Thursday, January 18, 2001
In 1991, the mobile home where Dr. LeRoy Carhart and his family lived, plus a barn including 40 indoor horse stalls, a riding arena, a tack room and an office, burned to the ground. Carhart and his family escaped injury, but 17 horses, a dog and a cat burned to death in the blaze.
The fact that the fire ravaged separate structures spread out over several acres led Carhart and the local fire chief to suspect arson. But shortly after the fire was put out, a crew of city workers moved in with bulldozers to remove the horse carcasses, then proceeded to push the burned structures into one mountain of charred refuse, destroying evidence along the way. By the time the state fire marshal arrived to conduct an investigation, there was nothing left to investigate.
But the doctor had his ideas about the origins of the fire. As a physician at one of only three abortion clinics in the vehemently anti-choice state of Nebraska, and the only one to terminate pregnancies after 17 weeks, Dr. LeRoy Carhart has led an existence peppered with harassment for the past 13 years. On a daily basis, Carhart, his staff and his patients pass by a crew of seven regular protesters perpetually perched outside his clinic in the rural town of Bellevue.
The ex-Air Force surgeon, who started providing abortions in 1988 at the insistence of a patient who was also a nurse, was ill prepared for the political antagonism he faced. "I knew there had been problems in Nebraska," he says. "What I didn''t know was how devastating the climate was against women''s rights in the state of Nebraska. I''m still amazed they let women vote in this state."
So in 1998, when the Nebraska legislature began writing a statute outlawing "partial birth" abortion, Carhart was concerned, but not willing to put up a fight. "I just saw it as one more restriction on a woman''s right to choose, [but] no way was I going to waste any aggravation or any time on it in court," he says.
"Partial birth abortion" is a term cooked up by anti-choice politicians that ordinarily refers to the preferred procedure used for abortions after 16 weeks, one in which the fetus is pulled feet first into the birth canal. In medical terms, this method is called "dilation and extraction," or D&X. This method accounts for only a small fraction of all abortions performed in the U.S.
Second trimester (12-24 weeks) abortions make up just 10 percent of all abortions, and D&X is used for only a small portion of those. (The phrase "late-term abortion," though less loaded, is also misleading when applied to this debate--it usually and erroneously refers to any abortion performed after the first trimester.)
In 1998, 30 states had laws on the books outlawing procedures used in so-called partial birth abortions. Abortion advocates believed the laws are generally intended to discourage abortions in the second and third trimester by outlawing the procedure used to terminate later pregnancies. The laws cannot outright prohibit late-term abortions because Roe v. Wade legalizes abortion up to "fetal viability," or six months of pregnancy, after which the fetus can theoretically survive outside the womb. In addition, Roe v. Wade allows for abortions in the third trimester to preserve the life of health of the mother.
Many laws outlawing the procedure, abortion advocates charge, have been sold to the public using horror tactics and propaganda campaigns insinuating that nearly full-term babies are being needlessly killed. Carhart refers to them as "partial truth" abortions.
"It''s all smoke and mirrors," Carhart says. "Nobody in this state or anywhere does abortions in the third trimester. We''re not talking about anything that is a late abortion."
By the time the Nebraska bill came out of committee, it had grown into a thinly disguised prohibition of reproductive rights. It effectively outlawed abortions using the D&X (or "partial birth") method except to save the mother''s life, loosely defining the method as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child."
Instead of defining a particular medical procedure, the vague language could have been twisted to apply to all abortions. "The way it was worded, that''s every abortion that we do," Carhart says. "That''s a six-week abortion, a 10-week abortion."
Moreover, the law inflicted stiff penalties on anyone performing such abortions. Providers faced felony charges, up to 20 years in jail and the loss of their state medical licenses.
As soon as the law passed, Carhart filed a lawsuit against the state of Nebraska. The New York-based Center for Reproductive Law and Policy provided him with legal representation. Through the courtroom gamut, the doctor prevailed on every front--through district and appeals courts, and ultimately the U.S. Supreme Court.
In a 5-4 decision handed down last June in the Carhart v. Stenberg case, the prevailing Supreme Court justices opined that the Nebraska law was unconstitutional for two reasons. First of all, it failed to include a provision allowing for "partial birth" abortions to protect the health, not just the life, of the mother. Secondly, the court found that the law''s language was vague and failed to differentiate between abortion procedures--and therefore constituted an "undue burden" on a women''s ability to choose an abortion.
You Choose, You Lose
This Monday marks the 28th anniversary of Roe v. Wade, the pivotal U.S. Supreme Court case that made abortion legal in the United States. While a full generation of women has reaped the freedoms that the famous case championed--the ability to choose a life of dignity over one of crushing poverty and unrealized opportunity--it''s not something to be taken for granted.
In fact, American women''s hard-fought right to choose is a house built on shifting sands.
While the Carhart decision appears on the surface to spell victory for reproductive rights, the decision failed to clearly deem laws banning medically accepted abortion methods unconstitutional. In fact, the majority opinion left a virtual road map for Nebraska and other states to outlaw particular medical procedures as long as they are clearly defined and contain a clause allowing the procedure to protect the mother''s health.
What makes pro-choice advocates uncomfortable is that such laws don''t speak to the timing of an abortion, but instead ban certain procedures that may be the safest methods for women.
"[Lawmakers] are making medical decisions," says Eileen Tremain, public affairs director for Planned Parenthood in Monterey County. "They are deciding for a doctor and a woman the best medical procedure. They do not decide for a cardiologist the best way to treat a patient."
