A reproductive rights attorney, Kolbert argued in front of the United States Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. Here, she describes in detail the legal issues at stake in Casey and the implications of the Court's landmark decision, which allowed states the latitude to restrict abortion so long as they did not present an "undue burden" on the woman. Kolbert tells FRONTLINE she was very concerned that the Court would overturn Roe v. Wade. "In the scheme of what could have happened, this was a tremendous victory," she says. "Did we suffer a loss? Yes." In this interview, Kolbert also explicates other important Supreme Court decisions on abortion, including Roe, Harris v. McRae, Webster v. Reproductive Health Services and Thornburgh v. American College of Obstetricians and Gynecologists. "I agree with the anti-abortion movement in the sense that I think there are too many abortions in the United States," Kolbert says. "… I think what we need to do as a culture is to really go back to the drawing board and say: How can we reduce the level of unintended pregnancy?" This is the edited transcript of an interview conducted on June 29, 2005.
... From the '70s, pretty much right after Roe, there were cases against Roe. …
Interestingly enough, though, the victories in the Court were pretty successful through about the end of 1978, 1979. And it was at the time that the Supreme Court was really looking at issues involving young women, issues involving poor women, that we began to see some what I think of as the … chipping away at Roe that began at that time.
OK, so now let's talk about [Harris v.] McRae as much as we can in layperson's terms and how that really shifted things.
… Starting in about 1975, Congress tried to make restrictions on what the Medicaid program would pay for. … What members of Congress did is they said if we are contributing federal funds to a state, and they accept those monies, you can use those federal funds for all medically necessary health purposes, except abortion. …
What that did is a couple of things. The first thing it did is it meant that poor women would not be able to have an abortion, or if they did have an abortion, they'd have to work hard to collect the money, and they would in many ways have to wait a longer period of time. They'd start collecting the money in their first trimester, but the abortion would get later and later and later, at which point the price would go up. …
So there was a tremendous effort to fight [what was known as] the Hyde Amendment. Those fights in the first number of years were very, very successful, led by a very strong coalition between the women's movement and actually religious people who thought it was really unfortunate to single out poor people and to treat them differently. Actually, Protestant religious groups and the women's movement together were able to very successfully beat the first efforts on the Hyde Amendment.
But what they started to do is, every year on the appropriations bill, continued to make efforts to enact the provision. They were eventually successful, and it was challenged in court. And unfortunately, by 1980, the Supreme Court said it was OK for the U.S. government to say, "We're not going to spend our money on abortion."
That to me was the biggest loss our movement suffered, because it gave license for the government to treat women differently when they're spending their own monies. And the federal health programs for the most part, whether it be for poor women or federal insurance for federal employees, or whether it be monies that the U.S. government gives for overseas aid, any of the millions and millions of health care dollars that are spent by the federal government could be limited around the abortion issue. And that was a big, big defeat.
… Did you feel after that happened that there was basically no going back to challenge that?
… I brought the first challenge to the cutoff of Medicaid funding for women in Pennsylvania under the state constitution and tried to make an argument that ultimately wasn't successful, but managed to maintain funding under Medicaid in Pennsylvania until about 1986. …
[When asked about the issue of poor women not being able to afford access to abortion, the pro-life side responds, "Why shouldn't we be saving poor women's babies?"]
Strategically, those in the anti-abortion movement recognized very early on that they would have the most power in areas where there's no organized constituency to fight them. And so low-income women were by far those who were affected. [They] were the most disenfranchised; they didn't vote as frequently; they lived in communities [within which] either they were a minority voice or their legislators didn't have much power within the legislature as a whole. It was a tactic that politically worked very well. Similarly, young women who didn't have a voice, who were harder to [get to] speak up, because you don't think of a teenager being able to go to a state legislature and make a change -- and so they targeted them as well.
