The U.S. Supreme Court Upholds Abortion Restrictions -- and Women Cry Foul

Newsweek, July 2, 1991
Assignment: State restrictions on abortion, upheld by the U.S. Supreme Court, promised to deny women access to the procedure. Editors wanted to know how women in the Southeast were reacting to the court's decision.

"Undue burden." For decades to come, that phrase will echo in the nation's courtrooms and legislative halls. This is how the U.S. Supreme Court has circumscribed a state's right to regulate abortion: "An undue burden exists...if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." The language is deliberately vague. "How much of a burden is an undue burden?" wonders Donna Wells, head of the Kentucky ACLU and operator of two abortion clinics. "What is substantial? What is an obstacle?"

By any definition, substantial obstacles to abortion already exist in many states. Each may not be sufficient in itself to prevent a woman from exercising her right to choose, but together they can create an entangling web of discouragement.

The most insurmountable hurdles aren't legislative, although they may be aggravated by official (in)action. First and foremost: Many women, particularly those in poor, rural regions, simply cannot afford abortions. A pregnancy terminated in the first trimester can cost anywhere from $250 in cities like Atlanta to $500 in rural Mississippi, where there are few providers (more about that below). The price skyrockets in the second trimester, sometimes to as much as $2,000. Most states refuse to permit public funds, including Medicaid, to be used for abortion. Perhaps 10 percent of women visiting Atlanta clinics -- a well-to-do patient population, compared to the rest of the South -- have insurance that will cover the procedure; fewer still are actually willing to file the claim with their employers.

"Frequently, that's why women delay abortion until the second term -- it's the money chase," says Diane Derzis, administrator of Summit Medical Center in Birmingham, Ala. "By the time they've got $250, they're into the second term when it's $500." Without access to public funds, abortion providers can do little to meet the enormous demand in low-income areas. Lynne Randall, executive director of the Feminist Women's Health Center in Atlanta, operates a "Women In Need" fund that provides assistance to poor women, "but it's just a drop in the bucket." Most of the money comes from donations and the clinic's own budget.

"It's a catch-22," says Randall. "Women want an abortion because they can't afford a baby, but they have the baby because they can't afford an abortion. It happens ten times a day. Many can't even afford a reduced fee."

Unique among Southern states, North Carolina has maintained an abortion fund for poor women since 1978. It used to provide 6,000 abortions annually, but two years ago the state legislature reduced its budget from about $1 million to slightly over $400,000. Now the fund assists only 2,300 women every year, and its income requirements are unreal. To qualify, a woman without dependents can earn no more than $4,226 annually; a family of three must bring in less than $6,826 annually. Even so, the fund usually is exhausted during the first six months of each fiscal year -- meaning that poor women who happen to get pregnant between January and July are out of luck.

Qualified doctors and facilities are in short supply nationwide, and the problem is particularly acute in the South. There are only eleven abortion clinics in Alabama, for instance, and they share five doctors. In Mississippi, where about 7,000 abortions are performed every year, there are precisely four clinics -- two of them operated by a doctor who commutes part-time from Birmingham, Ala. There are three clinics in Kentucky, in addition to three doctors willing to perform abortions in their offices; all are located in Louisville or Lexington. The situation is even worse for second-term pregnancies. Only one clinic in each of these states will handle those abortions (although hospitals may on a case-by-case basis).

Outside Atlanta, there are only three abortion clinics in the entire state of Georgia, the largest east of the Mississippi River. Of the 40,000 abortions performed statewide every year, 30,000 are done in the metro area. Which means, of course, that women have to find a way to get here. It's far more difficult that it sounds. Doctors are seldom available throughout the week, and many women don't want to tell their employers or family members why they need to make the trip. Many, especially minors, simply aren't able to travel. "We get women all the time who say they don't have access to a car," says Marjorie Pennington, director of an abortion clinic in Augusta, Ga. "That may sound ridiculous, but that's the reality for many women in rural Georgia."

Randall has seen the access problem firsthand. After her clinic's physician departed last year, she was forced to fly a doctor from Memphis to Atlanta every week for six months while she sought a replacement. "If midwives or physicians' assistants could perform abortion services, as they can in Vermont and Montana, that would ease the doctor shortage," says Randall. "Delivering a baby is ten times more dangerous than performing a first-trimester abortion."

For over a year Randall has been trying to find a site in Macon, Ga., at which to open another clinic to serve women in the middle of the state, who currently have no ready access to abortion (the facilities outside Atlanta are to the east in Augusta and Savannah, and to the west in Columbus). "Our efforts have been thwarted, though not in the legal sense," she says. "People are afraid [to lease space]. They're afraid their homes might get picketed, or their families might be harassed, or their building might get vandalized."

