Never-ending abortion fight

April 1, 2016

Regardless of your personal stance, the statistics bear out that one in three women in the United States of childbearing age currently have had, or will have, an abortion. These are mothers, daughters, sisters, wives, lovers, aunts, grandmothers, friends, and even, ourselves – women opting to terminate a pregnancy for any myriad of reasons. Since 1973, with the U.S. Supreme Court decision in Roe v. Wade, it has been a legal decision to make. Yet since that momentous ruling was made, it has been under attack by pro-life factions both nationally and regionally.

Michigan has been a battleground state, especially since the mid-1990s, with repeated efforts by state legislators to curtail access to abortion, asserting they are protecting the infant in the womb and working to make it safer for women getting the procedures. On the other side have been lawmakers and women seeking to have their voices heard above the din, some working with Planned Parenthood, to make sure a woman's right to choose to terminate a pregnancy is her right, and not the government's.

The battle between pro-choice and pro-life factions over the last 43 years has been ongoing since at least Roe v. Wade, the landmark 1973 Supreme Court decision that determined, by a 7-2 vote, that the right to privacy under the Due Process clause of the Fourteenth Amendment of the Constitution extended to a women's decision to terminate a pregnancy. However, the court ruled, that must be balanced against the state's two legitimate interests in regulating abortions: protecting women's health, and protecting the potentiality of human life. Those are the two tenets which pro-life activists have focused on in their efforts to overturn Roe, and stop abortions from happening across the country.

On both the national and state level, the Roe ruling set up political battles which continue to this day, with 12 Michigan state legislative bills currently on Right to Life's pending state legislation agenda, from House Bill 4241, the Heartbeat Awareness Act, which would mandate a woman to hear a fetal heartbeat before having an abortion; to House Bill 4146, Late-Term Abortion Hospital Requirement, requiring all abortions after 19 weeks gestation to be performed in a hospital with a neonatal unit; and Senate Bill 287 and House Bill 5065, the Prenatally Diagnosed Conditions Act, which would create a database of “medically accurate information about prenatally diagnosed conditions, links to support groups, and information about intervention services,” to prevent women with fetuses with genetic abnormalities, including fatal abnormalities, from aborting. As Right to Life stated in a fact sheet, “This bill is an attempt to help avoid 'search and destroy' abortions,” noting that women carrying babies with Downs Syndrome, in particular, have an increased rate of termination.

“No one plans to have an abortion. Yet, one in three Americans have had an abortion in their lifetime. That's mothers, sisters, daughters, cousins, friends, who don't talk about it, but have had them. No one goes into a heterosexual relationship with the idea they're going to have an abortion,” said Lori Carpentier, president and CEO, Planned Parenthood of Mid and South Michigan.

Women choosing to end unwanted pregnancies are not a new phenomena. The first record of an induced abortion is from an ancient Egypt medical text from 5,000 years ago, in which an abortion procedure was described. There are references to abortions in ancient Greek and Chinese art and literature from the same period. A gynecological text from 100 A.D., written by Soranus, a Greek physician and writer, recorded several ways in which doctors could help women miscarry, as well as ways in which women could self-induce abortions, both for physical and mental health reasons. 

Abortion was not always illegal. There are records from around the year 1400, in Islamic society, where doctors commented on methods for utilizing miscarriage as a method for both birth control and abortion. The Roman Catholic Church did not officially condemn abortion at any stage of pregnancy until 1896, when it officially condemned it at all stages of pregnancy. Before then, its position was that abortion before the ensoulment of the fetus, which occurred at 30 days after conception, was not a sin. 

At the time of Roe v. Wade, Catholics were officially the only religious group opposed to abortion; according to Stephanie Russell-Kraft in The Atlantic, it wasn't until the late 1970s that evangelical Christians began to oppose abortion in all cases, as Catholic groups sought out allies in other religious communities to bolster their arguments and frame them in a secular context. “Over the course of 30 years, those alliances formed into a veritable political and cultural movement,” Russell-Kraft wrote, while noting that not all religious groups agree with these interpretations of the morality of abortion. A 2014 Pew Research Center study showed that adults' perception of the legality of abortion vary by their religious affiliation. Eighty-two percent of those who identified as Buddhist, and 73 percent of those who identified as Jewish, favored the legality of abortion, versus only 18 percent of those who identified as Jehovah's Witness, 27 percent of Mormons, and 33 percent of evangelical Protestants.

