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The American way of life

As the supreme court prepares to endorse new restrictions on abortion, Ann Bradley looks at the issue of the unborn in the USA

In 1980, Ronald Reagan made a presidential pledge that he would appoint to the US supreme court justices who would 'respect the right to all life in their decisions' - in other words anti-abortionists. Twelve years later America is suffering the consequences. The supreme court is now packed with self-confessed reactionaries who claim to respect the life of the unborn child, and oppose women's right to abortion. Out of nine justices only two, John Paul Stevens and Harry Blackmun, have a record of supporting liberal abortion laws.

Women's rights campaigners are worried that the supreme court is determined to over rule the constitutional right of a woman to abortion in the early months of her pregnancy. And they fear that the impending judgement on Pennsylvanian law may provide it with the chance it has been waiting for.

Please Mom, may I have...?

In July, the supreme court will deliver the verdict on a battle between Planned Parenthood of South East Pennsylvania and governor Robert Casey. Nobody doubts that the ruling will effect current interpretations of abortion law throughout the USA, and nobody seriously doubts that the result will be to impose some further restrictions on access to abortion. The question is, how extreme will the change be?

The new law backed by governor Casey does not seek to ban abortion outright, but it does make it far harder for a woman to get one. The law insists on a mandatory waiting period before the operation is performed, and demands that the doctor instruct his pregnant patient on the stage of development of her fetus. Unmarried teenage girls will be unable to get an abortion without the consent of at least one parent or a judge. A married woman must provide her doctor with a sworn statement that her husband has been informed of her decision to abort 'his' child.

It is obvious that this Pennsylvania state law contradicts the supreme court decision of 1973, on which existing federal abortion law is based. In a case that became known as Roe v Wade, the supreme court ruled that the 'right to privacy...is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the state would impose by denying a woman this choice is apparent'. Too true.

However, the court also ruled that this right to privacy was not absolute and had to be balanced against the state's 'important interests in safeguarding health, in maintaining medical standards, and in protecting potential life'. It resolved this problem by curtailing a woman's right to abortion as her pregnancy progressed. For the first three months of the pregnancy her right to privacy was understood to be paramount, by the final trimester the right to life of the fetus took precedence.

US abortion law has been celebrated, especially by abortion rights campaigners in Britain, as a model of good practice. In fact, it is nothing of the kind. Women may have the right in law to abort an early pregnancy, but rights mean little if you are unable to exercise them, and the last decade has brought the systematic dismantling of state-funded abortion services in America.

Sometimes the rundown of abortion services has been accompanied by legal challenges. In 1989, a review of the Missouri state law ruled that states can impose restrictions on abortion as long as they are not 'an undue burden'. Just what constituted 'an undue burden' the supreme court declined to define, but it allowed Missouri to restrict the use of public money, medical personnel and facilities for abortion. More often, cuts in abortion facilities have passed almost unnoticed. It was not considered an issue for the supreme court when Reagan insisted that funding designated for Medicaid - the American version of a public health service - could not be used for abortion purposes.

Aborting 'the underclass'

It is unlikely that the supreme court will do as the 'pro-choice' activists fear and use the Pennsylvania case to overturn Roe v Wade. It is far more likely that the Pennsylvania case will be used to shore up the Missouri decision, allowing states to hinder women from getting abortion on request while leaving intact some, increasingly limited, abortion provision.

If Roe v Wade is overturned, individual states would have the right to ban abortion altogether. Despite the pro-life rhetoric of the supreme court, this is not what the American establishment wants. A constitutional endorsement of bans on abortion has the potential to whip up considerable public anger with possible destabilising consequences.

The majority of Americans are opposed to state bans on abortion. In April in Washington, a million people demonstrated against the Pennsylvania restrictions. The Democratic Party has picked up on this mood. All of the leading candidates for the Democrats' presidential nomination claim to be 'pro-choice', and the party has pledged to go into the election campaign with a commitment to Row v Wade on its platform. A Republican-dominated supreme court is unlikely to want to stir up the issue any more than necessary - at least until the presidential election is over.

Furthermore, even some of those who claim to be pro-life are uncertain about restricting abortion. Their horror at the rising number of abortions in the USA is balanced by a concern about the growing number of blacks, Hispanics and poor whites on welfare - those whom the authorities label 'the underclass'. The American authorities are turning to population control measures in an attempt to 'keep down the poor'. In many states welfare benefits are now linked to contraceptive regimes - you only get your money if you don't get pregnant. And in this context abortion is seen as a necessary evil.

The supreme court should have no problem balancing such pragmatic political necessities with its commitment to 'the sanctity of life'. It had no problems squaring its collective conscience with the endorsement of the recent gassing of Robert Harris, or the electrocution of Roger Coleman. Paradoxically, the only two members of the supreme court to oppose those executions were Harry Blackmun and John Paul Stevens - the two 'pro-choice' justices.
Reproduced from Living Marxism issue 45, July 1992

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