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Abortion Legislation in New York State: What Really Happened, and What Can Be Learned From It by James Clapp
The basic human right to limit one's own reproduction includes the right to all forms of birth control: to contraception, including sterilization, and to abortion. We therefore oppose all legislation and practices that restrict access to any of these means of birth control,
Statement adopted by National Organization for Women (March 22, 1970); Zero Population Growth (Board of Directors, September 30, 1969), National Association for Repeal of Abortion Laws (Board of Directors, September 27, 1969): New Yorkers for Abortion Law Repeal (September 24, 1969), Emphasis supplied.
The recent change in New York state's abortion laws has met with widespread, but largely unwarranted, praise. The enactment of "the nation's most liberal abortion law is certainly a pleasing indication of the speed at which public and legislative opinion is progressing. The fact that the New York abortion bill was not compromised any more than it was may be a tribute to the militance of some proponents of abortion law repeal, who fought as hard as they could to prevent compromise. But the fact that a compromise bill was passed, rather than a repeal bill, is the result of divisions and misunderstandings within the abortion movement, from which campaigners for repeai in other states may be able to learn some valuable lessons. The complete story behind the amendment of New York's abortion laws will probably never be told. Certainly it would fill a book, and would make dramatic reading. It would include the tragic fates of legislators like George Michaels and Clinton Dominick, who lost their seats because of their well-meaning but misguided support for retorm. Enough of the story can be told within the space limitations of this article, however, to show that these men lost their seats in vain-that what actually happened in New York was a setback for the cause of abortion law repeal. What the Amended Law Says As everyone knows, to repeal a law means simply to remove it from the books. To repeal abortion laws, then, means to remove from penal codes, medical codes, codes of criminal procedure, and so on, all provisions that make abortion subject to special restrictions, penalties, or procedures beyond those that apply generally to all medical practice. The amended New York law, which has been described over and over as "rep by people who evidently do not remember what the word means), contains no less than sixteen separate sections making such special provisions for abortion. There is no space here for even a rough outline of these provisions, only the two most talked-about will be described. One key restriction is that only licensed physicians may perform abortions. This comes at a time when paraprofessionals are being trained in increasing numbers to take over simple medical tasks from our overworked doctors. It also comes at a time when abortion technology has advanced to such a point that even Alan Guttmacher, MD, President of Planned ParenthoodWorld Population and hardly a radical on the subject of abortion, has been quoted by The New York Times as saying, "The operation really isn't that complicated. In fact, it doesn't usually require a physician." By ruling out the possibility of efficient, low-cost clinics, stafted by paramedical specialists supervised by physicians and using modern techniques (like the aspirator), this restriction keeps the availability of abor. tion down and the cost up-with the obvious result that large numbers of women will continue to bear unwanted children.
$.20 (8 for $1)
Another restriction is a gestational time limit on abortion.
If we don't act, the courts wilt. ... The cases in court
in New York, and that will be a state of legal anarchy! And during final Assembly debate on the bill he pounded the message home:
Are we going to establish a sensible, rational, humane
on abortion? Ironically, this man is viewed as something of a hero, for his sponsorship of this bill, by many people who supported the concept of repeal and who would have been delighted to see a feder, al court "completely eliminate our laws on abortion," so that abortion could be treated just like any other medical procedure. Their view of him might be somewhat different if they recog. nized the relationship between legislation and litigation, and the way in which Mr Leichter exploited this relationship to gain
Copyright 1970 by James Clapp. All rights reserved.