In the United States, Connecticut passed the first law in 1831 banning pharmacies from selling miscarriage-inducing drugs to women, and by 1900, abortion was illegal in every state. Doctors conformed, with the American Medical Association banning abortion in 1857, targeting midwives, who they asserted performed abortions, and campaigning to drive midwives out of business.

Despite bans and laws prohibiting abortions, it is known that women have always sought ways to terminate pregnancies, resorting to “potions,” herbs, black market pills, knitting needles and hangers. As access is being denied to more women throughout the country, Carpentier said women are going back to illegal means. “We know that is happening in Texas,” she said, referring to Whole Women's Health v. Hellerstedt, a Texas law currently before the Supreme Court, which is requiring abortion clinics to meet the standards of ambulatory surgical centers. Since the Texas law took effect, several abortion clinics closed, thereby limiting access for women. 

“Our Texas offices are hearing from women who are calling and saying, 'Can I put this in my vagina or take this pill?' that they are ordering from some black market place on the Internet, and they're ending up in the ER,” Carpentier said. “I think Texas should be a cautionary tale – it's scary the measures women will go to to terminate a pregnancy.”

Years ago, Carpentier said, women anecdotally used black cohosh, a flowering plant native to North American which can be used for menstrual cramps and menopause symptoms, but also as a labor inducement. “Today, they take pills, which often claim to be a derivative of 486 (ru 486, or Mifeprex, a pill which medically induces abortion),” she said. “Some (pills) do nothing – that's the best case scenario. Others do real damage. There are lots of stories of women ending up in ERs without knowing what they took.”

In a New York Times story in March, Seth Stephens-Davidowitz used Google search data to track U.S. Internet interest in self-induced abortions over time, drawing a direct correlation to spikes in searches for “how to self-abort” and “how to have a miscarriage” to times and places where there have been legal restrictions placed on abortion.

Carpentier said Planned Parenthood of Mid and South Michigan, whose parent organization nationally receives about $450 million from Congress despite Republican efforts to defund it, as well as private donations, is also seeing the ramifications of less access to abortion because of more restrictive laws in Ohio. “We are seeing that women are using our resources from Ohio, and our numbers have almost quadrupled (of women from Ohio) in the last 16 months since Ohio has beefed up those laws on abortion care.”

Ed Rivet, legislative director for Right to Life of Michigan, countered. “We heard a lot of that rhetoric in the 1980s and 1990s – it's going to cause women to die; it's going to force women into the back alleys. That was the rhetoric of the day. None of it proved true. Everything we've said and seen has been true. Women are getting less abortions.”

Yet, statistics show that each year around the world, 68,000 women die as the result of unsafe abortions.

The fact that women are getting less abortions in the state of Michigan can be traced to legislative efforts by Rivet at Right to Life, Operation Rescue, and Republican legislators who supported their repeated efforts to enact bills systematically curtailing access to clinics, forcing women to wait 24 hours to obtain an abortion, to have payments for poor women halted, enact parental consent, to prevent riders in insurance from paying for abortions. According to its 2014 Annual Report, Right to Life of Michigan received almost all of its $1.3 million in revenue from donations. The DeVos family, notably Richard “Dick” Devos, a former Republican gubernatorial candidate, is a large contributor to Republican legislators, and has funded several religious right groups, including Right to Life of Michigan.

Rivet, who traces his efforts with Right to Life to 1988, said the first big effort in the state was over Medicaid funding. “We wanted to put it before voters with a ballot proposal referendum, which the voters approved 57 percent to 43 percent,” he said. The petition was passed in June 1987 by the state House to put it on the ballot, and in November 1988, it was affirmatively passed, becoming law to prohibit using public funds to provide an abortion to a woman receiving welfare funds unless the abortion would save the life of the mother.

