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Feminist Majority "Supreme Court in Peril" Chat Series of 2003

northupNANCY NORTHUP, Center for Reproductive Rights
On Life Without Legal Abortion: internationally, US pre-Roe and if Roe was overturned

Nancy Northup leads the Center for Reproductive Rights. She has extensive experience in constitutional impact litigation, criminal law, and protecting and promoting reproductive rights. Her advocacy for reproductive rights has ranged from grassroots organizing to impact litigation, working with organizations including NARAL, NOW, the Women's Political Caucus, and the ACLU. Before joining the Center for Reproductive Rights, she was the Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law, where she litigated nationwide a wide range of electoral reform cases and promoted equal participation rights in our democratic processes. She also taught constitutional law as an adjunct professor at NYU. From 1989 through 1996, she prosecuted federal crimes as an Assistant U.S. Attorney for the Southern District of New York, and served as Deputy Chief of Appeals.

Moderator: Welcome.
Nancy Northup: Hello
posted:7/2/2003 1:48:00 PM CST

Pauline: How likely is it that the Supreme Court would overturn Roe considering a majority of Americans are pro-choice?
Nancy Northup: The direct answer to the question is that whether Roe v. Wade will be reversed depends on who is appointed and confirmed to the Court in the future. The Bush Administration is appointing strong anti-choice judges to the federal bench and the President has said he admires Justices Thomas and Scalia, both firmly on record as advocating a reversal of Roe.
But we need to be looking not just at where Roe will stand tomorrow, but take stock on where it is today. In Roe, the Supreme Court recognized that women have a fundamental constitutional right to choose whether or not to have an abortion. The Court followed a long line of decisions recognizing a right of privacy from government involvement in intimate and personal decisions – decisions affecting child-rearing, marriage, procreation, and the use of contraception. In Roe, the constitutional right to choose abortion was accorded the highest level of protection by requiring strict judicial scrutiny of any government restrictions on abortion.
Thirty years later, the Supreme Court’s changed composition has weakened Roe. In 1992, in Planned Parenthood v. Casey, the Supreme Court upheld Roe by a single vote. Although Roe was saved, Justice O’Connor’s opinion watered down the strict scrutiny standard and replaced it with a vague “undue burden” test. That test has allowed restrictions on abortions ranging from waiting periods and biased counseling. In addition, since Roe , the Supreme Court has cut back on the availability of abortion by upholding requirements that minors get their parent’s consent or a court order and allowing states to deny poor women public funding for abortion, even when necessary for health reasons.
We need courts that will protect not only the abstract right in Roe, but its application to ensure that abortion remains an available option for all women.
posted:7/2/2003 2:01:00 PM CST

Carlie Steen: The Center was the only reproductive rights organization who issued a statement about the Lawrence v. Texas case and its connection(s) to our work in reproductive rights. I know that the Court cited all the major privacy/abortion cases in its decision. Could you talk about the connections between the case and the pro-choice movement? Also, do you think the holding in this case will have positive ramifications to the choice movement?
Nancy Northup: Yes, the Lawrence v. Texas case is a positive development for the choice movement and the constitutional underpinnings of the right to abortion. As the Center noted in issuing its statement on the Lawrenece v. Texas case, the case is the most significant decision on the right to privacy since Roe v. Wade. In the opinion, Justice Kennedy cites with approval the Court’s long line of cases on the right to privacy, including Roe v. Wade’s recognition of “the right of a woman to make certain fundamental decisions affecting her destiny.”
posted:7/2/2003 2:10:00 PM CST

