Doctors in Wisconsin stopped performing abortions on Thursday when Judge John Shabaz of the Federal District Court refused to issue a temporary restraining order against the state's newly enacted "partial birth" abortion ban. The doctors quickly concluded that performing any type of abortion in Wisconsin would subject them to prosecution and possible life imprisonment under that law. After all, the point of this kind of partial-birth ban is to end access to abortion in general.
The ban's proponents cloak their strategy by directing attention to a rare medical procedure used in late-term abortions called "intact dilation and extraction." But the actual language of the law says nothing about that particular procedure, nor does it say anything about late-term abortions. The wording, broad enough to cover the most common procedures, prohibits any abortion in which a doctor "partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child and then completes the delivery of the child." "Child" is defined as "a human being from the time of fertilization" until birth. That description could apply to any first or second trimester abortion in which fetal tissue is expelled from the uterus into the vagina.
Such a ban on abortions prior to fetal viability is unconstitutional under Roe v. Wade. The statute also allows no exception to protect the woman's health, which is required under Roe for bans that would apply to abortions after fetal viability. This law is a direct assault on the right to choose abortion as a private medical decision, and Wisconsin is not alone. Some 28 states have enacted laws with nearly identical language. Only two have even bothered to restrict the ban to post-viability abortions. Judges in many states have blocked these copy-cat statutes because they are clearly unconstitutional. The Federal partial-birth bill, which has been vetoed twice by President Clinton, is expected to come up for a veto override vote later this year.
Judge Shabaz, in unjustly denying the request to block the law temporarily, nonetheless wrote that the opponents of the ban seem likely to prevail on the merits when the case is heard in June. But in the meantime, women in Wisconsin will be denied timely medical care. The situation is glaring proof of the true nature of the partial-birth strategy.
Copyright © 1998 by The New York Times Company. Reprinted by permission.
District Court Refuses to Block Wisconsin "Partial-Birth" Ban
On May 13, U.S. District Court Judge John C. Shabaz declined to issue a temporary restraining order to block enforcement of Wisconsin's AB 220, a ban on "partial-birth abortion." With no exception to protect the health of the mother, AB 220 is one of the harshest bans in the nation. Signed into law on April 29 by anti-choice Governor Tommy Thompson (R), the measure mandates a life sentence for a physician who performs a "partial-birth abortion" (see RFN VI/10).
In his ruling, Judge Shabaz did not find the "irreparable harm" necessary to issue a TRO; instead he indicated the potential presence of harm "to the parents of those perhaps several hundred living post-first-trimester children who may be unnecessarily killed between now and the time of the decision on preliminary injunction."
Upon news of the denial, doctors in Wisconsin stopped performing all abortions because of the new law's vague language. It was only after realizing that the law would remain in effect for a while that some doctors resumed performance of some abortions.
Immediately following the court's denial, plaintiffs appealed the District Court decision to the U.S. Court of Appeals for the Seventh Circuit in Chicago. On May 19, that court dismissed the appeal, ruling that it did not have appropriate jurisdiction. The case was returned to the District Court, with oral arguments held on June 4, and a decision expected sometime after June 10.
Plaintiffs in Planned Parenthood of Wisconsin v. Doyle are represented by the Center for Reproductive Rights' Simon Heller and Bonnie Scott Jones, Roger Evans of Planned Parenthood Federation of America, and Michael Schaalman and Kelly Hardy of the Milwaukee law firm Quarles & Brady.
Debate Continues on Child Custody Protection Act
The Senate Judiciary Committee and the House Judiciary Subcommittee on the Constitution were the recent site of emotional testimony regarding SB 1645 and HR 3682 - the Child Custody Protection Act. The bills, sponsored by Sen. Spencer Abraham (R-MI) and Rep. Ileana Ros-Lehtinen (R-FL), would make it a crime for someone other than a pregnant girl's parent or guardian to transport her across state lines to seek an abortion if she has not complied with the parental involvement law in her state of residence.
Renee Jenkins, Chair of the Department of Pediatrics and Child Health at Howard University's College of Medicine, testified against the proposed legislation before the Senate committee. Calling the measure "a harmful and potentially dangerous bill," Jenkins reminded legislators that most adolescents will seek medical care with their parent or parents' knowledge. However, for those who don't, "[t]he guarantee of confidentiality and the adolescent's awareness of this guarantee are both essential in helping adolescents to seek health care."
Karen and Bill Bell, whose 17-year-old daughter Becky died from complications related to a back-alley abortion, also testified. The Bells explained that Becky, who was unable to comply with her state's parental involvement law, might be alive today if she had been able to arrange transportation to another state where she could have gotten a safe abortion.
