Getting the Story Straight: The Press and "Partial-Birth Abortion"

The day following oral arguments in the United States Supreme Court "partial-birth abortion" case, Stenberg v. Carhart, the details of the proceedings appeared as front-page news across the nation. That was no surprise considering the impact the Justices' decision will have on the future of women's choice. More significant was how several major news sources, including The Associated Press, Washington Post and L.A. Times, described the Nebraska statute under review - that is, as a pre-viability abortion ban, and not a ban on late-term abortion procedures. That recognition has been long in coming.

In 1995, when the first "partial-birth abortion" ban reared its head in the state of Michigan, abortion opponents (including the National Right to Life Committee, which helped write it) simultaneously initiated a cunning publicity scheme, backed by millions of dollars, to mislead the public into believing the ban was about "gruesome" late-term procedures. The groups employed graphic drawings of fetuses aborted late in pregnancy. The deceptive term "partial-birth abortion," which was concocted by abortion opponents and is not recognized by the medical establishment, also seemed to suggest abortions performed on viable fetuses. And the language describing the ban was confusing and slippery, deliberately so it would turn out.

In reality, the ban was a prohibition on pre-viability abortions. That is, abortions performed early in pregnancy. After all, post-viability abortions (those performed after approximately 24 weeks of pregnancy) are already prohibited in most states unless the mother's health or life is endangered. However, even the pro-choice movement initially bought into this clever ruse, galvanizing attention on the tragic circumstances that surround the very few abortions that are performed late in pregnancy. That tactical decision proved to be a mistake that haunts the pro-choice movement even today.

"We were initially forced to respond quickly to the rhetoric of the other side," says Janet Benshoof, President of the Center for Reproductive Law and Policy. "However, once we sat down and analyzed the statute it became apparent that this ban was going to affect abortion procedures during the first two trimesters of pregnancy. It certainly wasn't about any specific procedure. In fact, it would make it a crime for a doctor to perform many of the safest and most common abortion procedures available today."

The judge in Michigan agreed. CRLP and other pro-choice groups won a legal challenge to the Michigan statute on the grounds that it was unconstitutionally vague and an undue burden on a woman's right of reproductive choice. On July 31, 1997, U.S. District Judge Gerald E. Rosen ruled the law was so vague it could apply to more than 85% of post first-trimester abortions. "Physicians ... simply cannot know with any degree of confidence what conduct may give rise to criminal prosecution and license revocation," wrote Judge Rosen in his opinion.

However, by that time, the anti-choice contingent's deceptive campaign had already had a devastating effect. The terms "partial-birth abortion" and "late term" abortion were now practically synonymous in the minds of the press who, in turn, reinforced their skewed perceptions in story after story.

Even today, after 18 courts have found these laws unconstitutional, CRLP's communications deputy director Margie Kelly still spends a considerable amount of her time educating the press. But those efforts have been paying off.

One of the most profound changes occurred in The Associated Press's coverage of the issue. For years this major news service described "partial-birth abortion" laws as bans against late-term procedures despite repeated calls by Kelly to protest their misleading and biased reporting. She recalls one Nebraska AP reporter becoming so incensed that he stormed off on a fact-checking mission to prove her wrong. However, after rereading the Nebraska ban and conferring with the attorney general, he determined Kelly was right. As he corrected his reporting, so did the rest of the AP network.

The day the Supreme Court convened to hear Stenberg v. Carhart, the AP headlined one story, "Top court considers state laws on so-called "partial-birth" abortions." David Savage of the LA Times wrote that the justices must decide "on how midterm abortions are to be performed." Supreme Court reporter Nina Totenberg was quoted on National Public Radio as saying "Contrary to widespread public understanding, laws banning the procedure do not involve third-trimester abortions." (Emphases added.)

And when the editors of the Baltimore Sun discovered they had erred in their story, the paper took the initiative to print this front-page correction the following day:

"An article yesterday about the Supreme Court's abortion hearing described new laws under review as 'bans on certain late-term abortions.' Whether the laws apply only to 'late-term abortions' or to others earlier in pregnancy is a central issue the court will decide. The Sun regrets the implication that the issue is already settled." Unfortunately, falsehoods have a tendency to stick around. And the fabrication that is termed "partial-birth abortion" made an early and deep impression that is only now lessening.

