Chipping Away at Roe vs. Wade

With no hearings or debate, the Republican majority this month grafted the Abortion Non-Discrimination Act onto the $388-billion appropriations bill, approved last week. Although the name implies it protects women who are seeking abortions from discrimination, the reverse is true. The act legalizes discrimination, allowing any physician, hospital or health insurer to refuse to perform or pay for abortions and even to tell pregnant women that the option exists. That new right will extend, in practice, to employers, who get to pick which health plans a company will offer.

The amendment is only one brick in a wall, part of a deliberate strategy to shut off access to abortion services, clothe fertilized eggs with the legal rights of a child and discourage, even humiliate, pregnant women who cannot or do not want to raise a child. The obvious aim is to shrink the landmark abortion-rights decision Roe vs. Wade to the point where there is no need for judges to formally overturn it.

In April, President Bush signed the Unborn Victims of Violence Act, letting federal prosecutors bring separate homicide charges if a pregnant woman and her fetus are killed. Murder is usually a state crime, and if there have been federal murder cases involving pregnant women no one seems to know about them. But this bill was not about punishing murderers; it was drafted specifically to grant a fertilized egg legal rights.

The Partial Birth Abortion Ban Act was the first federal law to forbid an abortion procedure since the 1973 Roe decision established a woman’s right to terminate her pregnancy. The ban, which Bush signed last year, has been ruled unconstitutional by three federal judges, but appeals are pending. The law bars a rarely used technique for second-trimester abortions, which are themselves rare. Later-stage abortions most often result from fears for the woman’s health or fetal anomalies.


The gag order Bush imposed through executive order on his third day in office remains in effect, withholding U.S. aid from foreign health clinics if a worker in such places as India or Africa even mentions the abortion option. The spending-bill amendment allows health corporations to slap that same gag order on U.S. doctors and nurses. Physicians who oppose abortion already are not compelled by law to perform one. But now a hospital chief who opposes abortion could silence every doctor and nurse in his or her employ. In rural communities with few hospitals and health-plan choices, the measure could effectively end legal abortions. And that’s the point.

The act overrides laws in California and other states explicitly guaranteeing the right to choose. States insisting that hospitals with a no-abortion policy offer that service to women covered by Med-Cal risk losing millions in federal Medicaid dollars.

With dozens more bills in the congressional hopper, with titles such as the Unborn Child Pain Awareness Act or the Post-Abortion Depression Research and Care Act, reproductive choice is fading fast.