And I think the entire point of this, and I think the strategy was, if you create a law that treats abortion differently for some women, you get a leg up in trying to expand that pool. So all they wanted as a political matter was a win. They didn't care what the restriction was; they wanted a win. That win would build their political power, and eventually they'd be able to affect all women. …
[What's wrong with a 24-hour waiting period?]
Let me just say that the anti-abortion movement is particularly good at what I think of as framing issues. They try to enact restrictions that don't sound so bad. They want people to think, oh, they're being very reasonable.
The problem is it affects real women in very, very severe ways, but the women who are affected, there's not very many of them; they don't have much political power; they don't have much voice in the political system. So that strategically is the idea, that you pass a law that sounds good, will harm some people, will force them to not be able to get the medical care they need, will prevent abortions for those women, but not so bad that you'll lose the bill altogether.
And the other things I've noticed from the language -- and it's definitely changed over the last 30 years on the pro-life side -- is that it's gone from focusing only on the unborn child to a woman's well-being and health. …
Right. I have to say, the big lie works really well. The reality is in the days since Roe, women's health has improved dramatically. When abortion was illegal, women died. They died of back-alley abortions; they died of complications from abortions. They had very poor access to health care. …
So it's ironic to me that the anti-abortion movement has tried to portray abortion as being bad for women, when in fact just the opposite is true. But again, let's remember, this is a political battle. This isn't about facts; this isn't about good judgment. This is about winning politics. And [in] politics, if you can pretend that you're supporting women or supporting women's rights, it's a better argument among the legislature that wants to look like they're helping women.
An example of how that movement has changed is the Operation Rescue model. … They've renamed themselves Operation Save America. They have a very different approach outside of clinics now. … What do you say about this movement and how they've changed and how effective has it been?
I think that they've changed based on what works and what doesn't. Operation Rescue didn't work, and particularly after 9/11, Operation Rescue would never work, because it was really an organization that was intending to inflict terror on people.
But again, the law changed, too. We were successful in passing the FACE Act, the Freedom of Access to Clinic Entrances Act. It's a federal law that allowed police to go in and make arrests and charge protesters who were blocking access to clinics with a federal crime. And the reality is that they couldn't get people to blockade those clinics when they could be arrested for a federal crime. It was a very significant change in what happened, and you weren't going to see those kinds of activities. That was one of our successes, and I'm very proud of it. …
Why isn't abortion just in the hospitals?
It didn't start as an abortion clinic. It started as women couldn't get good reproductive health care, and so Planned Parenthoods provided services to women, whether it be ob-gyn care, sex education, things that weren't being offered through a discriminatory health system. So abortion clinics really started as the place women would turn to or go to, because they couldn't get it in mainstream American health facilities.
The second thing is that one of the reasons that clinics separated off is because abortion is a very simple medical procedure. … One of the reasons people separated it off to clinics is because we realized very early on, you could provide the service at a quarter of the cost if you did so on an outpatient basis as opposed to being in a hospital. So if you wanted an abortion in a hospital, women would pay, even back in the '70s, $600, $1,000 for those procedures which they could get in a clinic for $150. It was a matter of economics and access as much as anything else.
And do you think that that model has turned out well, looking at 2005? …
Well, I think there's been upsides and down. The upside is it provides services to women at a much reduced cost. The downside is it has the potential, and particularly in the '80s and '90s, of marginalizing abortion providers and providing a place where doctors in particular could be attacked. …
Tell me about Webster [v. Reproductive Health Services]. … [What in Webster] indicated to the pro-life movement that they could just start to shoot forward all of this legislation?
Four votes. That's the critical factor in Webster. Let me put Webster in the context of the history of these cases, starting in about 1986, when my first case went to the Supreme Court. It was a case called Thornburgh v. ACOG -- American College of Obstetricians and Gynecologists. We challenged the first Pennsylvania abortion control act. In that law was restrictions on young women, restrictions on poor women, 24-hour waiting period, … informed consent laws -- but basically, laws that required doctors to tell women certain things whether they were true or not. We challenged that law. It went up to the Supreme Court.