“That was significant for us from a policy point-of-view, as from the impact on abortions themselves,” Rivet said. “Prior to that, women could come in and get abortions with their Medicaid cards. The state was paying for about half of all abortions – about 48,000 abortions annually. We said that subsidizing in essence free abortions was disincentive for not taking preventive measures. It turned out to be true.”

He said at that time, their efforts were not about trying to stop abortions, but just not having Medicaid pay for them.

In 1990, their efforts focused on pushing for a parental consent law, where women under the age of 18 would be required to get their parents' consent in order to get an abortion. “We had to get around the veto of Gov. Blanchard,” Rivet said, who said to Right to Life, it was a very simple issue. “Parents were entitled to be involved in a medical decision with their daughter.”

They succeeded – “and the data shows for girls below 18, there was a 75 percent decrease in abortions.”

Does that mean less young women were getting pregnant out of fear of telling their parents they would need an abortion? 

Rivet believes abstinence “became fairly fashionable among some teens. Contraceptive use and education, I believe, is up, and are factors. There have also been a spate of movies, 'Juno', 'Waitress', they're stories about single women confronting unplanned pregnancies. They are reflecting a different perspective about unplanned pregnancy which is a dramatic cultural change which teenagers are seeking.”

Another legislative push, which took a greater effort, was the Informed Consent Law of 1993, where women considering abortion must be given certain information about abortion, including photographs, abortion procedure risks, pregnancy risks, prenatal care, parenting information and adoption options. Included in the bill was that a woman considering an abortion must wait 24 hours after being given the information to consider the procedure and the consequence of their action. It was signed into effect by Gov. John Engler, “because of the 24-hour waiting period,” Rivet said. 

The American Civil Liberties Union (ACLU) sued the state, with a court battle lasting five years. The law, initially Public Act 133 of 1993, became Public Act 345 of 2000, to be provided on the Internet by the Michigan Department of Health and Human Services.

“We know it had an effect on some women,” he said. “There was a decrease for a period of time.”

Rivet says a part of the equation is that for younger women who have to wait 24 hours to have an abortion and have to see an ultrasound of their fetus, it's changed the discourse. “You cannot tell a teenager today, when their identity began prenatally, they identify themselves with their first photo in their photo albums as an ultrasound – so they see their unborn child as a child,” he said. “It's hard to tell them they're not killing a baby. Their identity began as a fetus. They're the first generation to consider that, and that's a pivotal cultural change.”

The Guttmacher Institute, a non-profit organization working to advance reproductive health through research, stated that between 1992 and 1996, the number of abortions fell 12 percent; between 1996 and 2000, the abortion rate fell 5 percent. During both periods, the number of providers continued to fall.

Legislatively, Right to Life of Michigan continued its efforts to restrict abortion access as new state legislators came into office with both the Granholm and Snyder administrations. From 2000 to 2011, proposed legislation either stalled in committees, or did not successfully pass from one chamber to the other, or was vetoed by the governor. 

In 2001-2002, Senate Bill 1253 was proposed, which would have prohibited the prepayment for abortion to physicians or clinics because abortion was viewed as a commercial enterprise. Also included in the bill was a provision to delay payment until after the 24-hour waiting period, as well as language insuring that a woman was voluntarily giving consent to the abortion, and was not being coerced. The bill died in committee.

In 2002, Act 687 of 2002 passed, known as the Born Alive Infant Protection Act, which asserted the state's interest in protecting all individuals, and prescribing the same responsibilities and procedures in regard to a newborn, in essence prohibiting abortions at any stage of pregnancy. It prescribed severe criminal penalties on physicians providing abortions, including treatment for miscarriage, facing imprisonment up to life or fines up to $50,000. But the law was invalidated by Judge Arthur Tarnow of the U.S. District Court for the Eastern District of Michigan, after the ACLU sued, saying the law endangered women's health, noting that “any law restricting a woman's right to choose pre-viability of abortion must contain an adequate safeguard to protect the life and health of the pregnant woman.”