their sco. Furthe neid parte concelother
Abortion Legislation in New York State : page 2 support for his bill-which killed the court cases and ruined New York's chances for achieving repeal this year. Although these particularly promising cases are now dead, this fall the Supreme Court will almost certainly hear similar cases from other states, perhaps along with such cases as the Vuitch case (Washington, DC) and the Babbitz case (Wisconsin). The latter cases, unlike the major New York cases, both arose from ariminal prosecutions, and therefore are somewhat narrow in their scope, attacking only those portions of the law that were violated. Furthermore, while lower-court decisions in both of these cases have held parts of abortion laws unconstitutional, they have both upheld the concept that the state may impose restrictions that do not apply to other procedures (such as the licensed-physician requirement), and they have both implied that a gestation limit might be justifiable. Therefore, unless the Burger Court goes beyond the lower-court rulings, these cases will not result in such sweeping decisions as we might hope. Nevertheless, there is considerable reason for optimism that the Supreme Court will, at least, uphold the lower-court rulings, with the result that the abortion laws of all those states lucky enough not to have "reformed" their laws will be declared. unconstitutional. The task of repealers in those states will then be simply to provent the passage of any new abortion bill short of total repeal, since a bill with any restriction whatsoever would be a step backward. Meanwhile, those of us in states with "liberalized" laws will be stuck with our laws, and will be having an extremely hard time trying to get them repealed. (Note: The District of Columbia law being challenged in the Vuitch case is already more liberal than New York's law is, in one respect. Rather than requiring that abortions be performed by licensed physicians, it requires only that they be performed "under the direction" of licensed physicians. Of course, this would still restrict the use of non-prescriptive abortifacients, when they are developed, just as the Massachusetts law requiring prescriptions for contraceptives-recently declared uncons titutional-restricted the use of contraceptive foam.) Loron: Since a state that passes any abortion bill short of total repeal is virtually certain to be left behind when the Sup reme Court acts, a position opposing all legislation with any restrictions on abortion is clearly just a common sense policy. even though it sounds radical and idealistic. While efforts to achieve genuine and total repeal of abortion laws should obviously be continued and intensified, every move to pass any bill short of repeal should be firmly opposed. Politicians and Pressure Groups
who naturally encouraged them to water down their bill. This they did by adding a subtly
worded clause that restricted the performance of abortion to licensed physicians. It was some time before the chief sponsors of this newly. compromised abortion bill deigned to let their supporters-and even some of their co-sponsors-know that the bill had been changed, and even then they expected everyone to go right on working for their bill, just as enthusiastically as if it were repeal. The function of pressure groups, in their view, seems to be to rally to the support of any bill that legislators choose to offer them. (One wonders why pressure groups are necessary at all, if their function is simply to support bills that legislators already approve of anyway!) When the state repeal group (New Yorkers for Abortion Law Repeal), and a large northeastern regional coalition of women and women's groups (the Congress to Unite Women), along with the board of directors of the New York Chapter of NOW, declared their opposition to the compromise bill, its sponsors seemed hurt and surprised that these groups would only support the legislation their members wanted, and would not support legislation that would destroy the court cases that might result in repeal. The bill's sponsors tried to convince us that we should not "confuse" the public by publicizing the contents of the bill, which they insisted was a "repeal" bill despite the new clause. Assemblywoman Constance Cook, the bill's leading sponsor, personally assured us not only that the new clause did not constitute a compromise, but also that it was positively the last compromise she would allow in her bill. As it turned out, the bill was rewritten-with Mrs Cook's bless ing-twice more after that, and both times significant compromises were added to it. In fact, on the floor of the Assembly a member of the Codes Committee (through which the bill had passed) announced-to Mrs Cook's manifest consternation and embarrassment-that she had actually gone to that committee and submitted proposed amendments, including the gestation limitation, with a promise to support them. And this had happened after the state Senate had already passed a version of the bill without such a time limit! (Mrs Cook evidently was led to believe that such compromises were "necessary to get the bill out of committee," and was more interested in getting a compromise bill passed than in standing up for repeal and in preserving the court cases that would probably have led to repeal.) And yet this series of compromises had many supporters, not only among the opponents of repeal, but among people who had advocated repeal. Some of these "repealers" simply were not really that eager to repeal abortion laws, and were just as happy with reform. Many, however, were citizens who were playing at politics. These would be politicians were anxious to prove that they know When To Compromise which seems to be whenever a politician wants them to do so. In reality, of course, one never gets what one wants from politie cians, in such a sensitive area as abortion, except by refusing to compromise. A politician will always compromise on abortion just as much as supporters of abortion change allow. In the case of New York state, it national and local citizens' groups interested in abortion, including such groups as the State Council of Churches and the Civil Liberties Union, had presented a united, uncompromising front, and had insisted that they would countenance nothing less than repeal, repeal is exactly what we would have in New York. The state repeal group, realizing that repeal was the only legislation that the entire abortion movement could ever unite behind, strove quietly for months to encourage unity among pressure groups, before at last announcing publicly its opposition to the bill. But too many self-styled politicians in other pressure groups decided only to "pressure" for what the legis. lators were willing to give them at every stage of the game, and is
