The Last Abortion Clinic
Written, produced and directed by Raney Aronson-Rath
Sen. ARLEN SPECTER (R-PA), Judiciary Committee Chairman: Judge Roberts, I do not intend to ask you whether you will overrule Roe versus Wade. I will ask questions about precedents as they bear on Roe versus Wade.
ANNOUNCER: As a new Supreme Court takes shape, the fate of Roe v. Wade has drawn headlines once again. But for the last decade, a different abortion battle has been raging.
KATHRYN KOLBERT, Reproductive Rights Attorney: We've had 20 states pass 27 bills that directly restrict abortion access.
ANNOUNCER: Tonight, FRONTLINE examines the abortion wars—
ABORTION CLINIC OWNER: Women are being hurt, women are suffering, and no one's speaking out.
ANNOUNCER: —being waged in states throughout the country.
BARBARA BEAVERS, Center for Pregnancy Choices: There is only one abortion clinic left in Mississippi, and we are hoping that that won't be here long.
CLINIC PROTESTER: I love you, Mama! Please let me live! I want to see your face, Mama!
NARRATOR: On a hot July day, in Jackson, Mississippi, over a hundred pro-life activists have gathered outside the city's abortion clinic. The rally was organized by Pro-Life Mississippi, the most powerful right to life group in the state.
TERRI HERRING, Pres., Pro-Life Mississippi: One of our slogans for Pro-Life Mississippi is to make Mississippi the first abortion-free state in the nation.
NARRATOR: Terri Herring is the group's president. Since Pro-Life Mississippi was founded more than a decade ago, they've helped close down five abortion clinics across the state. Years ago, the group moved their offices to this building in Jackson, right next door to an abortion clinic. Last year, that clinic closed its doors for good.
TERRI HERRING: People have persistently and continually said that we do not want abortion in Mississippi.
NARRATOR: Herring's group has now focused their efforts on this clinic, the Jackson Women's Health Organization, the site of today's rally and protests every single day that it's open. It is the last abortion clinic in the entire state of Mississippi.
TERRI HERRING: People are faithful to be there when the doors are open, and it makes it very uncomfortable. And I think it should be uncomfortable to go in someplace and kill your unborn baby.
NARRATOR: With their success in Mississippi, Herring and her group are seen as leaders in the pro-life movement, and their tactics reflect a dramatic change in that movement's strategy. During the 1980s and early '90s, the pro-life movement became known for the actions of extreme groups who firebombed clinics, held violent protests, harassed, and in some cases, even killed doctors who performed abortions. While a few extremists still pursue these tactics, Herring's group in Mississippi distances itself from them.
TERRI HERRING: The pro-life movement has been perceived as being very radical. I think it did alienate people, and so I think we've had to backtrack from there and say, you know, we've got to do a lot more educating. We've got to do a lot more lobbying. We've got to do this legally, the best way that we can.
NARRATOR: And that's exactly what Herring has done. Far from the sidewalk battles at abortion clinics, Herring wields her most effective power in the halls of the state capitol. She's considered the most powerful pro-life lobbyist in the state.
Lt. Gov. AMY TUCK (R), Mississippi: Individuals such as Terri Herring and others across our state help to energize members of the legislature. It is extremely helpful and enlightening to have information from people who believe very strongly in the pro-life issues.
NARRATOR: Amy Tuck is the lieutenant governor of Mississippi and is a strong pro-life advocate. Last year, Mississippi enacted more pro-life legislation than any other state in the country.
Lt. Gov. AMY TUCK: It's passed overwhelmingly, and it's bipartisan support. It's Democrats and Republicans. It's the House of Representatives and the Senate. Mississippi is truly a pro-life state.
TERRI HERRING: Thank you, Katy. Praise God. We thank you, Lord, that this clinic is closed down, that the last remaining abortion clinic in Mississippi cannot stand before the living God.
NARRATOR: Mississippi's success in regulating abortion has put them at the forefront of the latest battleground in the abortion wars.
TERRI HERRING: —and we just thank you, Father, for blessing—
NARRATOR: This is the story of that battleground, and it begins 33 years ago, far from Mississippi, in the halls of the Supreme Court, with the landmark decision Roe v. Wade.
CYNTHIA GORNEY, Author, Articles of Faith: One of the very, very biggest fights in abortion politics for 40 years has been, "What kind of deference do we give to local standards?" That's what Roe v. Wade was about. Roe v. Wade wasn't about whether abortion is right or wrong, Roe v. Wade was about whether states were going to be allowed to write their own abortion laws or not.
NARRATOR: And in that decision, the Court spoke clearly. Calling abortion a fundamental right, they imposed severe limitations on any state's ability to restrict it.
KATHRYN KOLBERT, Reproductive Rights Attorney: Roe versus Wade said that states are not free to restrict abortion or impede a woman's ability to get an abortion in the first trimester.
NARRATOR: Kathryn Kolbert is a leading lawyer in the pro-choice movement.
KATHRYN KOLBERT: In the second trimester, states could restrict abortion, but they have to do so in a way that's really furthering women's health. They can't just willy-nilly enact restrictions that are intended to discourage her decision. And in the last trimester — that is, past the point of viability — states could ban abortion as long as there was an exception for the woman's life or health.
