Academic journal article Texas Journal of Women, Gender, and the Law

Abortion, Self-Defense, and Involuntary Servitude

Academic journal article Texas Journal of Women, Gender, and the Law

Abortion, Self-Defense, and Involuntary Servitude

Article excerpt

I. Introduction

As the manuscripts for the present issue of this journal were being prepared for final publication, the U.S. Senate passed a ban on so-called "late-term abortions." This is the (surprisingly neutral) term generally offered for abortions performed, normally during the third trimester, by "delivering" the lower half of the fetus's body and then collapsing its head so that it can be pulled through the woman's vagina. Under the legislation passed by the Senate, doctors performing such abortions could be fined and imprisoned for up to two years.

Considering that the House and Senate have passed similar bills before which were vetoed by then-president Bill Clinton, there is every reason to believe that, by the time this issue goes to press, the bill will have passed in the U.S. House of Representatives, been signed by the President of the United States, George W. Bush, and become law. Equally undoubtedly, it will soon be challenged in court and possibly, if not probably, struck down because of its lack of a provision for comprehensive health exemptions. Although the procedure may be performed if the life of the pregnant woman is threatened by the pregnancy, the "health" of the woman is not admitted as a legitimate exception. In that sense, the ban may seem moot and hardly worth noting.

But it is not; if the president is able to make more judicial appointments of fellow conservatives, particularly to the Supreme Court, then the ban may well be upheld. And the wording of the bill is vague enough to interfere with women's rights to other kinds of abortions, particularly those performed during the second trimester, a period of pregnancy with ambiguous protection under Roe v. Wade,1 particularly given the bill's assertion of the right of government to intervene between a woman and her doctor. Even if the bill is struck down, the very passage of the ban is highly symbolic-the thin edge of the wedge in conservative Republican efforts to roll back Roe. As Pennsylvania Senator Rick Santorum, the bill's sponsor, put it, "By the actual banning of the procedure itself, I don't think we're stopping any more abortions."2 The Senate's passage of a non-binding resolution reaffirming Senate support of Roe immediately prior to passing the bill perhaps provided cover for the sixteen Senate Democrats, including minority leader Tom Daschle, who voted with the conservative Republican majority. The two Democratic Senators who are running for presidential nomination, John Edwards of North Carolina and John Kerry of Massachusetts, were conveniently absent and so did not vote, although they had both voted against the ban in the past.3

Such crossover voting is a response to the successful propaganda campaign of the pro-life movement to focus on this procedure as "extreme." Conservative Republicans began focusing on the procedure in the mid-1990's, highlighting a sensational representation of the facts-for instance, claiming that the fetus is dismembered to remove it from the womb-to build up momentum in the anti-abortion campaign, betting that "even those who supported abortion rights would oppose a procedure that has been described scores of times in gruesome detail on the floor of the House and Senate."4

Yet, as Santorum's comment indicates, the symbolism of this bill's passage is less about this particular procedure than about other issues still to be considered by the Republican-controlled Congress. These issues include taking minors across state lines to avoid parental-notification laws and preventing the withholding of state and federal funds from hospitals that refuse to perform abortions. It is also part and parcel of efforts to ban embryonic stem cell research and all cloning, which as Kate Michelman, president of Naral Pro-Choice America, has put it, "lays another stone on the pathway to overturning legal abortion."5 That this is indeed "a war on women" should be evident from the fact that an amendment to the bill, which would have required private health insurance plans to cover contraceptives as a way to reduce the need for abortions, was defeated shortly before the bill was passed. …

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