In the House subcommittee, Rev. Katherine Ragsdale, an Episcopal priest and the Chair of the Board of the Religious Coalition for Reproductive Choice joined Rep. Nita Lowey (D-NY) and Rep. Sheila Jackson Lee (D-TX) in opposing HR 3682. Rev. Ragsdale urged opposition to the measure based on "compassion for those young people who cannot, for reasons of their safety, comply with its provisions." She cautioned the assembled: "you don't want your daughter, or grand-daughter, or niece to die just because she couldn't face her parents and you had outlawed all her other options."
SB 1645 and HR 3682 can now be heard, amended and voted on by their respective committees.
Editor's Note
Unless otherwise noted, all bills addressing "partial-birth abortion" define the procedure as "partially vaginally delivering a living fetus before killing the fetus and completing the delivery."
Alaska Abortion Funding Ban and Contraceptive Coverage Bills Advance
On May 12, the Senate and House both approved HB 325, the state budget, by 13-1 and 29-11, respectively. The budget provides zero funding for the medical assistance program for low-income Alaskans (General Relief Medical or GRM) because it covers abortion services (see RFN VII/4). HB 325 thus eliminates Alaska's current policy of funding abortions for low-income women, including Medicaid recipients, for health reasons or in cases of incest and rape.
SJR 35, a proposed amendment to the Alaska Constitution allowing individuals and "public or private" facilities, including health care facilities, to refuse to "participate in, or provide accommodation for the performance of, an abortion," was defeated in the House by 26-14 on May 11; it passed the Senate last month (see RFN VII/4).
HB 350 requires health care insurers to provide coverage for contraceptives and "related health care," unless the policy is issued to an individual, a "qualified organization with a religious based objection," or a "fraternal benefit society." HB 350 passed the House 25-13 on May 4. The Legislature adjourned on May 12.
Arizona: Informed Consent Bill Fails
HB 2072 requires a woman to receive biased information from a physician and wait a set amount of time before obtaining an abortion: 24 hours if the information is received orally and in person and 72 hours if it's received by phone and certified mail. The measure has an exception in the case of a medical emergency. On May 18, the House disapproved the Senate's version of HB 2072 (see RFN VII/4) by 24-30; a motion to reconsider the vote passed, but the House took no action prior to adjournment on May 22.
California: "Partial-Birth" Ban Still Pending in Assembly
A motion to bring AB 2389 to the Assembly floor failed 33-28 on May 4; the bill remains in the Assembly Health Committee. AB 2389 bans "partial-birth abortions" unless a woman's life is at risk.
Florida: Restrictive Measures Advance
On May 20, pro-choice Governor Lawton Chiles (D) vetoed SB 1430, which authorized the production and sale of license plates reading "Choose Life;" proceeds would have been distributed to nongovernmental, not-for-profit agencies with services limited to counseling and meeting the physical needs of pregnant women who are "committed to placing their children for adoption." SB 1430 passed the Senate 28-12 on April 28 and passed the House 77-41 the next day.
HB 3883 expands the definition of "harm" to a child's health or welfare for purposes of allowing social service intervention. The new definition would include the use by the mother of a "controlled substance or alcohol during pregnancy when the child, at birth, is demonstrably adversely affected by such usage." HB 3883 passed the House 93-19 on April 27 and passed the Senate 38-0 on April 30; it was not reconsidered in the House prior to adjournment.
Hawaii: "Partial-Birth" Ban Defeated
On April 30, HB 2973, which passed the House in March (see RFN VII/3), failed in the Senate by 9-16. The bill bans "partial-birth abortions" after the 19th week of pregnancy, unless a woman's life is at risk.
Illinois: Legislature Approves Abortion Funding Exceptions
HB 383 passed the House last year and passed the Senate 30-24 on May 20. The bill would reinstate a restriction limiting the use of public funds to pay for abortions only when necessary to save a woman's life. Under the measure, the state would provide additional funding for abortion if the pregnancy resulted from rape or incest, but only if a court determined that such funding is required by federal law. HB 383 is intended to express the Legislature's disapproval of court rulings holding the previously enacted restriction unconstitutional. HB 383 has not been sent to the governor yet.
Iowa: Reproductive Health Measure Enacted
On April 22, the House enacted HR 104 by voice vote. The measure expresses the intent of the House of Representatives to form an advisory committee to enable reproductive health interest groups to cooperatively develop recommendations on reducing the frequency of abortions and unwanted pregnancies in Iowa.
Kansas: Changes to Abortion Ban Fail
The Legislature rejected two attempts to amend the state's late-term abortion ban by adding a very limited health exception. SB 234, which passed the legislature last year (see RFN VI/7) had its abortion-related language deleted in conference committee. And SB 545 passed the Senate 37-3 on February 23 but was stricken from the House calendar on May 3.