From almost day one after Roe was decided by the Supreme Court, legislators who opposed abortion came in and tried to pass restrictions.
NARRATOR: For nearly two decades, lawyers like Kolbert were largely successful in overturning those restrictions. But in 1989, a Supreme Court decision known as Webster gave the pro-life movement a boost when four Justices indicated they were ready to consider overturning Roe v. Wade.
KATHRYN KOLBERT: What Webster did is it emboldened those who wanted to push the question. And it said to them, "OK, it's all right. There's four votes here on this Court to overrule Roe. We can pass bans on abortion. Let's do that and get the question directly before the Court."
NARRATOR: Among those emboldened to push the question was this man, former Pennsylvania state senator and long-time nemesis of the pro-choice movement Steven Freind.
STEVEN FREIND, Fmr. Pennsylvania State Senator: I'm not trying to make myself more important than I am, but whenever I ran, my races were followed nationally. I was the number one national target in 1990 of the National Abortion Rights Action League, which incidentally, I consider a very great honor.
To the surprise of absolutely no one, the purpose of this news conference is to unveil the Abortion Control Act of 1989.
NARRATOR: Pennsylvania's Abortion Control Act of 1989 challenged Roe directly, calling for restrictions on abortion during the first trimester.
STEVEN FREIND: There are five major goals to the legislation. Number one—
NARRATOR: Among the restrictions was what's known as an "informed consent" law, which required a woman seeking an abortion to receive state mandated information from her abortion provider and then wait at least 24 hours before receiving the procedure.
STEVEN FREIND: Legislation like this is a vehicle for a court to have the opportunity to overturn Roe versus Wade. If God himself came down to the nine Justices and explained to them the error of their ways and they were now 100 percent against Roe versus Wade, 100 percent pro-life, they couldn't do anything to change it until there were an appropriate case or controversy dealing with the abortion issue before them.
NARRATOR: By January, 1992, Freind's law had given the Court such a case.
KATHRYN KOLBERT: I am Kathryn Kolbert. I am an attorney with the American Civil Liberties Union's Reproductive Freedom Project.
NARRATOR: Planned Parenthood, with Kolbert as their lawyer, had challenged the law all the way to the Supreme Court.
KATHRYN KOLBERT: It is our view that the question before the Court is whether or not Roe versus Wade remains the law of the land—
NARRATOR: The case would be known as Casey, named after the Pennsylvania governor who had signed Freind's bill into law.
KATHRYN KOLBERT: —whether all women in this nation have a fundamental right to choose abortion.
STEVEN FREIND: The hype back and forth was, "Could this be it? Could this be the ballgame?"
[March for Life rally] We are now on the verge of total victory, aren't we! And it may well be the Pennsylvania Abortion Control Act that puts Roe versus Wade where it belongs, and that's in the trashcan!
We were ready. We had the bill almost completely drafted to be the first state in the union to not limit or restrict, but to end the nightmare once and for all and outlaw abortion. It would have passed.
PRO-CHOICE DEMONSTRATORS: Pro-Life, your name's a lie! You don't care if women die!
KATHRYN KOLBERT: We were pretty clear that there were five votes on the Supreme Court to overrule Roe. I was shocked at what happened.
NARRATOR: The ruling was decided by a 5-to-4 vote, and neither side had won. The joint opinion, delivered by Justices O'Connor, Souter and Kennedy, crafted a middle position. They upheld Roe but changed the standard by which abortion laws would be judged. Rejecting what they called "Roe's rigid trimester framework," they established instead the "undue burden standard." A law would be invalid, they declared, if it placed "substantial obstacles in the path of a woman seeking an abortion."
KATHRYN KOLBERT: In the scheme of what could have happened, this was a tremendous victory. We thought that the Supreme Court was ready to totally eliminate protection from abortion. So we won, in the sense that that didn't happen.
[www.pbs.org: Judge Alito and the Casey decision]
NARRATOR: But what had happened would dramatically change the landscape of abortion politics.
WILLIAM SALETAN, Author, Bearing Right: People got the impression that abortion was safe, Roe v. Wade was safe. All the pro-choice people went home. But what happened is pro-lifers started to pass legislation to test what, exactly, is an undue burden? "Let's pass this bill. Is that undue? Let's pass that bill. Is that undue? And let's see where the courts draw the line."
NARRATOR: Americans United for Life is the oldest national pro-life group in the country. Headquartered in Chicago, AUL is a group made up primarily of lawyers. Their motto is, "Changing law to protect human life, state by state." Peter Samuelson is the group's president.
PETER SAMUELSON, Americans United for Life: We're always looking for new ideas that fit within the space that Casey said you can regulate abortion. We'll give advice, as pro-lifers who have thought through these issues, as to perhaps the ideal type of law that we would like to see that remains constitutional. AUL is very incremental. We want to see a law go into effect. We're not trying to get everything at once. We think we'd like to do what is possible and what the public will support.
When we find those ideas, we take them out to legislators and we take them out to allied groups that we've worked with over the last several decades. In most states, we have a variety of relationships, three, four, half a dozen relationships of legislators and allied advocates who had been working on these issues year in, year out, and we'll start engaging in the conversation with them.
