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Whose Rights? Other jurisdictions have reframed abortion debate to focus on the status of the fetus

At no time in the more than three decades that abortion has been front and center on the political landscape has the issue been more contentious. With the recent appointment of conservative U.S. Court of Appeals Judge Samuel Alito to fill the U.S. Supreme Court vacancy left by Justice Sandra Day O'Connor, a great deal of concern has arisen about the future of abortion in the United States, and in the state of Illinois as well.

Alito's record on abortion suggests he may not be supportive of a woman's right to choose. His views seem in contrast to those of O'Connor, who is known for seeking a middle ground in abortion-related cases. Alito's position will likely be clarified, as the Court, under the leadership of new Chief Justice John Roberts Jr. has agreed to consider whether a congressional ban of so-called partial-birth, or late-term, abortions is constitutional. 

Meanwhile, last month, South Dakota's governor signed a law making it a felony for doctors to perform abortions in that state, and at least 50 new laws restricting abortion were passed in 2005 by legislatures around the nation. What does that mean for the future of abortion in the United States? Is this the harbinger that Roe v. Wade is soon to be overturned?

If Roe, the 1973 U.S. Supreme Court ruling that legalized abortion nationwide, is overturned, each state would become responsible for making its own abortion policy, much the way things were done prior to that decision. Illinois, like a handful of other states, has a so-called trigger law in place that may have the effect of prohibiting abortion if, and when, Roe is overturned. The language of the Illinois Compiled Statutes states that if decisions such as Roe and Planned Parenthood v. Casey "are ever reversed or modified ... the former policy of this State to prohibit abortions unless necessary for the preservation of the mother's life shall be reinstated."

What about the mother's health? 

That question would be key for state legislators in deciding how states, including Illinois, should respond if Roe is overturned. 

Still, central to the contentiousness over abortion is the status of the fetus, which has provided fodder for political disputes for the 30 years since the landmark Roe ruling. The Court made clear that, legally, a fetus is not considered to be a person, reasoning that: "The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution. ... [I]n nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application."

Yet, outside the confines of the Supreme Court, focus on the status of the fetus has caused a steady shift in abortion policy. In recent years, there have been a number of cases, laws and regulations at the state and federal levels that have sought to refute the notion that legal personhood is not established prenatally. Some of these actions have gone so far as to imbue a particular status upon the fetus from the earliest stages of development. Essentially, political maneuvers have sought to elevate the status of the fetus to that of personhood.

One example of the shift in status of the fetus is the 2002 amendment to the regulations under the State Children's Health Insurance Program. SCHIP was enacted in 1997, in part as a safety net, to provide health coverage for uninsured children up to 19 years of age whose family income exceeds state Medicaid eligibility standards but is still 200 percent of the federal poverty level. 

The program, however, does not offer benefits for pregnant women, although the child being gestated would have been eligible for SCHIP upon birth. 

President George W. Bush's administration sought to remedy this problem swiftly through the rulemaking process by redefining the term "child." The final rule, as published in the Federal Register, now defines "child" as "an individual under the age of 19 including the period from conception to birth."

The amendment, however, does little to extend or increase prenatal care benefits for pregnant women because it makes the fetus the legal beneficiary. The rule has been criticized as a political tack toward redefining the status of embryos rather than a means of extending health care access to those in need. 

Another recent example of the politicization of the status of the fetus is the enactment of fetal homicide or "feticide" laws. Such laws constitute a dramatic shift from the late 1800s when the Massachusetts court in Dietrich v. Northampton found that the fetus did not exist separate from the mother and, therefore, could not sue for injuries sustained in utero. Current fetal homicide laws make it a separate crime when an action toward a pregnant woman results in the death of the fetus. As of June 2005, at least 34 states, including Illinois, had some form of fetal homicide law, and application of these statutes is being put to the test in a number of jurisdictions. At least 15 of these state laws, including Illinois', apply to the earliest stages of pregnancy. In Illinois, an "unborn child" is defined as "any individual of the human species from fertilization and implantation until birth." This is the definition used in the 2004 federal Unborn Victims of Violence Act.