Kary Moss, executive director of the ACLU of Michigan, said at the time of the ruling, “The legislature should not be determining what is the best medical treatment for any given woman. Such decisions should be made by a woman in consultation with her doctor.”

At the end of 2002, Gov. Jennifer Granholm signed House Bill 5971, which was co-sponsored by current state Sen. Mike Kowall (R-White Lake), and former Sen. John Pappageorge (R-Birmingham, Bloomfield Hills, Bloomfield Township), both then state representatives, to prohibit prepayment for abortions to physicians or clinics because abortion services are marketed like other commercial enterprises. Transactions had to be delayed until after a 24-hour waiting period, and women had to give voluntary consent.

In 2003, the effort to ban partial birth abortions began in earnest in Michigan, the same year it was enacted by Congress. “That was a huge debate,” said Rivet. 

The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion referred to as “partial birth.” It was upheld by the U.S. Supreme Court in 2007 in the case Gonzales v. Carhart.

“There's no such act in medicine as 'partial birth' – it's something the pro-life people made up,” said Planned Parenthood's Carpentier. The term was first coined by Douglas Johnson of the national Right to Life Committee to describe an abortion where a fetus is pulled out head first, through the mother's vagina, while it is still alive, and then killed while it is partially delivered.

According to medical literature, partial birth abortion is defined as intact dilation and extraction during the second trimester of pregnancy, approximately 15 to 26 weeks, prior to viability. The U.S. law does not refer to gestational age nor to fetal viability. 

Year after year in Michigan, bills were introduced in both the state House and Senate to prohibit partial birth abortions, despite the existence of a federal law in place. In 2003-2004, House Bill 4603 passed, while Senate Bill 395 died in committee. Similar bills died in 2004-2005; 2005-2006; and 2006-2007. Numerous other bills to inhibit abortions were proposed but died in committees during those legislative years.

In the 2007-2008 legislative year, Senate Bill 776, the Partial Birth Abortion Ban, a replica of a federal law upheld by the U.S. Supreme Court, passed with the Senate voting 24-13, and the House voting 74-32, in favor. Gov. Jennifer Granholm vetoed the bill on June 13, 2008. A subsequent House bill, 4613, which asserted that the state “must preserve and protect the life of the mother and child”, with then-representatives Chuck Moss (R-Birmingham, Bloomfield Hills, Bloomfield Township) and Marty Knollenberg, current state senator (R-Birmingham, Bloomfield Hills, Rochester, Rochester Hills), both sponsors, died in committee.

Two House bills, tie-barred 5664 in 2008 and 4613 from 2007, with Moss and Knollenberg as sponsors, also both died in committee, which would have provided sentencing guidelines for the crime of performing partial birth abortion. 

Then, in 2011, Right to Life and legislators succeeded in passing the Partial Birth Abortion Act, and Gov. Rick Snyder signed Senate Bill 160 into law. 

The bill outlaws the practice of partial birth abortion in Michigan, unless it is determined it is necessary to save the life of the mother. 

While it mirrored the federal law, Rivet said it was necessary for the Michigan legislature to pass its own Partial Birth Abortion Law. “Federal laws can be repealed,” he said. “Federal laws are very hard to rely upon. Federal prosecutors are very busy. They are going after drug dealers, not going after an illegal abortion doctor. Also, we wanted to make a statement that we don't do that here in Michigan.”

Rivet said that the ban activated a new base for Right to Life, acknowledging that 90 percent or so of abortions occur during the first trimester of a pregnancy. 

“My experience, maybe because of my profession, was when I learned about partial birth abortions, it motivated me to be more active,” Rivet said. “It may be a small number, but it got them to be more activated. We don't believe in eugenics. Doctors, most – maybe none – did them (partial birth abortions). It wasn't a quantity issue. It was that Roe v. Wade legalized abortions for all nine months for the health of the fetus. Meaning for any reason, and people did not believe us. It wasn't until partial birth came along that people believed us.

“It took me 15 years. Four bills. Two court challenges. My first effort with a partial birth effort came in 1996. It had so many iterations. That was very, very significant because of the cultural iteration,” Rivet said.