A basic principle of representative government is that it should respond to, rather than dictate to the citizens. The function of a political pressure group in such a system is to convince legis lators to work for the goals desired by the members of the group. These are simple concepts, but somehow they got lost in New York State. In 1969, at the instigation of the National Organization for Women (NOW), a repeal bill was introduced in the New York State Assembly. This was the first, and is possibly still the only. genuine abortion law repeal bill ever introduced in any state. Although the legislature and the media that year generally ignored the repeal bill and devoted their attention to a traditional "reform" bill (which was finally defeated), the existence of a repeal bill made it easier to publicize the difference between retorm and repeal, and to build wide support for repeal. Before the 1970 legislative session even began, the sponsors of the 1969 repeal bill, not realizing the extent to which public and legislative opinion had moved forward in one year, began to consider compromising the bill. Rather than consulting the groups that had been working hard--and successfully-to rally support for their repeal bill, they consulted other politicians,
supported all four successively watered-down versions of the abortion ball without so much as a suggestion that people would preter repeal-whether through the legislature or through the courts-to these compromises. Meanwhile, since Mrs Cook refused to change her bill back to repeal (with many groups supporting her compromises, there was no political advantage to be gained from doing so), an effort was made to induce other legislators to introduce a complete birth-control repeal bill one that would repeal not only abortion laws but also New York's anti-contraception law. This effort very nearly succeeded, but the sponsors of compromise finally managed to dissuade those legislators who had agreed to sponsor the real repeal bill Perhaps if there had been a public fuss about the compromises immediately, instead of attempts to work diplomatically behind the scenes, the effort to stave them off would have been more successful Part of the problem with some pressure groups is that, rather than leading politicians, they are led by politicians. One national association, theoretically committed to repeal, has as its president a politician with close political ties to many of the sponsors of the reform bill, and one suspects that it was partly because of this that the association in question was so quick to assure Mrs Cook that they would support her compromise bill. It is obviously dangerous for any group that intends to exert political pressure on a non-partisan issue (which abor. tion obviously is) to have partisan politicians among its policymakers. And it is virtually impossible for such a group to exert any real pressure, or even to stand by its position, when its leaders have a clear political self-interest in compromising that position, in order to stay on good terms with fellow politicians. Lessons: Remember that the function of a pressure group is to tell politicians what to do. (Politicians will try to convince you that it is their function to tell you what to support.) Remember that the nicest and most sympathetic politician will compromise on abortion if given a chance, and only united and firm support for repeal and nothing less will keep a politician on the track. (Politicians tend to take polls which show, for example, that "65% of my constituents want repeal, but 85% want reform. So I'll support reform." Such a poll really means that 65% prefer repeal to reform, while only 20% prefer reform to repeal. But since most of those who prefer repeal indicate that they will settle for reform, the politician has no reason to support repeal.) Start pressuring all those legislators who say they are sympathet. ic to repeal acwally to introduce repeal bills, if these politicians realize that we intend to demand repeal, and that we are not interested in their pseudo-repeal bills, they will begin to respond to us.
On the federal level, urge Senator Robert Packwood to improve his 1970 abortion bill, which at present states only that "Any physician is authorized to perform... an abortion." Finally, be wary of a pressure group in which politicians hold key positions-even if it is your own group! (We need politicians, and we value their advice, but we must guard against their proclivity for compromise.) The Media The news media in New York seemed intent upon seeing abortion simply as a two-sided issue either you were for the "reform" bill for the "repeal" bill-the terms were used interchangeably) or you were against it. It took constant emphasis-news conferences, letters, massive demonstrations to make even the most receptive news media aware of the distinction between reform and repeal, and the fact that many people were against the former but for the latter. The New York Times, however, was hopeless. As the newspaper of record. The Times can afford to be sloppy in its reporting whatever gets printed in The Times is history, whether it happened or not. (For an analysis of how the media create history, see historian Daniel Boorstin's The Image. See also George Orwell's 1984.) The cavalier attitude of The Times is best summed up by an interchange with one Times reporter, to whom it was suggested that the issue of paraprofessionals in abortion was news worth covering, since it was something that had not yet received much coverage but that more and more people would be talking about. She replied testily, 'The reporters and the editors of The Times will decide what is news, and if you think you know better than they do why don't you just try to get one of those jobs?" Lessons: Keep plugging away at the media, through letters, delegations to editorial offices, news conferences, and demonstrations, to make them understand that, in view of the activity in the courts and the nature of politicians, it is self-defeating to support even the most liberal legislative "reform", and that you support only repeal. Set an example in your own newsletters, leaflets, and speeches, never referring to a bill as repeal unless it really would remove all special abortion restrictions from the books. Always make it clear that what happened in New York, or Alaska, or Hawaii, is not what you want in your state. "Implementation" It is ironic to talk about "implementing" a set of legal restrictions, but many people and agencies in New York that never took the remotest interest in working for abortion law repeal
Statement of Purpose: New Yorkers for Abortion Law Repeal, recognizing the basic human right to limit one's own reproduction, is dedicated to the elimination of all laws and practices that would compel any woman to bear a child against her will. In particular, it seeks the repeal of New York State's abortion laws, and it opposes legislation that would merely extend grounds for lawful abortion.