Michigan: Senate Passes Reproductive Health Care Bills
Three bills allowing an insured woman access to an ob/gyn without prior approval from her health insurer passed the Senate 37-0 and are pending in the House Health Policy Committee. SB 151 passed on May 13 and refers to insurers; SB 152, which refers to health care corporations, and SB 153, which refers to health maintenance organizations, were approved on May 14.
Missouri: Abortion Restrictions Advance
On April 22, the House voted 87-69 to pass HB 1051, which permits the use of monies from the state legal expense fund to be used for payment of claims against any physician, nurse, or other health care professional providing treatment at a city or county health center without compensation, as long as such treatment does not include the performance of an abortion. HB 1051 is pending in the Senate.
HB 1601 prohibits physicians assistants from performing abortions. In the Senate the bill was substituted for HB 1094, which passed the House on March 12 (see RFN VII/4); the measure then passed the Senate on May 11, 22-10.
Nebraska: Governor Signs Abortion Funding Bans
Anti-choice Governor Ben Nelson (D) recently signed two bills restricting the use of state funds for abortion; both bills went into effect immediately. On March 31, he signed LB 1108, which prohibits the use of funds from the Health Aid program for Native Americans for any abortion services; it passed the Legislature 34-2 on March 25. On April 14, the Governor signed LB 1070, which prohibits the use of funds from the child health insurance program for abortion services, counseling, or referral; the measure passed the Legislature 42-3 on April 9.
New York: Contraceptive Coverage Bill Advances, "Partial-Birth" Ban Fails
On May 18, AB 432 passed the Assembly by 120-21. The bill requires insurance policies and contracts that provide coverage for prescription drugs to cover contraceptives prescribed by an authorized health care provider. AB 432 is currently pending in the Senate Rules Committee.
The Assembly approved AB 2450 on May 13 by 99-34; the bill amends existing law by classifying the physical obstruction or the blocking of the ingress to or egress from a health care facility as an aggravated assault. AB 2450, which is pending in the Senate Codes Committee, provides for temporary restraining orders, civil rights causes of action for injunctive and other relief, and clarifies the judiciary's power to create buffer zones.
On April 8, a motion to bring AB 8875 to the Assembly floor was defeated narrowly by 71-73; the bill is being held in the Assembly Health Committee, and will probably die. AB 8875 bans "partial-birth abortion" unless a woman's life is endangered by a physical disorder, illness or injury.
Pennsylvania: House Passes Conscience Clause Bills
House members recently voted 198-0 to pass two bills regulating managed care programs. On April 22, HB 977 was approved and is now pending in the Senate Public Health and Welfare Committee. HB 977 provides a conscience clause that shields religiously oriented health plans from penalty or withdrawal of state approval if they refuse to provide a particular form of health care based on moral or religious objections. On May 6, SB 100 was approved with amendments and is pending in the Senate; it originally passed the Senate 48-0 on March 16. SB 100 provides protection similar to HB 977, but also has an anti-gag rule provision and allows women to receive ob/gyn care without a referral from a primary care physician.
Rhode Island: Amendment to "Partial-Birth" Ban Statute Advances
HB 7469 amends the state's existing ban on "partial-birth abortion" (see RFN VI/13, VI/12) by deleting the word "partially" from "partially vaginally delivers a living human fetus;" defining the latter phrase to mean "deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the person knows will kill the infant, and kills the infant;" and requires that in order to violate the law the physician act "deliberately and intentionally" instead of "knowing[ly] and reckless[ly]" as under current law. On April 28, HB 7469 passed the House 58-26; it is now pending in the Senate Judiciary Committee.
South Carolina: Senate Approves Parental Involvement Bill
HB 3760 passed the Senate by voice vote on April 29. The bill requires unmarried pregnant women under 18 to attend a course on pregnancy prevention, which would include instruction on birth control methods and sexually transmitted diseases and emphasize abstinence. If birth control devices are given to a minor in connection with the course, her parents must be notified. Under the bill, funds may not be used for abortions or for transportation to or from abortion facilities. HB 3760 is pending in the House.
Wisconsin: Fetal Rights Bills Approved
The legislature approved two fetal rights bills during a special session, neither of which has been sent to the governor. AB 221 passed the Assembly 75-21 on June 10, 1997, and passed the Senate 22-10 with amendments on May 1; three days later, the Assembly adopted the Senate's changes by voice vote. AB 221 expands the state's criminal code to permit prosecution for conduct causing the death or injury of an unborn child. The bill defines unborn child as "any individual of the human species from fertilization until birth that is gestating inside a woman;" and contains exceptions for the conduct of a pregnant woman, induced abortion, and other medical procedures.
AB 463, which also passed the Assembly last year (see RFN VI/19), was approved by Senate 20-12 with amendments on May 1; the Assembly concurred 97-0 with the Senate's changes on May 5. AB 463 permits the involuntary commitment of pregnant women who exhibit "habitual lack of self-control" with alcohol or drugs.