To pro-choice advocates, though, House Bill 5711 of 2012, was the worst bill passed, according to Desiree Cooper, director of community and media relations for Planned Parenthood of Mid and South Michigan. “At the time, it was the worst bill in the nation, but much worse have been passed nationally since.”

House Bill 5711 was an abortion omnibus bill which opponents said effectively banned abortion after 20 weeks, asserting that a fetus can feel pain after that point. The bill required additional regulatory requirements for facilities that perform abortions, including screening requirements aimed at making sure that no one is forcing women into having abortions, such as parents, spouses, or boyfriends. It mandated that women be given a questionnaire to inform them of the illegality of that coercion, and to have doctors determine if the woman had been coerced, or is a victim of domestic abuse before the abortion procedure could take place.

For abortion providers, it forced them to carry an extra $1 million in liability insurance if they perform five or more abortions a month, or had ever been subject to two or more civil suits in the previous seven years. It also created a new regulation that stated that any clinic that provides six or more abortions in a month, or one that advertises abortion services, would have to be licensed as a freestanding surgical outpatient facility, meaning it would require a full surgical suite, even if they didn't perform full surgical abortions. 

During the House debate on 5711, in June 2012, the discussion in the state House and Senate became particularly toxic. Oakland County Clerk Lisa Brown, then a Democratic representative from West Bloomfield, said of the hearing, “The committee room was packed with people, and they wouldn't let a woman speak. With 10 minutes left, the committee chair called for a vote. What was the rush? There were still a lot of people who wanted to speak.”

Brown asserts she did not break any rules when she was called on the by the speaker for her vote, and stated, “'I'm flattered you're all so interested in my vagina, but no means no.' Behind me were all these Republican men, and there weren't any jaws on the floor. It was all the next day, the last day before summer break...when the Democratic Floor Leader told me I was not allowed to speak. I did not think speaking about 'vagina' was any different than speaking about 'elbow.' We were talking about abortions. Where do they think it comes from?”

Former state Sen. Gretchen Whitmer (D-East Lansing), said, “Any time you take a stand as a woman, there's going to be backlash.”

In what was seen as limiting access to women, particularly rural women, noted Think Progress, “Under the omnibus bill, doctors would have to be physically present to perform a medication abortion, thus preventing a doctor from administering abortion-inducing medication by consulting via telephone or Internet.” Gov. Snyder signed the bill on December 28, 2012.

Rivet of Right to Life denies that the passage of this bill has decreased women's access to abortion. “We're not seeking to stop abortions through legislation,” he said. “It's no secret that Right to Life wants abortion to not exist, but we're not seeking it legislatively.”

Lynn Mills of Livonia, who works with Operation Rescue, a pro-life Christian activist organization, said she works closely as a citizen activist providing on the ground investigative material to Rivet. “If I know an abortion doctor has done something wrong and violated laws, I want to pass that information on to (Right to Life) so they can craft laws, if they feel it's proper,” Mills said. “Right to Life did a wonderful job of making these clinics step up to the plate. There are still loose ends to tie up. We're never going to stop all of them. There is an underground abortion movement out here.”

“In Michigan, the nature of the legislature has changed because of gerrymandering,” Planned Parenthood's Carpentier said. “The Republicans are more emboldened, controlling the House, Senate, and governor's mansion. In a couple of instances, Snyder has denied them their goals. They thought Snyder wouldn't be a stop gap. He has proven to protect a woman's right to choose in a couple of instances, such as when he vetoed, after he had worked hard reworking the Blue Cross Blue Shield insurance bill – it was his bill – when they tacked on the abortion rider. That's something, an abortion rider, it doesn't exist with insurance. And he vetoed that legislation even though it was his legislation.

“This governor has vetoed very little, so this was a big deal on his part,” Carpentier said, noting that legislators passed the abortion rider without his signature as a referendum. “But he took a stand.”

