Health Care

WomenMatter will continuously post updates on all this and other issues as we monitor the continuing philosophical and practical debates nationwide. Please check back often for updates. Past updates are available for reference on the Healthcare Archives page.

Check, Balance, and Strategize: The Political Maneuvering around Abortion

Everyone expected a legal battle to follow Bush's signing of the late term "partial-birth" abortion ban, and as it turns out, everyone was right.

Almost immediately following the signing ceremony on November 5, 2003, judges in California, New York, and Nebraska (yes, Nebraska) temporarily blocked the legislation because it may be unconstitutional.

Constitutionality and women's health

The newly-signed federal law will not withstand Supreme Court scrutiny if the Court follows its own precedent. In 2000, the Court overturned a Nebraska law that banned the abortion procedure that is labeled "partial-birth" by the anti-abortion pro-life movement. (Nebraska's state government is clearly bursting with disagreement over this issue.)

The Court declared the Nebraska law a threat to women's health. Like the new federal law, the state law did not include a health exception. This means that a doctor can never perform the procedure, even if it would protect the health of the mother. Proponents of both the state and federal bills claim that the procedure is never needed.

You check me, I'll balance you

The regulation of abortion displays our checks and balance system under bright lighting and a glass case. Members of the three branches of government have continually challenged each other on this issue. A "partial-birth" abortion bill has passed through Congress twice before, and on both occasions, the then -President, Bill Clinton, used his checks-n-balance power to veto it.

Now that the tables have turned and the President and Congress agree on this issue, the courts have become the balance. Weighing the law against the Constitution, the Supreme Court can decide that the legislative and executive branches are out of bounds.

This issue allows the Supreme Court to flex its muscle, because it is the Court that identifies the boundaries, and the legislative and executive branches must play within them.

Nomination Domination

Yet, the executive branch is especially potent when the president nominates a Supreme Court justice. Since the justices serve life terms, they shape American law and culture for decades. A president's legacy can be his (or her!) judicial nomination, so if the opportunity arises, the president is sure to nominate in his (or her!) own image.

Rumor has it that the swinging-voter Sandra Day O'Connor is itching to retire. If a pro-life justice takes her place, Roe V. Wade may vanish faster than you can say, "right to privacy." For this reason, reproductive rights are a galvanizing issue for the 2004 presidential election. Party strategists expect that fear or hope will drive their base to the polls.

But restructuring the court is not the only strategy for overturning Roe V. Wade. The New York Times reports that the pro-life movement is practicing "Incrementalism."

Add to the spell checker: Incrementalism

Take note Microsoft Word programmers: "incrementalism" is in use. The meaning in this context is fairly clear -an attempt to restrict abortion step by step, and to slowly turn public opinion against Roe v. Wade. In several bills the determination of those for whom abortion is immoral is to classify the bill as a civil rights law. The Bush administration under the aegis of Attorney General John Ashcroft has decided to fight for this bill not in the criminal division but as in civil rights --- the civil rights of the fetus as a full citizen under the law.

Even if the ban does not endure the Supreme Court test, the pro-life movement has reinvigorated the debate, for better or for worse.

For more on the abortion question, click here. To discuss this topic with other WomenMatter readers in one of our online forums, click here. You may also want to contact your representatives and let them know what you think.

Posted on: 11/10/2003

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