NARRATOR: In the months after Casey, one of AUL's first stops was the Mississippi state legislature.
Sen. ALAN NUNNELEE (R), Mississippi State Senator: The Casey decision opened the door for us to begin to figure out, "OK, what can we do as Mississippians to reflect our values in our state laws?"
NARRATOR: Alan Nunnelee is a senior state senator and chairs the Public Health and Welfare Committee. Working with AUL, he drafted an informed consent requirement that went even further than the one in Freind's Pennsylvania law.
Sen. ALAN NUNNELEE: We required the informed consent to be doctor-to-patient, face-to-face, to include a booklet of color pictures showing pictures involving fetal development and requiring the doctor to point out to this woman, "OK this is where your child fits into the spectrum of pictures." Also, the woman had to be informed of the risks and the dangers associated with the abortion procedure.
NARRATOR: In the years since Casey, Mississippi has enacted 10 laws regulating abortion, including one of the strictest parental consent laws in the nation. It requires both parents' permission before a minor can have an abortion.
BETTY THOMPSON, Jackson Women's Health Organization: Their tactics changed. They began to see, "We have political clout now. And so while we have this power, we're going to chip away at Roe versus Wade until the law is going to be on the books but nobody will be able to access the service."
NARRATOR: Betty Thompson is the former director of the Jackson Women's Health Organization, Mississippi's last remaining abortion clinic. She now consults for the clinic part-time.
BETTY THOMPSON: Women are having the same type of obstacles placed before them in trying to access an abortion, if they need one or if they choose to have one, as they did before Roe versus Wade.
NARRATOR: Thompson says the problems with Mississippi's strict abortion regulations are compounded by a lack of access to abortion providers in the state.
BETTY THOMPSON: When we became the only abortion providers in the state, it was a heavy blow to women in Mississippi.
PRO-LIFE CLINIC PROTESTER: I love you, Mama! Please let me live! I want to see your face, Mama! Please let me live!
BETTY THOMPSON: We're the only clinic there.
CLINIC PROTESTER: It's going to hurt, Mama! It's going to hurt!
BETTY THOMPSON: So it's either go to Jackson Women's Health or go out of the state.
NARRATOR: The Jackson clinic declined FRONTLINE's request to film inside the facility. Instead, we traveled across the Mississippi border, as 60 percent of women seeking abortions in Mississippi now do, to a clinic in a neighboring state. Because of security concerns, and as a condition of our filming, we agreed not to identify the location of the clinic, its name or the names of the people who work there.
This clinic has been open for over two decades. Its owner started it in the years after Roe, when access to abortion was virtually non-existent in the South.
ABORTION CLINIC OWNER: As abortion providers, particularly in the deep South, we feel very, very isolated. One of the most difficult things about providing care out in the hinterland is that it does seem that people are very unaware of what's going on and how women are suffering.
NARRATOR: With clinics closing throughout the South, this one sees women from all over the region.
ABORTION CLINIC OWNER: The clinic serves women from approximately a 200-mile radius. Because Mississippi is so restrictive, because there's only one clinic left, we do see women traveling from Mississippi.
NARRATOR: The clinic only offers abortions three days a week. Their schedule is always full, but they can't find enough doctors willing to perform the procedure.
ABORTION CLINIC OWNER: One of the problems is that so few doctors are trained. It's not considered a part of standard medical care. And there is such a level of harassment and discrimination around doctors providing abortion care that it makes it really difficult to find physicians that are brave enough and willing to provide care.
[www.pbs.org: A national overview of abortion]
[on the phone] OK, first of all, you know that, basically, you can have the baby and put it up for adoption—
NARRATOR: Every day, the clinic receives hundreds of calls from women inquiring about the procedure.
ABORTION CLINIC OWNER: [on the phone] I think that probably you were thinking about emergency contraception, but that doesn't work for you if you're already pregnant, OK?
What religion are you? What's your denomination? OK. And do you go— does your church have strong opinions against abortion? Some? A little? I agree, I think you should pray.
COUNSELOR: Tracy? Is that you? If you'll come in here with me?
ABORTION CLINIC OWNER: [on the phone] I just want you to know this, that terminating the pregnancy requires strength and courage, OK? And that's something that you need to give some thought to. If you decide that this is the right decision for you and your family, it sounds like it is going to require strength and courage on your part, OK?
COUNSELOR: How are you, assuming you'd rather be anywhere but here right now?
NARRATOR: Tracy is 27 years old and has come here today seeking an abortion.
COUNSELOR: When did you find out about the pregnancy?
TRACY: I found out about three weeks ago.
COUNSELOR: OK, tell me a little bit about what's gone on since then.
TRACY: Well, since then— well, my boyfriend was killed in a car accident, and so I have a lot going on with me. I pretty much have taken my son— I mean, I have one little boy. It's been really hard.
COUNSELOR: How old is he?
TRACY: He's 2-and-a-half, and so he's just old enough to miss his daddy. And you know, I have to do everything by myself. So I prayed about this decision and I finally got my answer from God.
COUNSELOR: Well, OK. Good.