Now, this was a Court that had previously reaffirmed Roe in a variety of contexts since 1973. But the composition of the Court had changed somewhat, and most importantly, President Reagan was anti-abortion. His Justice Department filed a brief in that first case in 1986 that said the Supreme Court ought to overturn Roe v. Wade.
That was the first time in the history of the Court that the solicitor general had gone in and said Roe ought to go. And that changed the dynamic in terms of what people on the anti-abortion movement were asking for. Up until that time, they had wanted to pass restrictions. They never thought they had the political power to actually outlaw abortion or to change the outcome of the Supreme Court. But when you have the chief legal officer for the United States government coming in and asking [that] Roe be overturned, the dynamic changed.
In Thornburgh, the case that I argued in 1986, we won that case. We won it. It was a clear victory in support of Roe. But the vote count shifted; it shifted from 6-3 to 5-4. And all of a sudden you had the politics of the issue change, because Americans thought -- and certainly the anti-abortion movement thought -- they were one vote away from overruling Roe. …
But I think 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."
And right after Webster, you saw 800 laws being introduced in state legislatures all across the country. You saw states begin to, again, pass bans on abortion. Utah, Guam, Louisiana all passed bans. The whole idea was to get that case that outlawed abortion back before the Court, and let [Justice Sandra Day] O'Connor be the swing vote. …
During that time frame, following Webster, I spent two years traveling all over the country working with women and men in the states trying to defeat anti-abortion legislation. There wasn't a day that went by that I didn't get a new bill that had been introduced. The sheer volume was extraordinary in terms of the numbers of efforts that were introduced in every state. And it took a lot of work to fight all of those. …
[How did you feel about the (Planned Parenthood of Southeastern Pennsylvania v. Casey) case taking place in Pennsylvania?]
Well, I thought it was a little ironic, because I was actually counsel in a number of cases around the country, some of which were much more serious restrictions on abortion. For example, the Louisiana law which banned all abortion -- I represented the clinics in Louisiana and fought that.
So I thought it was a little ironic that little old Pennsylvania, which was a case I'd been with since the beginning of my career, was the first one to make it to the Court in the post-Webster era. But it didn't make it any less significant. That is the question. Whether it was a restriction on abortion or a ban, the question was the same. The Court had to decide whether or not Roe, as we knew it, would continue to survive. …
How did the Casey case call Roe into question? …
Well, Casey was a case that looked at whether or not certain restrictions on abortion were constitutional. There was a 24-hour waiting period; there was what's called an informed consent requirement, which really required doctors to provide a litany of information to every patient whether they needed to know that information or not. And that information was intended to discourage abortion. It also required married women to notify their husbands if they wanted an abortion; it required young women to notify their parents if they wanted an abortion, all of which were intended to discourage the procedure -- not outlaw it altogether, but to discourage it.
And so when it proceeded through the Court, we argued that this violated Roe. Why? Because there were restrictions on abortion that made it more difficult for women to obtain the procedure. They applied during the first trimester. And under Roe's what's often referred to as the trimester framework, they would have been unconstitutional. There was no good reason that the state could give as to why it needed to impose these restrictions on women except the fact that they wanted to discourage abortion. …
So when we got to the Court, we argued this violated Roe, and the state came in and they said: "Well, we don't think Roe ought to be the law. We ought to think that the state should have greater latitude to restrict abortion. We think the standard ought to change." And really what the fight was all about is, how are courts going to look at a law, and what's going to make it unconstitutional? If the standard changes, if the courts are going to be more permissive of state legislation, if legislatures are going to be given greater latitude to restrict women's rights in this area, all that needs to happen is that the Supreme Court says: "We're going to change the standard. We're going to let more laws stand. We're going to say that if you want to discourage abortion, maybe that's a good enough reason to allow a law to stand."
And that's why this was such a significant case, because it provided the Court with an opportunity to change the standard. Remember, in Webster, you had four votes of justices saying: "Yes, I want to change the standard. In fact, I want to let states ban abortion." You had O'Connor on the fence as to what she was going to allow. But certainly she wanted to let states be much more restrictive than they had been. She had already told us that in a couple of cases earlier on.