-Ann Farmer

Beyond the Breast Cancer Myth

A stark black and white billboard looms over Interstate 95 near Philadelphia, thrust on motorists by Family Life Education Foundation and boldly displaying the provocative message: "abortion increases breast cancer risk." In 1996, similar messages were posted on subways, buses and trains in metropolitan Baltimore, Washington D.C. and Philadelphia by a group called Christ's Bride Ministries (CBM). Matthew Staver, legal counsel for CBM and other conservative religious groups, has defended this anti-choice chicanery by saying, "I don't think the First Amendment depends on truth. I think you can say things that are wrong." It appears he is right on that count.

When CBM's message that "women who choose abortion suffer more and deadlier breast cancer" first began appearing on public transportation, health experts like Dr. Phillip Lee, the former assistant secretary of health in the U.S. Department of Health and Human Services, called them "unfortunately misleading" and "unduly alarming." And when Southeastern Pennsylvania Transportation Authority (SEPTA) discovered that there was insufficient scientific evidence to back CBM's allegation that abortion causes breast cancer, SEPTA decided to remove the advertisements and refund CBM.

A protracted legal battle followed. SEPTA defended their right to remove the misleading ads and won at the federal district court level on the ground that the advertising space at issue did not constitute a public forum and therefore SEPTA acted reasonably. However, in 1998, CBM won the right to reinstate their message when the Federal Court of Appeals for the Third Circuit decided SEPTA had indeed created a public forum and violated CBM's First Amendment rights by removing the posters. CBM was never required to prove that their claims had any scientific merit.

"That's a price we pay for freedom of speech in this country," says CRLP fellowship attorney, Suzanne Novak. "Sometimes people have the right to make outrageous claims, regardless of their lack of validity."

To support their biased claim, anti-choice groups have frequently touted a Daling, et al. study that showed some statistical correlation between breast cancer and abortion. But the findings in this study are inconsistent and the correlation it reveals is very weak in epidemiological terms (see graph).

Overviews of the research published on this subject that found a correlation between breast cancer and abortion were case-control studies in which women with and without breast cancer were interviewed about their medical history. Researchers have since proposed that healthy women experience "recall bias," meaning that they are less likely to reveal during an interview that they have had an abortion than are women with serious medical conditions like cancer.

By contrast, a larger and more comprehensive 1996 Danish study by Melbye, et al. and published in the New England Journal of Medicine has become the basis on which organizations like the American College of Obstetricians and Gynecologists, the National Cancer Institute, the National Breast Cancer Coalition, and the American Cancer Society agree that there is insufficient evidence to prove that induced abortion has an effect on the later development of breast cancer. The study tracked 1.5 million women through the Danish Cancer Registry and the National Registry of Induced Abortion, thus avoiding the pitfalls of undersized sample populations and the "recall bias" that occurs during personal interviews. It concluded that the more than 300,000 women who had abortions were no more likely to contract breast cancer than the 1.2 million with no history of abortion.

It is crucial to note that even the case control studies that showed a statistical relationship between breast cancer and abortion did not necessarily confirm a cause and effect relationship between the two. Dr. Lynn Rosenberg has done several studies on breast cancer and abortion, and explains it this way: "If someone studied a correlation between the number of computers in use and the risk of breast cancer, there would be a statistical correlation because the rate of breast cancer has been increasing alongside an increasing rate of computer use. But this certainly doesn't mean that computer usage is causing breast cancer."

In fact, no study has been able to demonstrate a biological mechanism for how abortion could cause an increase in breast cancer risk. While researchers studying breast cancer will continue to ask questions about abortion, Dr. Rosenberg says that, "as far as most epidemiologists are concerned, it has been a dead end. They're putting their efforts into other areas."

