The Abortion Debate Thirty Years Later: From Choice to Coercion
Kramlich, Maureen, Fordham Urban Law Journal
For more than thirty years, supporters of legalized abortion have publicly advocated for the practice as a matter of "choice." (1) Initially, these advocates argued for a "right to choose" to be free from governmental interference in the decision to abort. In 1971, Sarah Weddington, who represented Jane Roe (2) in the case of Roe v. Wade, (3) argued before the United States Supreme Court for a "liberty from being forced to continue the unwanted pregnancy" (4) She argued before the Court for a negative right, for a restraint on governmental interference in the abortion decision, not for a positive right of access or governmental entitlement to abortion. But today, advocates of legalized abortion argue for governmental facilitation of abortion and are attempting to shift the debate in the public forum from "choice" to "access," a state of affairs that implies "coercion" of those health care providers who disagree.
Academic literature (5) attempting to recast abortion jurisprudence has influenced this public debate. These legal arguments propose reshaping the law's treatment of abortion rights (6) by shifting it from a negative liberty to a positive one, thereby requiring the government to provide access. Governmentally secured access, according to this view, (7) includes forcing unwilling health care providers, both institutional and individual, (8) to participate in abortions. (9)
Pro-life supporters now find themselves seeking to protect in law not only the life of unborn children and the authentic freedom and dignity of women, (10) but also their right to not participate in what they regard as a monumental injustice. In addition to working proactively for legal protection for unborn children, pro-life advocates are also working to defend the legal tradition, now at least three-decades old, (11) of protection of conscience rights--more specifically, of protection from forced involvement in abortion.
An ideology that calls for abortion on demand, at any stage of pregnancy, (12) and, if a woman cannot afford one, paid for by the government, (13) is largely driving the new public debate about whether all health care providers, including Catholic providers, should be forced to participate in abortions.
Another factor fuelling this debate is the very nature of the practice of abortion. Abortions, by and large, are performed in freestanding, specialized clinics located in urban areas. According to the most recent statistics available from the Alan Guttmacher Institute ("AGI"), a research organization affiliated with the Planned Parenthood Federation of America, (14) seventy-one percent of all abortions were provided by abortion-dedicated clinics, (15) and ninety-four percent of all abortion providers are located in urban areas. (16) Only five percent of abortions were provided by hospitals, and only 603 hospitals provided them. (17) This number represents 11.6 percent of all hospitals nationwide. (18)
The practice of abortion is also increasingly being consolidated into larger facilities. The AGI confirms the trend: "Between 1996 and 2000, the number of providers declined in each size category except the largest (5,000 or more); thus, abortions were increasingly concentrated among a small number of very large providers." (19)
Market pressures account for the practice of abortion by specialized, urban and large case-load providers. To generate a profit margin, abortion clinics have almost exclusively located in urban areas where there is a large population base. The New York Times, for example, interviewed abortion providers about the nature of the business and quoted one abortion provider, Dr. William Ramos, as saying, "Abortion clinics are no different from other specialty services.... In the entire state of Nevada, there is only one Lexus dealer and only one Acura dealer." (20) The article concludes, "Clinic owners say they have little choice but to cluster in cities--that is the only way they can find enough patients. …