In addition, a number of actions have also been brought in state courts, which would redefine the status of an embryo or fetus. Early last year, an Illinois circuit court judge in Cook County determined that a couple could maintain a wrongful death action against a fertility clinic for destruction of the couple's frozen embryos. The judge asserted that "a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb." The decision added fuel to the debate on when life begins and was the impetus for a range of predictions regarding the future of abortion in the state of Illinois.

The amendments to SCHIP, the upsurge in fetal homicide laws and the wrongful death action in Cook County regarding destroyed frozen embryos are only a few significant examples of the ways in which politics are shaping the status of the fetus. That is significant in determining what, if any, legal rights must be afforded the fetus, which has always been at the crux of the abortion debate. If the status of the fetus is elevated — through law, policy or politics — to that of person, what, if any, effect does that have on the status of women, particularly with respect to women's choices regarding reproduction?

Pregnancy is a reproductive role unique to women, and the Supreme Court in Planned Parenthood v. Caseystated: "The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

This unique position of pregnant women creates a major challenge in resolving the abortion debate. But it was with the 1992 Casey decision that the narrowing of a woman's right to choose to have an abortion began. Casey — stemming from a challenge to the Pennsylvania Abortion Control Act, which included such provisions as spousal consent — allows states to impose restrictions on abortions so long as such restrictions are not "unduly burdensome." Since that ruling, a range of restrictions have been implemented by the vast majority of states, including such requirements as parental notification, information regarding fetal pain and waiting periods.

The current climate engenders this question: Will the rights of the unborn take precedence over the rights of women? This is a question without an easy answer and one that likely will continue to permeate our state and national politics. Consensus seems unlikely as Supreme Court Justice Harry Blackmun recognized at the very outset of the Roe decision. 

"One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion."

But in recent years there have been a number of cases, laws and regulations at both the state and federal levels that have sought to refute the notion that legal personhood is not established prenatally. These measures have had an impact on liberty, a right the court sought to protect in Roe. If we reframe the debate to focus on liberty rather than abortion, or even reproduction, then perhaps resolution or compromise would be possible. 


States adopt new abortion laws

Of the nearly 200 abortion restrictions adopted by states since 2000, 52 were adopted last year, according to The Alan Guttmacher Institute, a New York- and Washington, D.C.-based nonprofit that researches reproductive health issues. 

None of the new restrictions were adopted in Illinois. However, last year, South Dakota joined Illinois as one of four states that have laws on the books to immediately criminalize abortion if Roe v. Wade is overturned. The only other states with such measures are Kentucky and Louisiana.

And, in March, South Dakota's governor signed into law the first post-Roe measure making it a felony for a doctor to perform an abortion unless the procedure can save a woman's life. The action was widely expected to spur court challenge.

Seven states — Arkansas, Georgia, Indiana, Louisiana, Minnesota, Oklahoma and South Dakota — enacted laws in 2005 mandating new counseling measures. 

Meanwhile, not many states expanded abortion rights; however, Montana became one of 15 states to create protected zones around abortion clinic entrances. And abortion rights advocates applauded Gov. Rod Blagojevich's order requiring pharmacists to dispense emergency contraceptives.

Most of the abortion-related measures now under consideration by the Illinois legislature center on Blagojevich's order requiring pharmacists to fill prescriptions for Plan B, the so-called morning-after pill. Several bills are under consideration that would allow pharmacists to refuse to dispense emergency contraceptives for reasons of conscience.

                           The Editors

Nanette Elster is vice president of Spence & Elster, P.C., a Chicago-based firm devoted to infertility law. As an adjunct instructor, she teaches courses in bioethics, genetics and the law, public health law, and women's health and sexuality at the University of Illinois at Chicago's School of Public Health and at DePaul University in Chicago's Law School and School for New Learning.

llinois Issues, April 2006

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