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The immediate situation might not be dramatically different if we had repeal. But the door would be open to efficient service for all women who need abortions, through the training and use of paramedical specialists, and through the provision of late abortions when necessary. Repeal is certainly only a first step to making abortion available, but it is an essential first step. The opponents of abortion know this, and they have so far been successful in forestalling repeal by rallying support for compromises and "reforms." The spectacle of repealers joining with their enemies, to pass bills that prevent repeal, must end! And it can end, and it will end, when repealers realize that their strength lies in uniting, not with opponents of repeal, but with each other, and not to support compromises, but to fight them.
Abortion Legislation in New York State : page 4 are now suddenly concerned about "implementation" of the new law. Very briefly, the story is this: New York City municipal hospitals apparently are genuinely trying to provide abortion services as efficiently as possible within the limits of the law, although they do not pretend that they will be able to meet more than a fraction of the demarld. Private hospitals in the New York City area, except for those that are tooling up specifically to make a financial killing in the new flesh market, are not trying so hard. Women typically report that their doctor wants $350, and the hospital wants anywhere from $250 on up-cash in advance. Doctors and hospitals in the rest of the state seem often to be acting as if the abortion law has not changed at all. Citywide abortion referral services have been set up, in an att empt to coordinate requests for abortions. The services are swamped. Profit-making referral services are springing up to arrange abortions in profit-making hospitals, at simply appalling cost to the patient. ($600 to $900 is the typical price.) The State Medical Society, appointed state and city medical bureaucrats, and the hospitals themselves are busily imposing more special restrictions on abortion through formal and informal codes over which the people, and even the vast majority of doctors, have no control whatsoever. These include requirements that abortions be done only in hospitals or in clinics with artificially high "standards" that only profiteers could meet, requirements for committee approval of abortions, and so on.
Published by, and available from, Now Yorkery for Abortion Low Repool, Box 240, Now York City 10024 (212) 799 0620
reprinted in part from. The ZPG NATIONAL REPORTER
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Some Good News ... and Some Bad News
The first wave of excitement and relief that the US Supreme Court had fin-
But as many abortion activists began ter 24 weeks to be a procedure meant to
Besides this, the state cannot impose
their husband's consent, by implication
It is fascinating, though, that on the
suddenly reserved judgment: no one had
asked them about whether abortion could
ical advisor", and while Georgia does re-
cy; in fact, Georgia has allowed abortion WHAT THE COURT SAID
At any stage not only for life and health
but in cases of rape and threatened fetal In establishing a right of privacy in
deformity, and so could be made even abortion matters, the court immediately more restrictive under the court's ruling. limits that right to such a degree that So could a new Texas law limit abortions states may still make it much less pri
to doctors only. vate than other medical decisions. The
What do these "compelling" state incourt asserts a compelling" state inter terests in protecting us and in protecting est in protecting" (1) women's health potential life imply for closely te lated and (2) "potencial life". Never do they health issues? First, if the reason the Aexplain just what compels these special
bortion environment can be restricted interests to take precedence over a wom
after the first trimester is that these aan's right to decide whether to abort or
bortions currently appear to be as dangerde liver. But they do announce in stentor
ous as childbirth, the growing interest in ian tones that laws may impose these "in
midwifery, self-help, and at-home delivery terests" more and more heavily as prego
could be cut short by a ludicrous but leg. nancy progresses.
ally proper requirement that no one can In the first trimester of pregnancy
plan to have a baby anywhere but in a (about 12 weeks - though never capable
medical facility or without a physician to of precise definition because conception
de liver it. Obviously, women who suddencannot be pinpointed), the court finds
ly deliver in the proverbial taxicab could that, because statistically the safety of
not be subject to arrest, provided the abortion is greater than that of continue
driver's intended destination was a hos ing to delivery, the state may at the most
pital!) Beyond this, it means that we must require that a physician perform the ab
work against all advances in obstetrical ortion. This means that in the many states
safety, for fear that our relatively unrewhere self-abortion is legal under certain
stricted "right" to early abortion would conditions, and in the 31 states where no
be chipped away if having a baby becomes special ban on paramedics is on the books
safer than an early terminar ion.
