clinics, per se … They are typically Planned Parenthood clinics that provide abortions among a myriad of other services.  According to Planned Parenthood themselves, just 3% of the health services they provide are abortion services.  Meaning that the bulk of the services they provide AND the bulk of the people seeking services from that clinic are not abortion-related.  Is it only people like me who are are lucky enough to have private health insurance who deserve not to be accosted or intercepted as we seek services that, as a statistical matter, are unlikely to be the ones the accosters — the Supreme Court arguments revealed that often the skirmishes that take place at the clinics involve both pro-choice and pro-life folks, alike — are accosting about?  Curiously, there is a major yet hidden class issue afoot.  By its reckoning, Planned Parenthood serves a population 78% of which is comprised of people with incomes at or below 150 percent of the federal poverty level.  I hope, even as I fear it’s true, that women don’t actively avoid seeking routine and preventative care because they don’t want to run a gauntlet that’s completely unrelated to the reason they’re there.  They deserve protection too, don’t you think?



Is it just me, or does this political cartoon capture a very large slice of what or who has been dominating the discussion in our capitols — state and federal — and what’s been making us crazy enough to take to the streets, lately?  I had intended to talk about both guns and abortion in this post, but it seems like every day for the last several weeks, something new has cropped on the repro. rights front.  So part 1 will talk about abortion, and raise some limited issues re:  guns, and in a forthcoming part 2, I will wrap up by looking more closely at what’s happened (or not) on the gun front since the Sandy Hook slayings took place last December.

It seems odd, the country having just celebrated its 237th birthday, that we find ourselves in much the same place that we were nearly 2 1/2 centuries ago:  struggling over how to define and protect  life, liberty and the pursuit of happiness.   Less surprising, perhaps, is that the fact that neither of the two issues that have spurred the greatest recent political activities –guns and abortion — are explicitly addressed in our Constitution.

The second amendment is focused on citizen ownership of guns only insofar as it relates to the need for armed citizen militias comprised  to defend the state, and not connected to individual ownership writ large.  Privacy rights in the Constitution found their way onto the scene in the late 19th century when Justice Brandeis spoke of “the right to be left alone.”  Personal privacy issues involving family matters, contraception and reproductive issues had their genesis in a series of cases that began in the 1960’s with Griswold v. Connecticut.   

In recent years, the federal level has been relatively quiet on the abortion/guns issues.  Not because the U.S. Senate didn’t try to pass a gun safety law earlier this year, and not because the House didn’t pass an abortion restriction bill last month.  The problem is that with different parties in control of the two houses of Congress, neither house has been able to pass anything that the other side would be willing to take up, if they’ve passed anything at all.  So, the states have become a hotbed of activity, particularly where one party controls both the statehouse and the governor’s mansion.


Salon magazine has just written an article that describes the ten worst states for women to live in terms of abortion restrictions.  Of those ten states, nine have passed new laws this year to supplement already existing restrictions.  In the 10th state, Oklahoma — already home to a ban on abortions at 20 weeks, requirements of pre-abortion counseling and a required 24 hour waiting period — the newest challenge, preventing abortions induced by medicine as against surgery, has been held up  in litigation for the last two years.  Among the remaining nine, a number have similar goals whether  forcing the closure of clinics by requiring that clinic doctors have admitting privileges at nearby hospitals and/or that clinics have transfer privileges, or regulating the facilities out of existence by requiring costly, though unnecessary changes. North Dakota’s new laws merit special mention as the most sweeping and egregious.  Of the several bills signed into law this year, one criminalizes abortions performed after a fetal heartbeat is detected, as early as six weeks.  Also in the queue is a ballot initiative which will ask voters to decide whether life begins at conception.  And finally, adding to the ten states described in the article, we have Wisconsin.  On July 5th, Wisconsin’s governor signed into law a bill that required that clinic physicians having admitting privileges at a nearby hospital and that also required that women seeking abortions have an ultrasound before having one.   Texas made the list of ten, and has kicked off its second special session with the Texas House passing its restrictive bill on July 10.