Moreover, the implications of the narrow 5-4 Supreme Court victory have made abortion advocates queasy. "It makes me extremely nervous," Carhart says. "That''s what''s so devastating about this election."
Much has been reported about the fact that President-elect George W. Bush could end appointing up to four of nine Supreme Court justices in his term. Of the three oldest justices, two--John Paul Stevens, 80, and Ruth Bader Ginsburg, 67--are decidedly pro-choice. William Rehnquist, 75, is anti-choice. And Sandra Day O''Connor, 70, has leaned both ways--she wielded the swing vote in Carhart.
Conceivably, if Bush replaces either Stevens, O''Connor or Ginsburg with a conservative justice, the high court could reconfigure to an anti-choice majority, opening up the flood gates for states and Congress to pass laws banning abortion.
"It only takes one justice to lose Roe," Carhart says. "We''ve got four out of nine basically saying it needs to go."
Should the Supreme Court turn anti-choice, it could encourage anti-choice states to pass laws restricting or even outlawing abortion. Because abortion is currently regarded as a state right, a shift by the Supreme Court might not affect the rights of women living in states that already have laws legalizing abortions on the books, such as California, where abortion has been legal since 1967.
However, that''s a vulnerable position. For instance, this Supreme Court, which has historically supported states'' rights, made an about-face last month when it chose to overrule the Florida Supreme Court concerning the presidential election.
Moreover, abortion activists seem certain that the new president would sign off on legislation banning partial birth abortion nationally. Two such bills have made it through the House and the Senate. President Clinton vetoed both.
A more clear and present threat to reproductive rights lies within Bush''s choice for attorney general, John Ashcroft, who, incidentally, isn''t even very well liked in his home state--he lost a 2000 congressional bid to a dead man. Ashcroft may have a hard time getting past the Senate, which must approve his nomination. California Sen. Barbara Boxer, for one, loudly opposes his confirmation.
Senate confirmation hearings started Tuesday. If Ashcroft manages to squeak by, his appointment could profoundly affect a woman''s right to choose. As a Missouri congressmember, he proposed the Human Life Act of 1998, an unsuccessful bill that would have granted constitutional rights to human embryos, abolishing a women''s right to choose. The law also would have eliminated some types of birth control, such as emergency contraception and the IUD.
"He''s one of the most fervent opponents of women''s rights," Tremain says. "It''s hard to imagine that he would uphold women''s rights as attorney general when he so vehemently opposed them as a senator."
While the attorney general doesn''t shape policy, he or she is the country''s top law enforcement officer. And an attorney general unsympathetic towards the plight of harassed abortion providers might turn a blind eye to the kind of violence that was prevalent during the Reagan/Bush years. Abortion advocates fear that Ashcroft will do little to uphold the Freedom of Access to Clinic Entrances Act (FACE) passed in 1994, and will be unwilling to investigates and prosecute acts of violence against abortion providers.
"Before the Clinton administration, we had no kind of support from the Justice Department," Carhart says. "They were reluctant to do any kind of investigation on bombings [of abortion clinics]. We''re sure that once the Republicans take back over, Ashcroft is so anti-choice, I know we''re going to have more bombings and shootings. Things will go back to the way they were eight years ago."
Ashcroft has busied himself on Capitol Hill in the last couple of weeks, ensuring senators that he will uphold FACE. Nonetheless, women''s rights activists remain uncomforted.
"I think when you appoint someone who is so visibly anti-choice... what message does that send to people who oppose abortion and choose to do illegal acts?" ponders Kathy Kneer, executive director of Planned Parenthood Affiliates of California. "We''re not off to a good start."
Never Give In
While the outlook on hard-fought reproductive rights for women might look pretty bleak, there is a glimmer of hope in people like Dr. Carhart who are fighting on a grassroots level.
Surprisingly, Carhart and his wife are Republicans. After a stint with the Democrats in the ''90s, they switched back to their old party affiliation. "We went back to the Republican Party to find pro-choice Republican candidates to run on the local level," Carhart says. "It''s the only way we''re going to get women''s rights back in the state of Nebraska."
The Carharts have also set up a fund to finance other abortion clinics in Nebraska, an effort that they say has been well received. "We''re getting a lot of support from the community--there''s a real need here," Carhart says. "There are a lot of people here that want to help. There''s a good part of the community that is pro-choice, but they feel intimidated about talking about it in public."
Despite his legal victory, the surgeon''s struggles continue in provincial Nebraska. Right now Carhart''s clinic faces eviction. An anti-choice state senator and a few of his buddies bought his building and are trying to kick him out. For that battle, he faced a judge who''s a former law partner of the attorney representing the landlords--the only other two judges in the county had already recused themselves from the case because they both are friends of the senator in question.
On Jan. 12, Sarpy County Judge William Zastera ruled that the eviction can proceed. Carhart will appeal.
The Carharts have dreamed about leaving Nebraska, moving to somewhere more pro-choice, like California. But the doctor says he''ll stay. "Right now, the only reason I stay is for the patients," he says. "Right now, I''m refusing to give in."
Kathy Kneer, executive director of Planned Parenthood Affiliates of California, speaks on the future of women''s reproductive rights this Saturday at the Louden Nelson Community Center, 301 Center, Santa Cruz, 10am-noon. The fee is $10-25 based on a sliding scale and includes brunch. Students with ID get in free. Call (831) 423-2356 for reservations.
Planned Parenthood urges pro-choice citizens to voice their opposition to John Ashcroft''s attorney general appointment with letters to Sen. Dianne Feinstein. An electronic form letter is available at www.plannedparenthood.org.