But anti-abortion forces, feverishly bent on a campaign to convince women not to exercise their right to choose, are not likely to lessen their scare tactics, especially now that they've secured constitutional protection for such inflammatory advertisements as the one greeting drivers on Interstate 95. For one thing, they are dragging the discredited cancer link issue into trials challenging abortion bans. When CRLP staff attorney Bebe Anderson recently led the challenge against a Florida law that requires teens to notify their parents before obtaining an abortion, she was forced to produce an expert witness to dispute an alleged abortion/breast cancer link raised by the State of Florida. "They were attempting to dupe the judge by inventing health risks for abortion and presenting inaccurate, unsubstantiated information," says Anderson. The parental notice law has subsequently been struck down by a Florida state trial court.

The attempt to misinform women has even reached the legislative level. Bills have recently been introduced in New Jersey and Oklahoma requiring clinics to inform women seeking abortions about an elevated risk for breast cancer. If these bills become laws, they will stand in direct opposition to the findings of the most comprehensive medical studies done on this subject.

"The members of the anti-choice movement do not have women's health as their main concern when they promote such legislation," says Anderson. "They simply will use any means necessary, including the spread of deceptive information, to frighten women into continuing an unwanted pregnancy."

-Jill Molloy

New Women of the World Publication Features Francophone Africa

In Senegal there is no law to protect women against marital rape. "Marital rape is a term that simply doesn't exist," says Codou Bop, a Senegalese women's rights activist with Groupe de recherche - femmes et lois au Senegal (GREFELS). She adds, "Laws don't always solve problems, but if there is no law it's as if you don't have the right to be free from such violence."

Bop is well aware of the laws (and non-existent laws) impacting women in her part of the world. She recently served as the regional coordinator for CRLP's newest publication, Women of the World - Francophone Africa: Laws and Policies Affecting their Reproductive Lives, which presents a comprehensive review of women's reproductive health and rights in seven Francophone Africa nations: Benin, Burkina Faso, Cameroon, Cote d'Ivoire, Mali, Senegal and Chad.

The project, which took almost two years to complete, was a challenging feat. "In many of those countries it's very hard to get access to written laws," says CRLP's international program staff attorney Maryse Fontus, who oversaw the project and edited the research contributed by women's rights organizations from each country. "This is the first time that all these countries' laws and policies affecting women's reproductive lives have been compiled in one resource. So it's not only a practical legal guide for rights advocates but it identifies problem issues in the region."

The 212-page report covers a broad range of topics. Each nation is examined in terms of the country's political framework, its sources for the governing laws, its customary laws and its policies on health, population and family planning. In general, the seven Francophone African nations share a lot of troubling similarities including restrictive abortion laws, high maternal mortality rates, high prevalence rates for HIV/AIDS, low contraceptive use and the continuation of harmful traditional practices including polygamy and female circumcision/female genital mutilation.

Women's legal status is examined in the context of their right to be free from discrimination. For example, in Benin, only men (not women) may ask for a divorce on the grounds of adultery.

A critical section on adolescents is included, especially as many of these nations permit adolescents to marry, which often results in early childbearing.

During the book's launch, which was held in Senegal in April, representatives from the featured countries discussed strategies for revising restrictive laws and adopting better ones. Benin, for example, still has a 1920 law that bans abortion and contraceptive advertising. Plans were formulated to meet with Benin's parliamentarians to explain how that law contradicts international human rights norms, such as those stated in the Convention for the Elimination of Discrimination Against Women, a treaty Benin has ratified.

Also discussed was a law banning sterilization in Cote d'Ivoire, where women often lack access to other methods of contraception. The punishment for persons performing a sterilization procedure is the death penalty. "It's very important that we get this and other laws that harm women abolished," says Fontus, "and instead, convince lawmakers to draft new laws that promote women's reproductive lives and well-being." As an initial follow up to the WOW report, Fontus is organizing a fact-finding mission to Benin to investigate the practice of forced marriages.

-Ann Farmer

The Legal Age for Marriage*

*The customary laws in several of these countries allow girls to be married at much younger ages than the national laws permit. i.e.The Chad Penal Code authorizes customary marriages of girls at 13 years.