TRACY: And I'm very confident in what I'm coming to do. You know, I have very good peace about it.
COUNSELOR: OK. Have you given any thought to when you actually want to come back in for this procedure?
TRACY: I'd like to as soon as possible.
COUNSELOR: I have openings tomorrow evening.
NARRATOR: Tracy must wait at least 24 hours before she can come back for the actual procedure. This state, like Mississippi, has an informed consent law. Meeting with this counselor is just the first step for Tracy.
ABORTION CLINIC OWNER: [on the phone] Yes, ma'am, you have to speak with the doctor at least 24 hours before. It can be even a week or two before, but it has to be 24 hours before.
Women have to come in and sit in person and receive the state-mandated information, so this requires that women come into the clinic at least twice.
COUNSELOR: It discusses how abortions are performed, both the medical procedure and the surgical procedure.
ABORTION CLINIC OWNER: What happened was that everyone thought, "What's wrong with giving women some information and letting them think about it?" And that seems perfectly OK until you start looking at issues of distance—
[on the phone] OK, tomorrow we have appointments at 10:00, 10:30 or 11:00. Or Friday is 12:00 through 1:30. Do either of those times work for you?
—trying to get child care two days—
[on the phone] What city are you in?
—trying to get a day off from work—
[on the phone] What about Saturday? Would Saturday be better? OK. I'll tell you what. Go ahead and try to get yourself set up as soon as you can for that first visit, OK, so we can do the ultrasound and tell you how long you have. It looks like the fee right now— she hung up.
Part of the problem that we have with folks that are coming, that are rural and traveling long distances, the— the issue that has is transportation. She said that— you know, she said she wanted to come in on Thursday or Friday. But then, in giving her the times, she said she couldn't come in. And when I asked her if transportation was the problem, she said yes. And then she said, "I'll just call you back."
So— and it's very hard. I mean, part of the issue that we have here with how the waiting period affects women is that often, we don't have the opportunity to really talk with the women— who— where this is really an extreme burden for them.
Basically, they fly below radar. And there's no real way of knowing if this woman will ever call us back. And transportation, potentially, is the issue that's blocking her.
NARRATOR: There are now fewer abortion providers in America than at any time since Roe v. Wade was decided IN 1973. Eighty-seven percent of counties throughout the country do not have one, and this lack of providers impacts rural communities the most.
In one of the most rural parts of Mississippi, near the banks of the Mississippi River, lies the city of Clarksdale. Part of the region known as the Delta, Clarksdale is one of the poorest cities in the state. More than a third of the city's population lives in poverty. The infant mortality rate here is almost two times the national average, and 75 percent of babies born here are born to single mothers, many of whom are teenagers.
PATRICIA WHITE, Nurse Midwife: The teen pregnancy rate here in Mississippi is high compared to the national average. I think we're probably in the top five. And in Mississippi — Coahoma County, which is here in the Delta — we're number three in the state.
NARRATOR: Patricia White has worked in the Delta for over 30 years. She's a nurse midwife at this public health clinic.
PATRICIA WHITE: I saw you before with your last baby, didn't I.
MELANIE: Yes, ma'am. Sure did.
PATRICIA WHITE: With both of them? With both of them?
A lot of the girls come in pregnant because they didn't have access to birth control.
Do you have insurance?
PATRICIA WHITE: And most of the girls are just of the mind that once they become pregnant that there are no options except for to have the baby.
NARRATOR: With the cost of an abortion often out of reach, and the Jackson clinic over three hours away, the options for these women are limited.
RITA TURNER: In the Mississippi Delta, it's not realistic. Stuff like that don't happen here. We don't have clinics like that here.
NARRATOR: Rita Turner has lived in Clarksdale all her life.
RITA TURNER: I know young girls have three, four children because they can't afford abortion. If you don't have money, if you're living on Welfare or Medicaid, you have to deal with it. You have to deal with that baby.
NARRATOR: In Mississippi, Medicaid can rarely be used to pay for an abortion. In 2002, the state barred the use of government money to pay for the procedure except in the case of rape, incest or risk of death. In addition, medical facilities that receive state money are prohibited from performing abortions.
Lt. Gov. AMY TUCK (R), Mississippi: Not one red cent. No taxpayer money could be spent on funding abortions. Not one penny could be spent on funding abortions. This sent a very strong message across our state and across the nation for other states to look at passing similar legislation.
NARRATOR: Thirty-three states across the country have passed similar laws, all deemed constitutional by the Supreme Court.
[www.pbs.org: Explore the laws in your state]
KATHRYN KOLBERT, Reproductive Rights Attorney: The Supreme Court has said that it's OK for the U.S. government to say, "We're not going to spend our money on abortion." How can the government decide not to pay for something that's a perfectly legal procedure?
PATRICIA WHITE: These women really don't have a choice. We are making decisions for them. It's like even before Roe v. Wade for these poor women. Nothing's changed for them.
So today— let's see, your last period was February 10th. That's right?
NARRATOR: Many of the women White sees come to her with unplanned pregnancies.
PATRICIA WHITE: Let's look at this wheel here and see how far along you should be, using this gestational wheel. February 10th, and this is July 30th. Are your periods regular?