So that was five votes. And then we had Justice [Clarence] Thomas join the Court, and we knew that he had opposed abortion. Even without O'Connor, there were five votes there, and that's what was so scary to us at the time. …
[Why would the restrictions challenge Roe?]
Let me see if I can explain what Roe did. Roe v. Wade was a decision written by Justice [Harry] Blackmun, and it created what was called the trimester framework. What it said is states are not free to restrict abortion or impede a woman's ability to get an abortion in the first trimester.
In the second trimester, states can restrict abortion, but they have to do so in a way that's really furthering women's health. They have to be trying to promote a good health care system for women. 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. If her health was in jeopardy, states couldn't prevent her from having the procedure, but they could ban the rest of abortions passed what's called viability.
Now, when is a fetus viable? That was defined in Roe as that stage in pregnancy in which the fetus is capable of independent survival. It's usually considered around the 24th or 26th week of pregnancy, and that remained pretty consistent as a medical matter from the time Roe was decided until today.
In 1986, using that trimester framework, the Supreme Court of the United States had struck down a Pennsylvania law that required a 24-hour waiting period and that required informed consent requirements. Those are restrictions that required doctors to provide a litany of information to the woman that was intended to discourage the performance of the procedure.
Why did that violate Roe? Well, it was a restriction in the first trimester of pregnancy, and it wasn't intended to improve her health. It was really just intended to restrict her ability to make a decision that was good for her. The Court found in Thornburgh it was unconstitutional.
What happened in Casey was that the Court of Appeals said: "Even though the Supreme Court had found these identical statutes unconstitutional, we think the law has changed because the composition of the Court has changed. We think this Court is going to give states greater latitude to restrict abortion. Therefore, we're going to change how we look at this question, what standards we use to evaluate the constitutionality of the law." And when they made that decision, we knew immediately that this was a case that would go back up to the Supreme Court. …
I'm hearing two different things. The restrictions stood, which you just told me came in conflict with Roe, yet Roe is still the law of the land. So what changed?
I think in the long term, Casey was a tremendous victory. But in some respects, it was a loss. And let me try to explain that. Going into this case, we were pretty clear that there were five votes on the Supreme Court to overrule Roe, to say that states would have tremendous latitude to restrict abortion -- more than just enacting 24-hour waiting periods, but banning the procedure altogether. We were pretty clear. There were four votes from Webster that said you could ban abortion if they had their way. And Justice Thomas had joined the Court, so that was five votes going into the case in which 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. They couldn't ban abortion. They could restrict it more than they used to be able to do, but not as much as those who opposed abortion wanted, and not as much, in fact, [as] even Justice O'Connor had advocated before. Even Justice O'Connor shifted what she thought was permissible following Casey.
So in the scheme of what could have happened, this was a tremendous victory. Did we suffer a loss? Yes. Restrictions were permitted that wouldn't have been permitted in 1986. But given what we could have lost -- I mean, my biggest fear going into Casey was thinking oh, my God, I'm going to have the case where Roe v. Wade is overruled. That's what I would be known for for the rest of my life.
That didn't happen. I'm very thankful for that. And I think in the scheme of big cases, if you look at what are considered to be landmark decisions of the Supreme Court of the United States, Casey would be considered one of them. Why? Because the Court defied expectations. They issued a joint opinion, which is very, very rare. And the middle of the Court survived a challenge to what I think of as a challenge to its own integrity.
[The pro-life side sees Justice Anthony Kennedy's vote in Casey as a betrayal. Were you surprised?]
Oh, it absolutely surprised me. … We knew that Casey would be decided that day because it was the last day of the term. They had to issue the opinion. And so a number of us all went down to Washington to sit in the courtroom to hear the announcement of the opinion. And actually a few minutes before the Court came into session, the solicitor general at that point, Ken Starr, came up to me and said that he had seen the opinion and that the Court of Appeals had been vindicated. That's how he described it to me.