In Mexico, Abortion Rights Strictly For the Books

Fourteen-year-old Paulina Ramirez Jacinta was raped last year by a burglar who has since been jailed. Under Mexican law, Paulina was permitted to terminate the unwanted pregnancy that resulted, and she was firmly set on exercising that right. Until opposition forces proved too fierce.

After Paulina was admitted by a public hospital for a first-trimester abortion, she was visited by unidentified anti-choice extremists who showed her graphic videos of abortions in a failed attempt to dissuade her. Then physicians at the hospital refused to perform the procedure for alleged conscientious reasons. So Paulina and her mother, Maria Elena Jacinto, appealed to Baja California's Attorney General Juan Manual Salazar Pimentel, the state's highest judicial official, for help. Instead he escorted them to a Catholic priest who told them that abortion is a sin.

But Paulina and her mother pressed on, determined that Paulina should not be forced to become a mother at such a young age and under such horrific circumstances. The attorney general reluctantly signed a new order for an abortion. However, shortly before the procedure was to take place, Paulina and her mother were frightened out of it by the hospital director who exaggerated the health risks involved, emphasizing that Paulina could suffer a fatal hemorrhage or be left sterile - even though abortion is an extremely safe procedure. In April, the young teen delivered by Caesarian section the baby that she will raise with the help of her parents and with some economic assistance from several non-governmental organizations.

"I am happy because everything went well, but I have a lot of anger," said Paulina's mother to the Associated Press shortly after the birth. Since then, lawyers from two Mexican women's rights organizations, Epikeia and GIRE (Information Group on Reproductive Choice), have filed criminal and civil charges on Paulina's behalf. They have also taken the case to the Baja California state human rights prosecutor, who has turned it over to the National Human Rights Commission for review of probable human rights offenses, as when the officials' permitted anti-choice extremists into Paulina's hospital room and when they allowed their personal views to dictate her treatment rather than respecting Mexican law. Paulina's attorneys are requesting state funds to help support Paulina and her child until he reaches 18 years of age. In addition, Paulina has become something of a cause celebre in Mexico, attracting the support of numerous women's and human rights groups, and several dozen Mexican intellectuals including the novelist Carlos Fuentes.

Isabel Vericat, one of Paulina's attorneys, says the most extraordinary thing about this case are the courageous actions Paulina and her mother took. "First of all, they denounced the rape, which is very uncommon for a rape victim to do in Mexico," says Vericat. "Then they demanded the right to a legal abortion in a public hospital, which is also practically unheard of. Very few women dare to publicly challenge the machismo and Catholic-dominated establishment the way Paulina and her mom have done."

Mexican abortion laws, which are regulated at the state level, are highly restrictive. It is estimated that as many as half a million Mexican women undergo illegal, clandestine abortions each year. While first-trimester procedures are permitted for rape victims or women whose lives are endangered by the pregnancy, Baja California state Rep. Martin Dominquez Rocha recently made the alarming proposal that the state's penal code be changed to eliminate the rape exception. Rocha is aligned with the socially conservative political party known as PAN (the National Action Party), which is closely affiliated with the Catholic Church and is backing a strong contender in the presidential elections to take place on July 2. Pro-choice advocates are particularly concerned about a PAN platform to reform the national constitution to recognize life from the moment of conception.

Vericat spent last fall as a visiting attorney with the Center for Reproductive Law and Policy to hone her expertise in the area of reproductive and sexual rights within an international framework. She says that if Paulina does not receive satisfactory relief from the state, and if all other national legal remedies are exhausted, her case will be submitted to the Inter-American Commission of Human Rights. This is the same body that held a hearing last fall involving the Peruvian government and an indigenous woman who was raped by a doctor employed in a public hospital. CRLP attorneys helped negotiate a settlement favorable to the Peruvian woman and would assist in Paulina's case as well. GIRE is also arranging a workshop in Mexico in July at which CRLP attorneys will give a presentation on the various international monitoring mechanisms and strategies for defending women's reproductive rights.