PATRICIA WHITE: This would make you be six months pregnant.
PATRICIA WHITE: Is that true? Are you feeling movement?
MELANIE: Yeah, I can feel a little movement.
PATRICIA WHITE: Oh. So you're starting yourself late. Why from February—
A lot of these women do not want to be pregnant.
Was this a planned pregnancy?
PATRICIA WHITE: Was it planned? It was not planned.
MELANIE: No, it was not planned, but—
PATRICIA WHITE: And if you don't want to be pregnant, and you're in denial—
Why'd it take you from February to—
MELANIE: To be honest—
PATRICIA WHITE: —July to come in?
MELANIE: —I really don't—
PATRICIA WHITE: You didn't think you were?
MELANIE: I didn't really think it for, like, I'd say, the first three months. I never did really pay attention. And then, after I start paying more attention— see, because I was working more.
PATRICIA WHITE: Uh-huh.
Just having the ability to make the choice, to say whether or not this is something that she wants to continue with, is going to make all the difference in terms of the outcome of the pregnancy.
Did you know the later you come in to get your prenatal care, the more likely you are to have problems in the pregnancy? OK, just going to pull this up.
TERRI HERRING, President, Pro-Life Mississippi: We don't feel bad that people in the Delta can't have an abortion. To say that poor women— we want to be sure that poor women can get their abortions, like we're doing them a favor by helping them kill their baby, is— is just not OK with me. It's not acceptable to make that to seem something so bad.
You know, we see women all the time. And again, I was a young, poor, white woman and trying to go to college when I was pregnant with my first child. So I mean, I didn't live in the Delta, but I did not have the means at that time to, you know, completely take care of everything that I needed, and yet God made a way for me.
The women in the Delta that are having their babies, you know, they deserve our help and our support, but helping and supporting poor women is not helping them kill their babies.
NARRATOR: The state of Mississippi does fund what they consider an alternative service for women with unplanned pregnancies. Three years ago, the state DMV began offering "Choose Life" license plates for an additional fee of $31. Proceeds raised from the license plates help fund what are known as "crisis pregnancy centers" throughout the state.
Sen. ALAN NUNNELEE (R), Mississippi State Senator: You have a young woman who's pregnant, and she doesn't know where to turn. She feels she is in a crisis. Fortunately, she has a place to go in our state, and they can explain to her her options.
NARRATOR: Barbara Beavers is the director of the Center for Pregnancy Choices in Jackson, Mississippi.
BARBARA BEAVERS, Center for Pregnancy Choices: [on the phone] We're a pregnancy resource center.
NARRATOR: Just down the road from Mississippi's last abortion clinic, this is one of the largest of the 26 crisis pregnancy centers in the state.
BARBARA BEAVERS: [on the phone] We have free pregnancy testing, confidential counseling—
NARRATOR: Part of a growing movement, there are more than 2,000 such centers nationwide.
BARBARA BEAVERS: [on the phone] We try to fit what we have with your needs. What are you calling about?
The purpose of the center is to deal with a woman who has an unplanned pregnancy, and her choices are abortion, adoption, parenting. She has, basically, those three choices.
NARRATOR: Twenty-four-year-old Shanine has come in today for a free pregnancy test. As part of the center's standard services, they also offer women a free ultrasound or sonogram.
NURSE: I'm going to be looking for your uterus. I'm going to be looking for the baby.
BARBARA BEAVERS: The sonogram machine is a wonderful addition to our services.
NURSE: All right, Shanine. I'm going to look around a little bit now, get those measurements that I was telling you about, OK?
BARBARA BEAVERS: It's hard for her to realize what is going on inside, and that sonogram opens a window to the womb and lets her see what's going on inside.
NURSE: How's that make you feel, dear?
SHANINE: I just can't believe that's a baby inside there.
NARRATOR: Shanine had never considered terminating her pregnancy, but for Beavers, the sonogram has been an effective tool for women who are.
BARBARA BEAVERS: It personalizes the baby for the mama, and it makes the baby not just a baby, it makes it her baby.
CENTER VOLUNTEER: Hello. Can I speak to Jada, please? Jada, this is Marlene. I'm calling from the Center for Pregnancy Choices. Have you decided whether or not you're going to keep your baby?
BARBARA BEAVERS: We do have girls that come to us, and after all that's said and done, and we have even seen the baby, you know, and they have gotten all the information and say, OK, where can I go for an abortion? And we don't refer for abortions. We don't give them numbers of the clinic because that, to us, would be harmful to her health.
NARRATOR: Instead, this center offers free parenting classes, prenatal vitamins, baby clothes and other donations from people who believe in the center's mission. They offer abstinence-only education courses but do not provide information on birth control or the "morning after pill." Nor do they offer women pre- or post-natal medical care.
ABORTION CLINIC OWNER: The whole thing that is really problematic for me is the disconnect between the pre-born and the post-born. Some baby clothes and formula and even a stroller isn't going to help for that long. That's just not what's required to raise a child.
So many of these groups, so many of the hardliners, when they say, "I'm pro-life," they mean, "I support the pregnancy in utero, in the uterus." But I see so little sustenance and support for women and children, particularly poor women and children.