Harassment is not an insignificant factor these days. This morning Kim, 19, was forced to endure taunts from a half-dozen protestors as she entered an abortion clinic in Louisville, Kt. A single parent, she already has a 2 1/2-year-old son and receives no child support from the father -- who has never seen the child, though he lives nearby. She has been using the pill, she says, and was horrified to discover it had failed to prevent another pregnancy. Kim's mother gave her the money for today's abortion. "These people are yelling at me about God!" she says angrily. "They're yelling the baby doesn't have a choice and it's a life, it's murder, and all that junk. It pissed me off that they would have the nerve. This is not an easy decision, it's not one I made lightly. But I'm already a parent and I'm only 19!"

Beyond questions of access, pro-choice proponents face daunting legislative obstacles in wake of the Casey decision. Though clearly unconstitutional and unenforced, Mississippi and Alabama maintain sweeping laws on the books criminalizing abortion except to save the mother's life. More often, though, pro-life lawmakers have tried to build a wall around abortion brick by brick. The most common tact: legislation mandating parental consent or notification. Currently Georgia requires that one parent or guardian be notified; Alabama and South Carolina require that they consent to a minor's abortion. Several other Southern states have passed similar laws, only to see them declared unconstitutional because they failed to provide for judicial bypass or required consent from both parents.

By and large, clinics make little effort to verify a parent's consent or notification. In Georgia and Alabama, for instance, it's usually enough for a girl to show up at a clinic with a signed note -- as if she were going on a field trip. "These kids are bright," shrugs Derzis. "I'm sure some of them forge notes. Some of this stuff you just can't legislate." Derzis adds that about 85 percent of the minors at her clinic have parents along anyway; the other 15 percent go through judicial bypass. "Even if she's got a person with her," says Randall in Atlanta, "it's hard to prove it's not her mother."

Clinics in restrictive states may send minors elsewhere. Three weeks ago, on the advice of an older friend, a 17-year-old girl called a Cincinnati abortion clinic to schedule an appointment. Staffers told her that since Ohio is enforcing its parental consent law, she'd be better off going to a clinic in Kentucky; they even gave her the phone number. Today she is at a Louisville clinic with her boyfriend. "I don't know what my parents would do," says the girl, who asked not to be identified. "It's harder to get here, but it's my life. I thought about having the baby, but that's just not an option." The protestors outside didn't make it any easier: "They said I'm going hell for this." Such stories prompted the Tennessee legislature to pass a law requiring doctors to ascertain that abortion clients are state residents. It is not enforced.

Pro-life legislators also have passed laws requiring waiting periods of 24 to 48 hours, but courts across the South have ruled them unconstitutional. That may well change in wake of the Casey decision, and pro-choice advocates are worried about it. For women who must travel great distances, waiting periods considerably complicate abortion. "In Mississippi, we're largely rural," says Harry Crumpler, associate director of Planned Parenthood of Mississippi. "There are 200 miles between abortion providers, and doctors aren't in the clinics every day. A 24-hour waiting period really means three or four days, maybe a week. What could have been done in a half-day's travel suddenly two full trips."

Another obstacle: so-called "informed consent" laws. Alabama, Tennessee, and Mississippi -- among many others -- have passed laws requiring that doctors tell patients about the "risks" of abortion, alternatives, adoption agencies, fetal development, possibilities for child support, and just about anything else that might discourage a woman from going through with the procedure. The laws have been enjoined in all states in this region except Alabama. Interestingly, the Alabama Dept. of Health was preparing a booklet to be distributed to clinics when it occurred to officials that pamphlets discussing abortion might violate the federal gag rule -- the state receives Title 10 money. The department had to put aside the brochures. "They've created their own nightmare," says Derzis. The very fact that a doctor has to deliver the lecture is obstacle enough. "That may not be a burden in Washington, but in Alabama it is," she says. "I've got a doctor in here 2 days a week. How could that work?"

Others object to the content. In Tennessee, legislators mandated language suggesting that abortion could result in death. They didn't say how often: the death rate is four per million abortions. "Often this is a tool of propaganda from people who don't want to see women have an abortion," says Linda Tussey Hammond, an abortion-rights lobbyist in Nashville. "Telling a woman that if she has an abortion she might die is just a scare tactic to subvert her choice."