-Ann Farmer

Report from the Front Line (that is, the waiting line)

Julie Kay, Staff Attorney

The rain came pouring down at seven a.m., just as a blaring noise began emanating from a bullhorn aimed at the crowd that had been standing, sitting and sometimes sleeping on the United States Supreme Court steps for almost 12 hours. The man's voice over the bullhorn wildly berated the pro-choice movement while a Winnebago covered with inflammatory abortion pictures slowly circled the block. Although pro-choice supporters were outnumbered by anti-choice advocates by almost four to one, we were not daunted, knowing that our side would be heard equally inside the Supreme Court.

Away from the clamor, the actual courtroom at the Supreme Court is surprisingly small and quiet, an impressive dark mahogany and white marble retreat. At 10 a.m. precisely, an "all rise" sounded and the red curtains to either side of the bench parted as the Justices entered.

The Court gave each attorney 30 minutes to present his side of the argument. The Justices' questions came rapidly, often overlapping one another. Gradually, the rhythm of a polite banter took hold. Through it all, the Justices appeared to be directing largely rhetorical questions at each other from some predetermined position rather than searching to develop a position on the legal issues at stake here. And then it ended. In less time than it takes to proofread a brief, the arguments were over. There was no formal "thank you," no definitive ending, no applause or bows.

DeAna Hare, Development Associate

The most interesting part of the wait to get in was observing the gender dynamics of the anti-choice contingent. The majority of those waiting in line were women, both young and old. The majority of the spokespeople were men.

Early in the morning, two men came around and brought the women food and juice. The men were extremely paternalistic and took pains to act like they were caring for and protecting these women. But the women had been the ones standing in line all night! These men were willing to be the heroes, to swoop in rested and scrubbed to preach in front of the Court, but were unwilling to actually put their bodies on the front lines.

The men who lead the anti-choice movement talk, moralize, yell and condemn, but their bodies aren't the bodies at stake. The bodies of the women they claim to protect are the ones at stake, and I don't understand why these women don't see that their male leaders are not concerned with protecting fetuses or women, but with having control. If the anti-choice movement were really concerned with protecting fetuses, it would work for comprehensive prenatal care. If these men were really concerned about the women they work with, they wouldn't demonize women by implying that they abuse measures designed to protect their health.

Karen Raschke, Staff Attorney and Director, State Program

It was our 15th wedding anniversary. And it was my husband Don's idea. He suggested we spend Monday night at a hotel near the Supreme Court, so we could get up before dawn, stand in line, and then watch the argument together. What better way to cap off our romantic weekend celebration? There was none.

I'll never forget the first piece of mail I got after I moved in with Don: a letter telling me of an abnormal pap smear. Several days later, the gynecological oncologist diagnosed me with cervical cancer.

Don and I had to decide right away whether we wanted to have children in the future, because our decision would influence my treatment options. My life was never in any danger, but my future fertility was. Our first very personal decision was to decline a hysterectomy. We decided to try everything else first. However, five years later I had a hysterectomy.

No one told my husband and me that the government preferred childbirth over sterility and that I should continue a course of medical treatment that would best protect that government bias. No politicians dictated the content of the informed consent documents I signed. No legislative body directed my physician as to what procedures to use under risk of criminal prosecution.

Yet over the last 15 years, the Supreme Court has allowed Congress and the states to express a preference for childbirth. I always wonder what would happen if our government determined that America has too many people, that we need to have fewer pregnancies. Will my husband and I be among the lucky ones who chose hysterectomy on our own?

Zoe Oxaal, Development Associate

Attending the Supreme Court hearing was like a rite of passage for this "new American." Before I moved here a year ago, I read an official U.S. handbook on the constitution and government several times. Being part of CRLP has extended my civic education into the far corners of American life - the legal and healthcare systems, the politics, the abortion controversy and the stories of women from nearly every state.

But waiting in line overnight outside the Court brought me as close as I've come to religious fundamentalism - U.S. style. "Partial-birth abortion" ban proponents may have tried to portray this issue as narrow and moderate, but during their candlelit vigil on the court steps their extreme agenda was clear. Speakers blamed abortion for all of society's ills. Abortion, they said, was at the root of a tragic shooting that day by a teen at the D.C. zoo. Their real purpose is to turn Americans against all abortion, and "partial-birth abortion," they admitted, was just the start. The separation of church and state was anathema to them. They prayed for God to intervene in the hearts of the justices, but they meant only their God - an anti-choice God.