BARBARA BEAVERS: Father, we thank you for Shanine. We thank you for this little one that you've given to her.
NARRATOR: The center's efforts to reach out to pregnant women have been part of a broader shift inside the pro-life movement to focus more on the woman, they say, and not just on saving the pregnancy.
BARBARA BEAVERS: That's it. Keep us in touch. We've got your number.
CYNTHIA GORNEY, Author, Articles of Faith: At some point for pro-life people who think about strategy that's really going to work, it has become clear that, "We need to protect all the unborn, a terrible thing is happening in the U.S.," is not going to fly as a tactic for legislation. It just doesn't have enough overall support. That doesn't mean that if you're of that persuasion, you stop believing it. It means that you go back to the drawing boards. You sit around and you say, "OK, what is going to fly? What's a message that we'll be able to get lots more people to vote for, and where the public won't rise up and get upset?" Women's health. Everybody likes women's health, right?
[Americans United for Life meeting]
AUL ACTIVIST: We left off yesterday talking about significant legislation in the states, and we're going to pick up with abortion clinic regulations. About 26 states right now have some degree of abortion clinic regulation but—
NARRATOR: One of the major legislative efforts being undertaken by Americans United for Life has been to help states pass abortion clinic regulations, with the goal, they say, of protecting the health of the women who go there.
PETER SAMUELSON, Americans United for Life: If abortion is going to be legal — and it's going to be for the near term — we want to make sure that when a woman goes in for an abortion, that clinic, like any other outpatient clinic, has the right equipment and the right trained personnel to handle any emergency medical situations that might arise.
[Americans United for Life meeting]
1st AUL ACTIVIST: Popular opinion must be 70, 80 percent for clinic regulations—
2nd AUL ACTIVIST: Oh, public support is there for it. There's not the political will, oftentimes, because abortion clinics will come in and argue, "You're going to put us out of business, that's what you're trying to do." And that's not what we're trying to do. We're trying to protect women's health.
NARRATOR: That's what Mississippi lawmakers said they were trying to do last spring when they passed a new requirement for abortions performed after the first trimester. With the aid of Americans United for Life, Senator Nunnelee helped draft legislation that would require any clinic that performs such abortions to meet the standards of an ambulatory surgical facility.
Sen. ALAN NUNNELEE: Mississippi said, "OK, clinic operators, if you're going to perform second and third trimester abortions, then we're going to raise the level of medical care that you're required to give to your patients."
NARRATOR: Under this new law, the Jackson Women's Health Organization is required to meet 36 pages of regulations, from hallways that must be at minimum six feet wide to a requirement that the building be located in what the regulations call "an attractive setting."
BONNIE SCOTT JONES, Atty., Center for Reproductive Rights: The ambulatory surgical facility standards impose these extensive, completely unnecessary requirements that are largely unrelated to the safety of the procedure itself.
NARRATOR: Bonnie Scott Jones is a lawyer who represents the Jackson clinic. She works with a group called the Center for Reproductive Rights in New York City.
[Center for Reproductive Rights meeting]
CRR ACTIVIST: We've had 20 states pass 27 bills that directly restrict abortion access.
NARRATOR: These lawyers have another name for the type of clinic regulation Mississippi passed.
CRR ACTIVIST: Bonnie, would it be helpful for you if I went into the details of the TRAP bills that were—
BONNIE SCOTT JONES: Sure, that'd be great.
NARRATOR: They call laws like these TRAP bills, short for targeted regulation of abortion providers.
BONNIE SCOTT JONES: I use the term TRAP law to refer to a law that singles out abortion from all other medical procedures that are in every respect the same, and treats them differently and burdens them. I mean, it's basically, like, "Let's pick on abortion." And it's OK, you know? The Constitution seems to allow it.
NARRATOR: Among the new regulations the Jackson clinic faces is a requirement that clinic doctors have admitting privileges at a local hospital in case of an emergency. According to Jones, this requirement amounts to a TRAP for the clinic.
BONNIE SCOTT JONES: The reason that that's so difficult is that, generally, it is virtually impossible, if not impossible, to get admitting privileges in a state in which a person does not reside. The hospitals don't want to give admitting privileges to doctors that don't live there. I mean, part of what they want in terms of giving admitting privileges is to have the doctors serve the hospital in some way, whether it's doing emergency room rotations or things like that.
BETTY THOMPSON, Jackson Women's Health Org.: The bulk of our doctors come from out of state. They fly in, they fly out. It's quite difficult for a physician to live here in the state, in the city, and not be harassed.
BONNIE SCOTT JONES: The striking thing about the admitting privileges requirement is that it really serves no function because the clinic is already required to have a transfer agreement with a hospital 15 minutes away, under which the hospital will accept the patients of the clinic in an emergency and treat them. And the clinic has this transfer agreement, so there already is in place a mechanism to deal with emergencies.
These same people that claim that they want the best facility for women are doing everything they can to make any facility that they can control not provide abortions. If the state of Mississippi really thinks that abortions would be safer in hospitals, well, it could fund abortions. It could fund abortions in the state hospitals, so that when women sought abortions, that's where they would go.