Unlike the guns issue, which came back onto the scene 9 months ago after a long period of lying dormant, the abortion issue is not a new one.  More interestingly, even some conservatives think that this latest push against abortion has gone too far on some levels.  Here’s an excerpt of what one Republican state legislator from North Dakota thinks about their latest set of restrictions:  “We have stepped over the line,” said state Rep. Kathy Hawken (R-Fargo) … “They could fund my childcare bill with what we’re going to spend on lawsuits,” she said. … Hawken, a self-proclaimed pro-life Republican, says her colleagues have also rejected measures to increase prenatal care for minors and childcare for single moms, leaving her to question the motives behind the recent legislative push.”  And the governor of North Carolina — listed in the article re:  the ten worst states — has indicated that he will not sign the pending bill that further restricts women’s access to abortion.   Whether he feels like the current bill imposes too many regulations without adequate study, or as this article suggests, he is trying to stay out of the social conservative v. pro-choice fray, the governor’s reaction is striking.  Republicans are pretty noteworthy for their party discipline, and not given to questioning the proverbial party line, particularly in front of the press.

Maybe Rep. Hawken is right to question … perhaps,  it’s a variation on the issues raised by the above cartoon:  whether some of the folks interested in these issues aren’t so much personally committed to the issue as they are politically committed.   Take the example  of Georgia and abortion.  With Republican U.S. Senator Saxby Chambliss retiring, the four candidates vying to replace him are battling for the endorsement of groups like The National Right to Life Committee and Georgia Right to Life.  Two of the three U.S. House of Representative candidates in the race voted for the House bill I wrote about last month, and a third candidate a former GA secretary of state expressed support for it as well.   The 4th candidate, the other House member,  opposed the bill because it had exceptions for rape and incest.  His opposition appears to have netted him the endorsement of Georgia Right to Life, and brought with it, the potential to pull the Georgia race farther to the right.  Races like this one give rise to a problematic level of political paralysis.  I met with a staffer last week who explained why his Republican boss was unlikely to take a public position on the issue we were talking about.  His boss was in a district where coming out one way or the other on the issue could cause someone to challenge his seat and the challenge would most likely come from the right.  Surely we’d prefer working with his boss to a “tea partier,” who would be the likely successor if he boss took a public position on the bill we discussed.

Unfortunately, what we appear to be reaping at the federal level — in the process, giving rise to a Congress that is on track to be the least productive in history — are the fruits of congressional redistricting.  As the New York Times pointed out last year, “since redistricting gives many members of Congress less competitive, more politically homogeneous districts, it is often cited as one of the factors exacerbating political polarization.”

A quick look at the chart that accompanied the NYT article tells the redistricting tale:  in states where Republicans were in charge of the redistricting process, they won an outsized number of seats relative to their total vote share.   The same was true for Democrats in states where they controlled the redistricting process.   The rub, however, is this:  Republicans controlled the redistricting process in four times as many states as Democrats did. Meh?  Check out the graph, and read on, please.

From NYT – 12.14.12: Parties Redraw the House Vote

The moral of the chart is pretty straightforward:  when states are redistricted by commissions (presumably bi-partisan ones),  R’s and D’s are elected in a manner and number that’s pretty close to the percentage of votes each party receives. Not so for partisan redistricting processes.  An additional factor (and subject of a future post) is the impact of the Supreme Court’s most recent voting rights decision.