On the Docket

Florida Court Rejects Argument for Medicaid Funding of Abortions

Current Status: The latest step in a seven-year legal battle ended on April 20, 2000, when the three-judge panel in Tallahassee, Florida's First District Court of Appeal rejected arguments that Florida should pay for abortions of poor women if their health is endangered during pregnancy.

Background: Although the filing of the case dated back to March 1993, the challenge to Florida's prohibition on Medicaid funding of medically necessary abortions wasn't heard till June 1998, due to legal procedural issues. Lawyers for five Medicaid-eligible women, eight abortion clinics, two doctors and a non-profit organization providing financial assistance to women who cannot afford abortions, argued that the ban on Medicaid coverage for this procedure - except in the rare instance that the pregnancy is life-threatening or the result of rape or incest - violates the state's constitutional guarantees to privacy, equal protection and equality. In October, 1998, the Second Judicial Court for Leon County ruled against the plaintiffs, prompting an appeal.

The appeals court decision, siding with the state's position, followed a February 16, 2000 hearing to overturn the Judicial Court's ruling. While 13 other states have been required to fund medically necessary abortions for low-income women in the last five years, the appeals panel ruled that the "policy decision to fund prenatal care and childbirth expenses, but not abortion, does not coerce indigent women to carry a pregnancy to term, nor does it penalize them if they choose to have an abortion." Additionally, the panel stated that "although women may have the right to an abortion under the state Constitution, there is no entitlement to sufficient state funds to enable one to exercise that right." Plaintiffs' lawyers have filed an appeal in Florida's Supreme Court and are waiting for a response.

Plaintiffs in Renee B. v. State of Florida, No. 99-1238 (Fla. Dist. Ct. App. April 20, 2000), are represented by CRLP Staff Attorney Bonnie Scott Jones and Larry Helm Spalding of the ACLU Foundation of Florida.

-Ellen Weiman

Florida Parental Notice Law Permanently Enjoined

Current Status: On May 12, 2000, the Florida legislature's second attempt to require parental involvement for minors seeking abortions was struck down by a state court. The law was found to be unconstitutional by Judge Terry P. Lewis, who explained that, "[The law] sends the message to the hypothetical 13-year-old - if you make the choice we want you to [i.e., not to have an abortion], we will leave you alone. If you don't, we are going to make it more difficult for you to exercise your choice. This is exactly the kind of government interference into personal, intimate decisions that the privacy clause protects against." The ruling is on appeal to the state court of appeals.

Background: Florida's parental notice law has been blocked since July 26, 1999, when Judge Lewis issued a temporary injunction. The law sought to require physicians to notify at least one parent or legal guardian of any young woman seeking an abortion at least 48 hours before the procedure is performed. Young women could seek a court order authorizing the procedure in lieu of having her parents notified. Penalties for violating the law included loss of the doctor's license to practice medicine.

The first Florida parental involvement law (which required parental consent) was found unconstitutional by the state Supreme Court in 1989 on the grounds that the state constitution extends the same right to privacy to young women as it does to adult women. This decision joins several other state court decisions recognizing that parental involvement laws fail to serve any valid state interest. Currently, courts in seven states have blocked parental involvement laws.

Plaintiffs in North Florida Women's Health & Counseling Services, Inc. v. State of Florida, No. 99-3202 (Leon County Ct. May 12, 2000), include 12 abortion providers and clinics, as well as women's rights groups from across Florida. They are represented by Bebe Anderson and Julie Rikelman of the Center for Reproductive Law and Policy, local cooperating attorney Charlene Carres, and Dara Klassel of the Planned Parenthood Federation of America.

-Jon Weiss

Correction
In the May RFN, in the story on page 4 regarding mandatory wait laws, the counselor quoted is affiliated with the "Clinic for Women" in Indianapolis, Indiana, not "A Women's Choice" health clinic.