Obviously, they're not doing that, the anti-choice activists aren't doing that, the state's not doing that because their motive is not to provide an abortion in the environment they believe is safest, it's simply to stop abortion.
Sen. ALAN NUNNELEE: The issue involving being prepared to take care of the complications resulting from the procedure is far greater than the political debate that occurs around the argument as to whether the doc can or cannot get admitting privileges.
INTERVIEWER: But you understand this little problem they have, right?
Sen. ALAN NUNNELEE: I understand it.
INTERVIEWER: What do you think about their problem?
Sen. ALAN NUNNELEE: I think they— that these doctors should quit doing the procedures on children over 12 weeks of age.
[Center for Reproductive Rights meeting]
CRR ACTIVIST: Another theme that we're seeing this legislative session is the further regulation of laws that are already on the books.
NARRATOR: Since the Casey decision opened the door 13 years ago, over 200 abortion regulations have been passed throughout the 50 states.
CRR ACTIVIST: Forty-four states have parental involvement laws on the books...
NARRATOR: And according to the lawyers at the Center for Reproductive Rights, more are coming.
CRR ACTIVIST: For example, in Indiana, they already have a state-mandated informed consent script that has to be given to all women 24 hours before they have an abortion. But now what's been added to the script is they must also have an ultrasound and be given the opportunity to see the ultrasound image 24 hours before the abortion, as well as to hear the fetus's heartbeat.
And one of the concerns is, Who's paying for this? And in Michigan, there's a list that's on their state-mandated site saying that these are places where you can get free ultrasounds. However, all of those places are crisis pregnancy centers. So when you go there, you— you'll be able to get an ultrasound, but they don't provide abortion.
BONNIE SCOTT JONES: The problem with these endless procedural hoops and hurdles that women have to go through to get an abortion— these are real obstacles, and they are not always surmountable. And it's not at all clear what kind of burdens one has to show to be able to convince a court that this— that the law is going to be harmful enough to enough women that, finally, the court will say, "OK. Enough. You can't impose this particular burden."
NARRATOR: As both sides of the abortion war look to the future, the focus is back on the Supreme Court. With its new Chief Justice, John Roberts, and Justice O'Connor's replacement still looming, this month, the Court will have its first chance in five years to shape abortion policy. On November 30, they are expected to hear arguments about a New Hampshire law that requires abortion providers to notify a parent of a minor at least 48 hours before performing an abortion. The case is known as Ayotte, named after the attorney general of New Hampshire. It is only the second major abortion rights case the Supreme Court has heard since Casey, and like Casey, Ayotte has the potential to transform the abortion war yet again.
[www.pbs.org: The Roberts Court and abortion]
Prof. JACK BALKIN, Yale Law School: The strategy of the pro-life forces in the New Hampshire case is another masterful way of getting to where they want to go. The Supreme Court picked two questions to decide in that case. The first question they picked to decide was, when you have a parental notification statute, is there an exception if the minor's health is endangered?
NARRATOR: In the New Hampshire law, there is no such exception. The only way a doctor can avoid waiting 48 hours after notifying a girl's parent is if the girl's death is imminent. The law allows for no other health or medical emergency exception. And this health exception is the first issue that is being fought over in this case.
LOUISE MELLING, ACLU: For 30 years, the Court has held firm to the view that you have to protect women's health, and it would surely be a sign of what's to come if the Court changes its view on that.
NARRATOR: Louise Melling is on the team of lawyers from the American Civil Liberties Union, which is arguing this case. They argue that the exception in the New Hampshire law is too narrow and that the Court needs to allow for an exception in the event of other medical emergencies short of imminent death.
LOUISE MELLING: What the Court has always said is that where any kind of delay or where an abortion restriction risks a woman's health in this fashion, you need to have an exception. And you need to have an exception because you want the doctor to be able to take care of the patient. You want the doctor to be able to avert harm. That's been the rule. It's a radical proposition to say that that shouldn't be true,
CLARKE FORSYTHE, Americans United for Life: The point here is that the medical emergency exception is a loophole that allows the doctor to ignore parental notice. It allows the doctor to ignore the statute and just go ahead and give the abortion.
NARRATOR: Clarke Forsythe is a senior attorney with Americans United for Life and is one of the lawyers advising New Hampshire Attorney General Ayotte. In his brief to the Court, he argued that a broad health exception for medical emergencies would "act to destroy the requirement of parental notice."
CYNTHIA GORNEY: It sounds like an easy thing to just put a health exception in, right? Well, the answer to that from the right-to-life perspective is health doesn't mean what you think it means. And the reason is that one of the things the Supreme Court did in Roe and the companion case that came out the same time as Roe v. Wade was to define health as meaning — let's take the right-to-life articulation of it — anything the doctor and the patient want it to mean. Now, that's a loaded way to say it, but the Court said health doesn't necessarily just mean physical health. It can mean emotional health, psychological health.
Prof. JACK BALKIN, Yale Law School: That's why the two sides are fighting over the scope of the health exception. And what the Supreme Court says about the health exception in the New Hampshire case, Ayotte, could be transferred to a whole series of other cases in which health is also an issue.