Since the current state of technology
is a shifting foundation for allowing wom-
en to have abortions, we have every rea
son to be, like Chief Justice Rurger,
"troubled that the Court has taken notice
of various scientific and medical data in
reaching its conclusion." And, of course,
the Court accepts and reinforces in its not go beyond this key restriction.
ruling the dubious theory that the original In the second trimester, when relative
English and US laws against abortion risks begin to draw even with those of
were enacted to protect women. Unfortunchildbirth, the state may also step in and
ately, even those challenging the laws require that all procedures be done in li
use this argument. (For a fuller examinacensed facilities. Surely most mid-prege
tion of these questions, see pp. 271-4 in nancy abortions will be done in hospitals
Sisterbood is Powerful.)
It will also be necessary to oppose for some time to come; but again, the po
the advances in fetology and pediatrics tential of improved technologies can be
that would help women who want a child quashed by state rules. And other health
but who cannot now go to termi as both preserving" qualifications might also be
welcome and unwelcome fetuses are fixed into law, again on this procedure
able to be kept alive outside the uterus as on no other.
earlier and earlier by more and more
sophisticated technology, possible legal
challenges to the court's fuzzy, time
bound definition of "viability" as the dangered by continuing to term. (Although
point" at which potential life" may media reports have called this stage the
take precedence over our needs would be "last 10 weeks", the court says that it
come more and more likely to succeed.
The court defines "viable" to mean
"potentially able to live outside the
mother's womb, albe it with artificial terest in "protecting" "potential life"
aid.") And who can say how quickly. (as though sperm, ovum and l-week em
"artificial aid" may push viability"
If people are to be protected against
27 JAV 1973! more dangerous to themselves than other courses of action, surely we cannot really expect a spate of crank legislation to farbid skiing, driving a car, or - especially for women - leaving home after sundown? People could be forced to seek. medical care for every ailment not simply compelled to be vaccmated, quarantined, or otherwise cooperate in stopping contagious ailments. These absurd extensions lead to an examination of who is being protected in this ruling - and why:
(1) If this decision had been made about some area of law that deak with men as well as women, the notion that the state could simply decide to protect a person would surely not have been so blandly asserted. The idea that women should be protected is so ingrained in a sexist culture that only a very feeble racionale for it was found necessary in this ruling. Long observation teaches us that this special protection is almost invariably based not on a real concern fa our well-being as a utonomous persons but on a desire to exert control over our behavia. Rather than leaving us to take responsibility for our own decisions, making sure that we can find out about the possible consequences of various decisions, and acting to make various courses of action less fraught with risk, the state instead has preferred to forbid us to act, even when we have a reason for doing something "dangerous" that makes sense to us.
Thus, for instance, the problem of rape will not be solved by telling women to refrain from moving about in the world, a by forcing us to protect ourselves with special weapons; but rather by disclosing where and when rapists tend to operace now and by trying to curtail che behavior of those who do the raping (fighting the rape mentality, putting rape under the general laws of assaule, enfarcing these laws, and so on),
In the same way, should the state not make it possible for us to know the consequences of various decisions we may make about our pregnancies and then leave us free to take whatever course of action we find most suitable, while work ing with us as health consumers to make all such courses as harmless to us as possible? We are already free not to seek prenatal care nor other medical care fa noncontagious diseases, as noted above; in many states we are even legally free to attempt suicide. Clearly, the state would seem to have a logical interest in "protecting" our health and restricting our medicul decisions only where we may otherwise inflict harm on someone else. And in this distinction lies the real meaning of why we are still being protected out of our full rights in the abortion area:
(2) The state's real interest here in protecting our health is actually an extension of its other compelling interest": protecting potential life - not in keeping us from harm, since the existing body of general medical laws and practic es can be relied upon to safeguard us (or at least can be challenged by us without special attention to one procedure), We are subjects of special control not because of our own value as individuals but be. cause we harbor fetuses In other words, "someone else" is involved in our decision-making and the state may force us
and James Clapp by Lucinda Cisler
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'PROTECTION' FOR WHOM?