But in some respects, it really wasn't that at all. I was shocked at what happened. I was totally surprised that we came out with any victory at all. And I think that over the course of the day, I really changed my point of view about how significant this really was. Here's my take on this.
I think that both Justice Kennedy and Justice O'Connor really were concerned about the institution of the Court. They were concerned about the perception to the everyday American that the Court could change its mind on so fundamental a question just because a new justice was appointed. They had been through a very, very onerous appointment process with Justice Thomas joining the Court. There had been just a tremendous upheaval about how you get on the Court and what the Court meant. I think they were really concerned that they would be perceived as being wishy-washy because the politics was changing. And I think that they really were concerned that the Court would be looked at in a disfavorable light in the historical sense. They were very concerned about that. And I think that's part of what happened.
The second thing I think happened is in some ways, our strategy really worked, because it forced the Court to say: "Well, what standard should we adopt? How much latitude should we give states?" And when Justice Blackmun died, he released his papers, and you can see the first draft of the opinion that had been written by Justice [William] Rehnquist. Well, let me just say, when a case is argued before the Court, I finish my argument; the justices leave; they go off and meet together and discuss the case very quickly, take a preliminary vote. Whoever has five votes writes a draft opinion, circulates it among all the justices.
In this case, we could see from Justice Blackmun's papers that there were five votes to overrule Roe. Chief Justice Rehnquist wrote a draft opinion that he circulated to the other justices. That opinion called for the overruling of Roe. It adopted basically a standard that permits states to ban all abortions except for life and [a] very limited number of cases of life and fetal anomaly.
Tremendous latitude to bring us back to the days before Roe. And I think even Justice[s] Kennedy and O'Connor were uncomfortable with giving states that much ability to interfere with women's lives and to really change what women had. You had a whole generation of women who had grown up understanding that abortion was legal, and to then say, "Oh, we can criminalize this," I think they were just really fearful of the political repercussions, and fearful of the fact that they would be perceived as a Court of bowing to the political will of a minority of the country.
And I think that that really was what was going on here -- the fact that the draft opinion by Justice Rehnquist really called for permitting states to ban abortion, their being uncomfortable with that, and this notion that the institutional integrity of the Court was in jeopardy. …
So when Ken Starr said that the circuit court was vindicated, what was he talking about?
Well, what Ken Starr said was the circuit court was vindicated, meaning they adopted an "undue burden" standard. That was the words that the Court of Appeals had used: We think undue burden should be the law of the land. But frankly, the undue burden that the Supreme Court adopted in Casey was nothing like the undue burden standard the Court of Appeals had come up with, or even which Justice O'Connor had articulated in earlier cases. It was a totally new animal. And I think in some ways, it has meant that the real hallmark of Roe, the fact that states can't ban abortion, that they can't even restrict it post-viability if the woman's life or health is in jeopardy, those remain. And that's a very good thing.
Well, under Roe, what would happen is that the state passed a restriction. I could go into court; I could challenge the restriction. The burden was on the state to come forward and show that this law was necessary; that, in fact, there are compelling reasons for its adoption. "Compelling reasons" is just legalese for saying they're not going to win. They're not even going to be able to show this, because really, there's nothing that would be so compelling that would permit interference with women's ability to make these decisions.
Under the undue burden standard, things shifted. No longer was the burden on the state to show that there's compelling reasons for the statute. In fact, women had to go into court and say that this law was onerous on them; that, in fact, it created a burden on their ability to make a decision.
And in law and order, you talk about burdens of proof. What happened here is under Roe, the burden of proof was on the state. Under Casey, the burden comes back to the women whose rights are being interfered with.
So in a layperson's term, it went from being a fundamental right to what?
Under Roe, because the burden was on the state because the state had to show a compelling reason for its adoption, the right to choose abortion was known as a fundamental right. That meant it received the highest level of constitutional protection. The state had to show extraordinary reasons to interfere with it.