Pres. GEORGE W. BUSH: I'm pleased that all of you have joined us as the Partial-Birth Abortion Ban Act of 2003 becomes the law of the land.
WILLIAM SALETAN, Author, Bearing Right: Just this summer, a federal appeals court struck down the federal partial-birth abortion ban. And in so doing, it said explicitly in its ruling, "Because the act does not contain a health exception, it is unconstitutional." Period. Pro-lifers could go back and put in a health exception, or they could do what they've tried to do, which is to gamble that there will be a change on the Supreme Court and that the new Justice won't care about the health exception. So we might find out in the parental notification case that John Roberts doesn't care about the health exception, in which case, perhaps he will uphold the federal partial-birth abortion ban as is.
[Americans United for Life meeting]
PETER SAMUELSON, AUL Pres.: The center of that case was all about the fact that they don't have the health exception, right?
1st AUL ACTIVIST: Right. And it—
PETER SAMUELSON: So if they lost on those grounds—
2nd AUL ACTIVIST: Well, actually, kind of a more important issue is what level of deference the courts—
PETER SAMUELSON: Yes.
2nd AUL ACTIVIST: —are going to give abortion regulation because if the court decides—
NARRATOR: Besides the health exception, there is another big question being decided in the Ayotte case, one that could have even deeper implications for the future of abortion rights.
Prof. JACK BALKIN: The other issue is highly technical, but it turns out it's crucial. It's far more important than the health issue.
ACTIVIST: The Ayotte decision is the first case since Casey where the Court has agreed to take a look at the standard of review.
Prof. JACK BALKIN: The issue is, What do you have to show to a court in order to get an entire abortion law struck down? The way it usually works until now is, a plaintiff goes to court and says, "This restriction here imposes an undue burden on a lot of women. This statute here will impose an undue burden on a lot of women." And if they convince the court that's so, then the court issues an injunction and the statute cannot be applied by anyone.
NARRATOR: In this case, the pro-life side is arguing that even if the court finds the parental notice law to be an undue burden for some minors, the law should still stay on the books and the court should only make exceptions to it on a case-by-case basis.
Prof. JACK BALKIN: If that's the rule that the Supreme Court adopts, it means that over time, you have to bring a whole series of different plaintiffs in, each of which goes before the Court and says, "This law is unconstitutional as to me." The practical effect is to allow states to pass much more restrictive laws affecting abortion than they ever could before.
ACTIVIST: So I think that is actually the more key issue that's going to come out of Ayotte.
PETER SAMUELSON: —Casey— Casey opened—a whole range of them, eventually. And this one could do— either open up further or shut it—
ACTIVIST: It could be very beneficial to us, or they could say, "Well, no, we're going to take you back a step," which was kind of where we were after Roe.
CLARKE FORSYTHE, Americans United for Life: Whether substantial change is in the offing or not remains to be seen, but the substantial change that should take place is that the issue of abortion should be returned to the people. The Court should return the issue to the people to decide and determine through their elected representatives.
LOUISE MELLING, ACLU: As with Casey. the likely outcome of the New Hampshire case is not Roe versus Wade reversed. But for some women, for some category of women, the world really did change when Casey changed the standard. And Ayotte has the potential, again, to really change the world for some group of women. The right will remain. But for whom does it remain, and in what circumstances?
CLINIC PROTEST LEADER: Father God, we just come before you now, Father. We invite your Holy Spirit, Father God, to empower us, Dear Lord, today. We surround this clinic, Dear Lord, with every prayer of every person, Father God. We speak out, Father God—
NARRATOR: Back in Mississippi, the Jackson clinic has until January to meet the ambulatory surgical standards.
CLINIC PROTEST LEADER: —and we pray that these doors will be shut, Father.
NARRATOR: If they do not, there will be no abortion clinic in Mississippi that can perform abortions after the first trimester.
CLINIC PROTEST LEADER: In Jesus' name. Amen.
TERRI HERRING, President, Pro-Life Mississippi: Thank you, Lord. In closing today—
NARRATOR: Terri Herring says Pro-Life Mississippi is not currently lobbying for any further abortion regulations but hopes that rulings from a new Supreme Court will permit more restrictive legislation in her state.
TERRI HERRING: Our goal is to be a pro-life Mississippi and to build a pro-life America. My personal goal is to be instrumental in the overturn of Roe v. Wade and to be instrumental in ending abortion in my lifetime.
ABORTION CLINIC OWNER: Sometimes I fantasize about Roe being overturned because then I think that there would be this real threat, this real enemy. As long as everything flies below the radar, never an all-out attack, I think that most women and men are asleep. I don't think they realize what's going on.
The assault on abortion rights is very clever. It's very smart, and we are losing.
The Last Abortion Clinic
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ANNOUNCER: This report continues on FRONTLINE's Web site. Read summaries of the major U.S. Supreme Court cases on abortion, click on an interactive map to learn your state's laws on abortion restrictions and information on upcoming state legislative battles, read the extended interviews from the program, explore the shifting attitudes of young women towards abortion, statistics on abortion in America, and read a Q&A with producer Raney Aronson-Rath. You can watch the entire program again on line, then join the discussion at pbs.org.
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