By Asjylyn Loder
Friday, November 28, 2003
The temporary injunctions against the so-called Partial-Birth Abortion Act are the result of almost a decade of work by pro-choice advocates. And say activists, the battle over women's reproductive rights is just entering a new battleground.
(WOMENSENEWS)--Vicki Saporta arrived at the New York Federal Courthouse nearly 40 minutes before the 2 p.m. hearing, making her the first to arrive in the courtroom. "I've been waiting for this a long time," she said, "I wanted to make sure I got my seat."
It was Nov. 5, and within minutes President Bush would sign the Partial-Birth Abortion Act of 2003, enacting a law that many believe bans only late-term abortions but medical experts sayactually criminalizes the safest procedures used for abortions as early as 13 weeks. The law does not provide any exceptions for the health of the woman or the fetus.
Responding swiftly to this challenge, three of the largest and best-known abortion rights organizations waged a multi-front opposition, filing simultaneous legal challenges in Nebraska, New York and California, and mounting a coordinated media and public relations blitz in an effort that capped eight years of continuous, state-by-state skirmishes over the bans.
Saporta, president and chief executive officer of the National Abortion Federation, had filed one of the three preemptive legal challenges. As she waited for the hearing to begin, lawyers with the Center for Reproductive Rights were arguing against the ban in a Nebraska court, while Planned Parenthood waited for its hearing in California. Saporta set her purse and coat on the front bench of the spectator's gallery, her mouth and shoulders determinedly set.
Saporta's organization, represented by the American Civil Liberties Union, had found out late the previous day that the case, National Abortion Federation v. Ashcroft, would be heard the next afternoon. The federation represents nearly 400 abortion facilities that together perform about 50 percent of the approximately 1.31 million abortions in the United States each year. Without an injunction, the law would go into effect at midnight.
A former organizing leader for 20 years with the International Brotherhood of Teamsters, Saporta took over at the federation, based in Washington, D.C., in 1995. Two weeks later, the first federal partial-birth ban was introduced.
The fight against the partial-birth bans has defined Saporta's tenure at the federation, just as it has defined the abortion-rights movement for the much of the last decade. Arguably the single largest challenge to face abortion rights activists in recent years, the bans have become the keystone in a broad anti-choice strategy to whittle away abortion rights.
Under the latest version of the law, physicians will face fines and a two-year prison term unless the woman's life is in danger, criminalizing some abortions even if the physician believes the woman's health to be at risk. In addition, the husband of the pregnant woman or the woman's parents if she is under 18, may sue the physician for damages. The pregnant woman is exempt from prosecution.
Former President Clinton vetoed two similar measures, in 1996 and 1997. Similar bans have been introduced in 31 states and have been struck down in 21. In the 10 remaining states, the bans are unenforceable or limited to post-viability abortions. In Colorado, Maine and Washington, ballot initiatives failed to pass partial-birth bans.
Since taking office, President Bush has voiced support for the bans. Preparing for the eventuality that a federal abortion ban would be signed into law, the ACLU and the Center for Reproductive Rights began canvassing potential plaintiffs long before the latest ban found its way to the president's desk.
Shortly before 2 p.m., the whispered news went around the courtroom that President Bush had signed the bill. The hearing began moments later, with only 10 hours left before the law went into effect.
Saporta watches as her attorney heatedly spars with a federal judge who usually handles disputes over large amounts of money or drug transactions, not over questions of when and how a woman may terminate her pregnancy.
In 2000, the Supreme Court decided 5-4 in Stenberg v. Carhart that Nebraska's partial-birth ban violated the constitution because it was vaguely worded and did not have an exception to preserve the health of the woman. Opponents charge that the new law suffers from the same defects.
An hour into the hearing, there was a hushed flurry in the courtroom. Whispered conferences were held, papers passed up to Saporta's chief lawyer, Talcott Camp's team. The Nebraska ruling was in. Priscilla Smith, the lawyer for the Center for Reproductive Rights, had won an injunction in Nebraska.
The center's win in Nebraska came at a time when the political climate and financial downturn have ushered in financially lean times for the organization, which had to cut staff, downsize its Washington office, and lease out part of its Manhattan headquarters. With a staff of 13, their domestic team has 25 cases on the docket, including a challenge to a Virginia partial-birth ban that went to trial on Nov. 24. The center declined to estimate the cost of fighting the latest federal ban.
"I know they've talked about dollar and cents-ing us out of existence," said Ellen Sweet, the center's director of communications. She added the cutbacks predated the latest legislation and have nothing to do with the cost of fighting the partial-birth bans. Rather, she said, the media attention attracts donors to the center's work.
Saporta, too, reports that her organization has observed a spike in enrollment as abortion providers sign on with the federation so that they will be covered by the federal injunction.
The ACLU Reproductive Freedom Project said it was impossible to estimate how much the partial-birth bans have cost them in travel, office support, printing costs, salaries or public relations campaigns. The project has a total staff of 15, including 7 full-time attorneys. The partial-birth bans are one of several cases on their docket.
The U.S. Justice Department bears the cost of defending the legislation and says it will use "every resource necessary" to defend the new law.
During a brief recess in the New York hearing, Saporta learned that the Nebraska injunction protected only the four physicians bringing that case, making it all the more important that Saporta's attorneys win an injunction for her members.
Saporta left with little new comfort to offer her members. The judge closed the hearing without issuing an injunction.
Saporta was not alone in her anxiety. One abortion provider, who wished to remain anonymous, said by phone with Women's eNews that because clinicians remained unclear about what the law prohibited, they were unsure what the next day would hold if the judge did not issue an injunction.
The following day, however, Judge Richard Casey granted an injunction that protects members of the National Abortion Federation from enforcement of the ban until March 2004.
The trials for a permanent injunction in both New York and Nebraska will begin on March 29. An injunction in San Francisco covers all 850 U.S. Planned Parenthood affiliates through their trial, which will also begin in March.
Although they have won the injunctions and appear to have Supreme Court precedent on their side, "it's not a done deal," said Lorraine Kenny, public education coordinator with the ACLU. As with any case, the organizations face four months of labor-intensive preparation.
In the meantime, they must battle abortion restrictions on other fronts. The day after the injunctions were issued, Congress introduced legislation to ban the abortion pill, RU-486.
"We've been fighting this legislation for eight years and will not stop until women's lives and health are protected," Saporta said.
Asjylyn Loder is a freelance writer in New York.
Center for Reproductive Rights--
"So-called 'Partial-Birth Abortion' Bans":
American Civil Liberties Union--
"First-Ever Federal Abortion Ban Challenged in Court":
Women's eNews--"Activists Will Run to Court to Halt Abortion Ban":