Now, under Casey, the right to choose abortion didn't get that much protection. It wasn't the highest level, but it did receive what I think of as a middle tier. It came down a step. States could pass restrictions, but those restrictions couldn't -- what Justice O'Connor said -- couldn't unduly burden the ability of a woman to make that decision. …
[What's wrong with the undue burden standard?]
Well, one of the difficulties with this new test, new burden test, is it's very subjective. It's very much a matter of fact in every particular court, and every judge really has to say, "Well, how much harm is too much harm?" That's one of the reasons we don't like the test, because it gives judges much greater latitude to permit restrictions on women's rights.
And in fact, what we've seen since Casey is that restrictions that affect low-income women, restrictions that affect young women, restrictions that sound reasonable but do have an impact, are being upheld, particularly 24-hour waiting period. So 24-hour waiting period doesn't sound so bad. What's the big deal that the woman has to wait 24 hours? Well, in a state like Pennsylvania, where a woman could be traveling three and a half, four hours to get to an abortion clinic, a 24-hour waiting period either forces her to make that trip two times or to stay overnight in order to have the procedure. Increases the cost, increases the inconvenience. …
So in other words, what might not be at all an undue burden for someone like me or you would be a very big burden?
Again, all of this is subjective so that for some women it's not burden at all, but for other women -- for example, battered women or women who have no financial resources or young women who don't have the support of their families -- the burden can be considerable. And I think that's really the key to this decision, is it gives judges the obligation to decide how much burden is OK and how much isn't. How much is undue? And that gives tremendous power to a judiciary that in recent years has become more and more and more conservative. …
What about the state of Mississippi, where there's only one clinic? What does undue burden mean in a state like [that]?
Right. The way abortion is performed in different states varies considerably. Some states have only one abortion provider, or two or three, so that women have to travel even longer distances than they have to travel in Pennsylvania. In some states, there's no abortion providers at all, and so they have to go to neighboring states. And so the ability of women to find providers to make arrangements, 24-hour waiting periods, which sound really innocuous, can have a damaging effect. It makes it more expensive; it makes it more difficult to obtain the procedure. And ultimately what that means is that for women who have fewer resources, they either can't get the procedure at all or it's more expensive.
And so what happens?
Well, in the worst case scenario, they can't get the procedure at all because they can't afford it. In the best scenario, it makes very little difference because they are able to travel quickly and go back to the clinic. But ultimately, I think the real political question is, do we want the state to be making these decisions for women, or do we want women and their physicians to make them on their own? In my view, people in state legislatures shouldn't be controlling how medical procedures are provided. …
Do we want the state legislature to tell the dentist what he has to tell his patient every time that patient walks into his office? Do we want the doctor who's performing heart surgery to have to read the statute and have the legislature define what transpires in that procedure room? No, we don't. …
Of course, the pro-life side … would say to you heart surgery has nothing to do with abortion. That's a life that you're talking about. You're stopping life. … Can you see that from their perspective?
Oh, I absolutely see their point of view. The problem is is that we live in a pluralistic society; we are governed by the Constitution. And the reality is, their view that this is life is their view; that is not true for all Americans.
And in fact there's considerable disagreement about when life begins among differing religions and people who are nonreligious, and it seems to me, where there is a fundamental disagreement about both when life begins and even if there is life, what women decide is best for their own lives. Even if you assume that there is potential life to a pregnancy, in my view, women's ability to make decisions about when they want to have children is more important than the potential life. …
Having children when you don't want to is not only bad for the woman; it's bad for the child. So the responsibility to plan and to live your own destiny I think has to live with the individual. …
[What restrictions did Casey open the door to?]
The real significant change after Casey were waiting periods. Prior to that time, states had already done a tremendous amount to restrict the rights of young women -- requiring parental notice or consent, restricting the rights of poor women. I think today there's, like, 32 states that have restrictions on young women and about the same number for poor women, maybe a little bit more.