"That won't deter a woman from an abortion," scoffs Elena Love, director of a Nashville abortion clinic. "What we're talking about is a lecture. People will turn it off....That we would find a physician willing to use his skills to deliver this lecture is a stretch of imagination. And can you imagine how much more you'd have to pay for his time?" Many believe such laws are designed soley to make the physician's job more impractical or dangerous. Most states, including Mississippi, have passed informed-consent laws with criminal penalities and fines.

"One of the things troubling to physicians is that proof of informed consent was the client's signature on a piece of paper," says Mississippi's Crumpler. "If you lost that record, you'd lose your defense against criminal charges. The law would put the burden of proof squarely on the doctor. There's a great deal of pressure on doctors to say 'This is just too much, I'll do something other than abortions.'"

This spring the South Carolina legislature, no paragon of virtue itself, debated a lecture law similar to Tennessee's. Already school counselors are unable to discuss abortion with students unless they talk only of the complications. The new proposal brought howls of outrage. "Where in the world do you get off making us sign off on something like we're in kindergarten?" demanded state Rep. Becky Meacham of the bill's (male) sponsor. Another irate female legislator, state Rep. Irene Rudnick, pushed through an amendment requiring that men who seek vasectomies also be given a lecture on risks and alternatives. The entire measure died on the floor.

Some legislatures have attempted to rein in abortion with more esoteric restrictions. Alabama lawmakers recently debated a measure that would have required that each clinic //and// doctor obtain at least $1 million in malpractice insurance. Such a law would have closed down every clinic in the state. "These [pro-life] people are just as creative as time allows," says Derzis. "Every hospital is self-insured, and a million dollars worth of insurance is not available to the clinics. All that would have done is put the clinics out of business. The Casey decision just opens the door to more of this."

Last year Mississippi lawmakers were unable to garner enough to votes to pass a bill requiring that the state's abortion clinics meet the stringent standards set for outpatient surgical centers. Instead, sponsors managed to pass a bill authorizing the state Dept. of Health to promulgate regulations governing the clinics. When the new regulations appeared last November, they were very similar to the surgicenter standards the legislature had defeated. They require hallways of a certain width, ceilings of a certain height, air-conditioning filtration of a certain type -- and include a regulation, not a law, that abortions not be performed after the 16th week.

"All of the state's five clinics don't meet these standards," says Crumpler. "They are very unreasonable. Planned Parenthood has always supported clinic oversight, certainly to insure the patients' safety and health. But whoever wrote these went back the outpatient centers bill. And they didn't grandfather in the old clinics." Indeed, one of Mississippi's clinics decided to abandon abortions altogether rather than undergo licensing hearings. Currently no abortion clinic in the state is licensed under the new rules. One has managed to meet the requirements, but two others are threatening to sue. (The fourth, down on the Gulf coast, is having zoning troubles -- the owner tried to move to a new building between a church and its day-care center.) An administrative hearing was held on the matter last week; no decision has been announced. This week the Right to Life of Jackson Education Foundation demanded that the state attorney general shut down the two clinics immediately.

The increasingly complicated patchwork of regulation varying from state to state already is discouraging women from abortion. If the experts are having trouble figuring out what's legal, then what of ordinary folks in the midst of life crises? "A large percentage of women believe abortion is illegal here," says Nancy Raley, director of a clinic in Columbia, S.C. "They never consider it. They just figure they're doomed to continue their pregnancies."

Says Tennessee's Love: "I think what really keeps away women now is confusion about what the law is and isn't. People calling here don't know what their rights are. I opened the office the morning after the Casey decision, and callers were saying 'Oh good, you //are// still open.'"

Amidst the legislative and courtroom battles, it's easy to forget that each abortion represents an aching human heart -- neither completely evil nor constantly virtuous. This morning a 34-year-old woman arrived at a Louisville abortion clinic with her husband. For four years, she said, she'd been carrying on an affair with a married man who lived next door. "Suddenly whammo, I started missing my period," she says. "I went to my gynecologist and he told me I was pregnant, and I thought 'This is it. My life is over.'" Her husband had had a vasectomy, and she knew he'd refuse to raise another man's child. Her paramour had been promising they'd run away together, but when she told him of her pregnancy he just gave her some money, a pamphlet on abortion, and told her he could do no more. "I was stupid and foolish," says the mother of two, who asked not to be identified. "I don't think I could have handled the humiliation of carrying another man's child. I nearly destroyed my marriage." She broke down and told her husband -- and to her astonishment, he forgave her. He waited in the clinic lobby for her today.

"I'm so thankful for this place," she says. "If I didn't have this alternative, I really think I might have done something drastic."

The U.S. v. Abortion