The chart’s cautionary tale for Republicans, who controlled a much larger proportion of the redistricting in 2012,  is  “when the gods want to punish you, they answer your prayers.”  While R’s were able to draw a goodly number of safe districts, and thereby strengthen their goal of holding onto the majority in the House for several election cycles, the results seem decidedly mixed where R. incumbents are concerned, and disastrous where the prospects for a productive Congress that works toward bi-partisan ends are concerned.  In the Georgia senate race I mentioned previously, the R. field is being pulled to the right, which in a state with a rising minority population, could open the door for a moderate D. challenger.  Worse yet, if you’re perceived to be an endangered species known as a moderate Republican,  is the fact that groups like the Club for Growth are already targeting for defeat next year, R’s in safe districts who they don’t consider to be conservative enough.   See who they’ve pinned a bull’s eye on here.   Here’s the thing:  I have my own increasingly short list of moderate R’s on the House side, and the ones listed on the website as being targeted, AREN’T ON IT.  Norm Ornstein called one of the folks on the list “very conservative.”  So what we’re looking at is folks being singled out and subjected to some ideological litmus test for trying to carrying out the work of “we, the people,” by being willing to “compromise to get something done.”

And we thought we knew something about the unbearable unendingness of gridlock.  Fasten your seatbelts folks … and run, do not walk, toward any sane people or institutions working on redistricting reform.  Try these folks, and these as well, for starters.   To learn more about the recent Voting Rights Act decision by the Supreme Court, start here.  It’s the only way to bring sanity back to our legislatures and put the gynoticians out of business once, and for all!


Footnote added on July 13th.

As ever, the relentless tide of those who would roll back our freedoms continues pushing forward.  Since I published this blog on Thursday, the North Carolina House has amended a Senate abortion bill enough so that the governor has said he would sign it.  As for Texas, crazy just keeps getting crazier:  a pro-choice woman speaking at a hearing on the Texas Senate bill was cut off and dragged from the chamber.  Texas:  where they shut you down for telling the truth.  Here are some excerpts of what she didn’t get to say to the majority R Texas Senate:  “What I would say to all of the Republicans on the Senate Health & Human Services Committee is that I understand why you are so careless with our health care,” Slamen said. “You see, all of your constituency lies east of I-35, where the five clinics remaining after that bill gets passed will be. None of your constituents are west of I-35, so I guess their lives and families just don’t matter to you.”  and more importantly, “Women with two and three jobs, the 20 percent of women who might be living in the rural communities of Texas who can’t get to the capitol, caregivers, they can’t get to the hearings and stand up for their rights, and it’s obvious that all the Republicans on that committee don’t care about the right to their health care either. So someone had to say something.”

And finally because crazy can always get crazier in Texas, comes this news about the goings on at the Texas Statehouse this week:  Although the process was eventually reversed, tampons and maxi pads were being confiscated from those entering the Texas capitol to watch the abortion debated.  Concealed weapons, however, were being allowed in, as per usual.   Late last night, the Texas Senate enacted the bill that was derailed by Sen. Wendy Davis’ filibuster in the previous special session.  Expect it to be challenged in court by Planned Parenthood and others.  Reflect on what N. Dakota Rep. Hawken raises above.  How many truly pro-life bills:  ones focused on childcare, and early education and a living wage for a start, could be funded with the money being used to defend these unconstitutional attempts to restrict women’s choices?


What the ???

Cheers:  To the protesters of North Carolina who, in objecting to the rightward and downward slide of their legislators, have established “Moral Mondays,” where they head to the state capitol and protest.  Over 700 have been arrested.  For some insight into what else has been happening there beyond abortion, check out this NYT editorial.

Jeers:  After its failed bid to pass a farm bill last month — I talked about that here — the House is bringing the bill back for a vote today.  The problem is that they have severed the provisions relating to the SNAP Program, and are addressing only the farm-related provisions leaving the SNAP Program vulnerable to further attacks from the party that views providing food assistance to people, many of whom are working, as a problem.

Cheers/Jeers:  Kudos to the D.C. City Council for standing up against threats from Walmart to pull out of an agreement to build 3 stores in the city if the Council passed a bill requiring that Walmart pay its employees a living wage.   The bill now awaits action by the mayor.  I mention immediately above that a significant number of SNAP recipients are working.  Walmart has an increasingly poor reputation for not paying its employees enough or scheduling them to work enough hours to qualify them for company benefits.  Many of these employees work, yet rely on state and/or federal benefits to supplement their paychecks. Walmrt is without a doubt, without shame.


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