Ironically, she said, the impact on Michigan women is debatable, because many insurance companies don't offer it, and is not available for self-insurance policies. “For people who may be choosing early gestational coverage, it may be no big deal,” she said. “But for a family who may discover a fetal anomaly later in pregnancy, and some (anomalies) are not compatible with life – it's no longer a $500 procedure, it's many thousands of dollars. It's a pretty darn expensive procedure in a hospital.”

Carpentier referred to bill 183 of 2013, which passed after Snyder's veto, despite Whitmer's efforts in the Senate, telling the personal story of having been raped 20 years before in an effort to persuade her fellow senators to understand the importance of leaving abortion accessible and available to women. Whitmer said, “It was very depressing the next morning. I had many Republican senators tell me 'I wish I could have voted with you, but I had to vote with my party.' Then my staff said our phones, e-mail, Facebook, are blowing up. People really supported me and my story. I could at least see the value talking about these issues. Rape is sadly not talked about – but it happens to so many women. Same with abortion. At least we got the conversation going.”

The conversation does continue, both in Michigan, and around the country. Besides limiting access, the pro-life movement's focus is now on the use of fetal stem cells, or as a pending Senate Bills 564 and 565, and identical House Bills 5086 and 5087, refer to it, the Fetal Organ Trafficking Ban, which would prohibit the exchange of any form of compensation for fetal tissue or organs.

“I was one of the chairs of the stem cell research, and I saw the Right to Life lies on scientific research,” said Whitmer, now a University of Michigan lecturer and attorney in private practice. “You know they'll do anything to accomplish their goals.”

Paige Comstock Cunningham, executive director of the BioEthics and Human Dignity Center in Illinois, said she is opposed to the use of fetal tissue in research “because the primary source is abortions.”

While acknowledging aborted fetuses is a good source for stem cells, “it is not ethical.” Her primary concerns are “to respect the fetus. You cannot treat it any different than any other child. You cannot take a life and then give away a body. Those participating in abortion are morally disqualified from donating to research because they're the ones responsible for causing the fetal death. It turns the body and body parts into a commodity.” She said there also better, more ethical options for sources, such as umbilical cords, core blood, and baby teeth. “I'm not opposed to medical research, I just want it done ethically.”

Both sides are awaiting the ruling on Whole Women's Health v. Hellerstedt, a case which was heard in front of the U.S. Supreme Court in early March, the first major abortion case in nearly a decade, centered around the key question of, does a Texas law that forces abortion clinics to meet stringent new standards, in the name of shielding a woman's health, impose an “undue burden” on a woman's right to terminate her pregnancy. One of the provisions in the law at issue requires abortion clinics to meet the standards of ambulatory surgical centers. Typically, abortions in early pregnancy are performed in settings similar to doctor's offices. The law also requires doctors to obtain admitting privileges at local hospitals, in case of emergency.

Supporters of the Texas law say the invasive nature of abortions require that they must be done in hospital-like environments, and hospital privileges for doctors is just a common sense measure to protect women. 

Rivet, of Right to Life of Michigan, said that while he has not studied the Texas law, “The argument is not to hold them to a higher standard, or to make (a clinic) into a mini-hospital, but to hold them to the same standards as any other outpatient facilities. That was our mantra all along.” The impact upon some Michigan laws and pending legislation will likely depend upon the Supreme Court decision.

As for many women having to travel, sometimes great distances, in order to obtain safe abortions, Rivet said, “There's this idea of specialty medical services. Why isn't this in the same category? That you have to travel for medical procedures. Well, you have to travel for good care.” 

He said that in Michigan, an abortion provider does not have to have hospital privileges, although there is a requirement that they have a transfer agreement for any necessary emergency care with a local hospital. “That's a standard no one can challenge,” he asserted. 

When the law changed in Michigan in 2012, Rivet said, “The impact was immediate. There have been many clinics we know had been below standards. All those bad operators went out of business. In some cases, there had been elderly physicians who had not updated their facilities, who didn't want to update their facilities or standards, and they just closed.”

“There are true believers, religious believers. But there are individuals who are interested in controlling women and then disappearing once a child is born,” said Whitmer. “They are advocates for the unborn, but not for the born.” ­

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