That's increased a little bit. But that's been a trend that has been true since about 1976, those types of restrictions. What Casey did instead was it said you also could enact waiting periods. And so since Casey, we've seen a number of states enact waiting period laws that [do] have an effect on women. It's a very bad result, because, again, the most powerless are those that are affected the most. …
We look at the landscape of America. What we've been noticing in states like Mississippi and even Louisiana and many states across the country -- South Dakota, North Dakota -- is instead of outlawing abortion, the pro-life movement has had great or maybe good success, mild success, however you want to quantify it, in shutting down clinics. …
Well, in some ways, the anti-abortion movement has been the most successful because they're -- I think of it as erosion on a beach, you know? You keep at it. You keep pushing that tide along the beach, and slowly, the rights that women had have eroded away because of that just constant onslaught of efforts to restrict or make it more difficult to perform abortions, and that coupled with the fact that doctors aren't being trained to provide procedures; the fact that it's very expensive to maintain independent clinics; the fact that new clinics can't be started very easily because of zoning regulations and other kinds of efforts or protests; the violence that have happened against abortion providers -- all of those things.
And one other very significant factor, which is the people who are trained to provide abortions have gotten old. Most of the abortion providers started because they felt really, really concerned when women were dying of back-alley abortions. … They're dying off. So unless you have doctors who feel that same urgency that the doctors who started taking care of women who were dying -- unless they're being replaced, it's really hard. …
And what does that mean? That means abortion is marginalized more and more. It means that women have less access to the procedures. And frankly, it affects all health care, not just abortion. And I think that's the part we lose as a political matter.
That is, when abortion providers aren't out there, when women can't get good sex education, when women can't get access to birth control, it does more than just mean they can't get an abortion. It means they have no access to women's health care at all, and I think that's really a very serious problem.
My view is I agree with the anti-abortion movement in the sense that I think that there are too many abortions in the United States. Why is that, in my view? Because too many women are facing unintended pregnancy. And I think what we need to do as a culture is to really go back to the drawing board and say: How can we reduce the level of unintended pregnancy? How can we make sure women aren't getting pregnant when they don't want to be?
And the way you do that, in my view, is you increase sex education; you increase access to contraception; you increase access to emergency contraception. That's now a procedure that allows women to take a pill if they have unprotected intercourse within 72 hours. That can reduce unintended pregnancy by almost 90 percent.
But the climate that permits restrictions on abortion also permits states to interfere with all these other things as well. So when you lose the abortion battle, you're setting up to lose battles on contraception. You're setting yourselves up to lose battles on emergency contraception. You're setting yourself up to lose battles around getting better health care for women generally -- even better maternity care. And that, to me, is the long-term devastating effect of allowing the erosion of liberty.
[Abortion is a legal procedure, but the federal government won't pay for a Medicaid recipient to have an abortion.]
How can the government decide not to pay for something that's a perfectly legal procedure? And in fact, under the Medicaid program, all other medically necessary services are provided. But the Supreme Court in Harris v. McRae said if the government is spending its money, it can decide how it wants to spend its money.
It shouldn't matter that women are being prevented from getting procedures. Really what's going on here is the Congress is deciding how to spend its money, and we're going to give them great latitude to make those decisions. Congress couldn't ban abortion, but it can tell poor women they can't get one if their monies are at stake. …
About 12 percent of poor women who are denied Medicaid funding for abortion go ahead and carry that pregnancy to term, and -- just a shame.
The pro-life movement [would] say it's a triumph that 12 percent of those poor women are actually having those unborn children.
And they would say it's a triumph. And for some of those women, it may well be ultimately a good thing. They may decide, "Well, if I have to have the baby, I'm happy to have my baby."
But to me, the erosion of the ability of women to make judgments for themselves based on their own individual life decisions is never acceptable. And if the government can tell poor women they can't have abortions today, they can tell rich women another day. And that's the ultimate jeopardy that we're facing as a result of these kinds of losses. …
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