Stupak-Pitts Amendment: A Step Back for Abortion Rights

By Ralph E. Stone

November 18, 2009

The Stupak-Pitts Amendment to the health care bill passed by the U.S. House of Representatives prohibits the use of Federal funds “to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion” except in cases of rape, incest or danger to the life of the mother. The Amendment specifically allows individuals to purchase supplementary insurance that covers other abortions. Surprisingly, 25 members of the House who were considered firmly “pro-choice.” voted for the Amendment. Will there be similar defections in the Senate?

The Amendment won’t send us back to the time of coat hangers and back alley abortions, as some would have it, but it is a setback to the “pro-choice” movement. The strategy now is to convince the Senate to eliminate the amendment in its version of the health care bill and then totally eliminate it in the Bill that emerges from the conference committee.

Brief History of Abortion

This country’s abortion law has come a long way. In the United States, abortion laws began to appear in the 1820s, forbidding abortion after the fourth month of pregnancy. By 1900 most abortions in the U.S. had been outlawed.

Illegal abortions were still frequent, but became less so after passage of the Comstock Act, an “Act for the suppression of trade in, and circulation of, obscene literature and articles for immoral use.” The Comstock Act not only targeted obscenity, but also birth control devices and information on such devices, information on sexuality, and on sexually transmitted diseases. The Comstock Act was widely used to prosecute those who distributed information or devices for birth control. In 1938, in a case involving Margaret Sanger, a U.S. Circuit Court of Appeals case, U.S. v. One Package of Japanese Pessaries, lifted the federal ban on birth control, effectively ending use of the Comstock Act to target birth control information and devices.

Some early feminists opposed abortion because it was an unsafe medical procedure for women, endangering their health and life. Later feminists defended safe and effective birth control, when available, as another way to prevent abortion.

By 1965, all fifty states had banned abortion except (depending on the state) to save the life of the mother, in cases of rape or incest, or if the fetus was deformed. Violating these laws could have serious legal consequences, not only for the provider but potentially for others as well. In nine states, the laws considered it a criminal offense to aid, assist, abet or counsel a woman in obtaining an illegal abortion. Fourteen states explicitly made obtaining an abortion, as well as performing one, a crime. Women were rarely convicted for having an abortion; instead, the threat of prosecution often was used to encourage them to testify against the provider.

Some Startling Statistics

Estimates of the number of illegal abortions in the 1950s and 1960s range from 200,000 to 1.2 million per year. One analysis estimated 829,000 illegal or self-induced abortions occurred in 1967.

Many illegal abortions resulted in death. In 1930, abortion was listed as the official cause of death for almost 2,700 women—nearly one-fifth (18 percent) of maternal deaths recorded that year. The death toll had declined to just under 1,700 by 1940, and to just over 300 by 1950 (probably lbecause the availability of antibiotics in the 1940s, which cut down on infections that frequently developed after an illegal abortion). By 1965, the number of deaths due to illegal abortion had fallen to just under 200, but illegal abortion still accounted for 17 percent of all deaths attributed to pregnancy and childbirth that year. And these are just the number that were officially reported; the actual number was likely much higher. Poor women and their families were disproportionately impacted.

In 1970, New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy. In 1972, over 100,000 women left their own state to obtain a legal abortion in New York City and it is estimated that 50,000 women traveled more than 500 miles to obtain a legal abortion in New York City.

Roe v. Wade

In 1973, the U.S. Supreme Court in Roe v. Wade declared most existing state abortion laws unconstitutional. The Court held that a woman may abort her pregnancy for any reason, up until the “point at which the fetus becomes ‘viable.'” The Court defined viability as the potential “to live outside the mother’s womb, albeit with artificial aid,” adding that viability “is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” The Court further said that, after viability, abortion must be available when needed to protect a woman’s health, as defined in the companion case of Doe v. Bolton. The Court rested these conclusions on a constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment.

In the 1992 case of Planned Parenthood v. Casey, the Supreme Court overturned Roe’s strict trimester formula, but reemphasized the right to abortion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Some hailed these decisions, others, especially the Roman Catholic Church and conservative Christian groups, opposed the change. “Pro-life” and “pro-choice” became the names of the two movements, one to outlaw most abortion and the other to eliminate most legislative restrictions on abortions.

The latest abortion laws battle is over termination of late pregnancies, termed “partial birth abortions” by those who oppose them. Pro-choice advocates maintain that such abortions are to save the life or health of the mother or terminate pregnancies where the fetus cannot survive birth or cannot survive much after birth. Pro-life advocates maintain that the fetuses may be saved and that many of these abortions are done in cases that aren’t hopeless.

Abortion: A Women’s Rights Issue

It is indisputable that women have innate worth, inalienable rights, and valuable ideas and talents to contribute to society. But women are continually engaged in an ongoing fight for equality with men in all aspects of society.

The access to safe and legal abortions allows a woman to have the basic right of controlling her own body. Prior to legal abortion, women could undergo an unsafe, illegal abortion that put their bodies at risk or continue their pregnancy, even in situations that were disadvantageous to both the woman and the unborn fetus. Society has no right to control what happens to a person’s body; it does not try to manage men’s bodies in such a manner. The right to abortion has equalized women by giving them the right to manage their own bodies. The Stupak-Pitts Amendment limits this right.

Conclusion

The Stupak-Pitts Amendment is one step backward toward the reestablishment of a two-tiered medical system where the well-off can terminate an unwanted pregnancy while the poorest among us may be denied this option. History has shown that such a system is deleterious to the health of women, especially the disadvantaged.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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