by Maureen Bailey
November 18, 2005
On November 8, the Public Broadcasting System (PBS) aired, and continues to play on its webpage, a documentary "The Last Abortion Clinic." The program explores the successes of the pro-life movement in Mississippi and examines the business of an anonymous abortion clinic in a nearby state. Emphasizing Mississippi's extensive pro-life laws, the program suggests that Roe v. Wade effectively has been overturned in that state.
"With states across the U.S. passing regulations limiting access to abortion," the program webpage asks, "does Roe v. Wade still matter?"
Laws regulating the practice of abortion---parental consent, informed consent and clinic safety laws---may make abortion rarer. It should not be any surprise that laws requiring abortionists to give women full information about abortion's risks and alternatives, and about the unborn child's development, empower women to choose against abortion. Nor should it be a surprise that laws requiring parental involvement help parents protect their daughters from abortion. Such laws can and do result in fewer abortions.
Laws requiring abortionists to equip their clinics the same way as all other ambulatory surgical centers may make abortions more expensive. If the abortionist refuses to absorb those costs and instead passes them off to patients, there may be less business. And less business may translate into a need for fewer clinics. It is always cheaper and easier (for the clinic itself) to avoid safety requirements.
But no law is actually outlawing abortion and thereby closing clinic doors. No law is having that effect, because no law is allowed to do so under Roe v. Wade.
In Roe, the Court prohibited any state oversight of abortion during the first trimester (about the first three months of pregnancy). During the second trimester, the Court allowed only regulation of abortion by states, and only to advance the woman's health. And after viability, the point when a child could simply be delivered and survive outside the womb, the Court pretended to allow states to ban abortion—but rendered any such ban meaningless through Roe's companion decision, Doe v. Bolton. Roe said that a state may proscribe abortion after viability "except where it is necessary . . . for the preservation of the life or health of the mother." Doe provided an expansive definition of "health" to include "all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the wellbeing of the patient." Thus no meaningful restriction of abortion is constitutionally permissible at any stage of pregnancy.
Whether in Mississippi or Massachusetts, the Supreme Court has said abortion must be legal until the moment of birth. And ever since the Court's decision in Stenberg v. Carhart, striking down Nebraska's ban on partial-birth abortion, legal abortion extends even to the process of delivery.
Short of the constitutional amendment process, the most committed pro-life movement and the most conscientious legislators cannot change the fact that abortion on demand for all nine months of pregnancy is the law of the land. Only the Supreme Court can change that. Let's pray that it will soon.
Maureen Bailey is a public policy analyst with the Secretariat for Pro-Life Activities in the United States Conference of Catholic Bishops.