Judy: I think one of the strongest arguments in support of Roe v. Wade is that, without it, U.S. women will still seek (unsafe, illegal)abortions and will die. Can you tell us about mortality rates in countries where abortion is illegal and how it is not too different from what can happen here?
Nancy Northup: There are 46 million abortions in the world each year. Of those, about 20 million are in countries where abortion is either highly restricted or illegal. 78,000 women die each year from unsafe abortions. In Chile, where abortion is illegal under all circumstances, there are close to six abortions for every 10 births. Many end up seeking medical treatment from grave injuries due to unsafe abortions -- and are often turned over to the police for prosecution. For more information about the devestating consequences of criminalizing abortion, you can find information on our website about our report Women Behind Bars: Chiles Abortion Laws.
posted:7/2/2003 2:15:00 PM CST

pam: In how many countries is abortion illegal?
Nancy Northup: Abortion is prohibited altogether or allowed only to save a womens life in 74 countries. One in four women live in these countries.
posted:7/2/2003 2:25:00 PM CST

Janice: How is Bush getting away with defunding UNFPA when he signed a bill into law which funded it and at a specific amount?
Nancy Northup: Hes using a provision called the Kemp-Kasten Amendment, which enables him to hold up all funding for UNFPA if he thinks it is participating in forced abortion or sterilization. Despite the fact that a team appointed by the White House to investigate allegations regarding the UNFPA program in China found NO evidence to support them and recommended that the U.S. continue to fund UNFPA, President Bush decided to defund. Americans across the country are outraged over the decision and are sending money directly to UNFPA, as well as urging Congress to legislatively overturn Bushs decision. The vote is expected to come up in Congress very soon.
posted:7/2/2003 2:28:00 PM CST

Jen: Im the co-director of the Womens Center on my campus, and I feel that the possibility of life without abortion rights is so distant to all my friends. Do you have any ideas for making it real to them? How do I make statistics from countries without abortion, and the US pre-Roe, seem relevant?
Nancy Northup: You make the statistics relevant by making them real with womens stories of illegal abortions pre-Roe. For example, the Center for Reproductive Rights has a book on illegal abortion in Nepal that contain the stories of women imprisoned in that country. There are also resources (including videos) available through organizations such as Planned Parenthood, NARAL, PRCH, NAF that present testimonials of women and doctors pre-Roe.
posted:7/2/2003 2:32:00 PM CST

Deena: I read somewhere that Bush has been doing a lot to restrict abortion. What are some of the things hes done, both above and below the radar?
Nancy Northup: To just name a few of the Bush Administrations assault on choice:
-- federal judicial nominations, which include individuals who have called for Roes outright reversal
-- his state of the union address calling on Congress to pass and promising to sign an abortion ban that would criminalize procedures starting as early as 12 weeks
-- issued the Global Gag Rule, which prohibits foreign non-governmental organization that receive US family planning funding from using their own money to provide abortions, counsel on abortions, or advocate for abortion law reform
-- appointed David Hager, who signed onto a petition to the FDA to revoke approval for mifepristone (RU-486), to the FDA reproductive health drugs advisory committee
posted:7/2/2003 2:41:00 PM CST

Alicia Yas: What do you have to say about the partial birth infanticide law that was just passed in Virginia? What implications do you think this might have?
Nancy Northup: Just yesterday, Center for Reproductive Rights lawyers obtained a preliminary injunction stopping the law from going into effect. The Virginia law is another deceptive attempt to ban a variety of abortion procedures used well before fetal viability. Moreover, it does not contain an exception for the health of the woman -- a provision that is constitutionally required. A similar law was held unconstitutional by the Supreme Court three years ago in Stenberg v. Carhart.
posted:7/2/2003 2:50:00 PM CST

Joy: If Roe is overturned, and the issue is left to the states, will most states criminalize abortion?
Nancy Northup: What many people do not realize is that some states still have on their books criminal abortion bans that may come back into effect the moment Roe is overturned. So those states may not have a new legislative debate about legal abortion if Roe is overturned, but may see decades old laws spring back to life. In addition, some states will clearly criminalize abortion. The consequences to overturning Roe would be significant.
posted:7/2/2003 2:57:00 PM CST

Moderator: Thank you for joining us today. I hope that you will be inspired to get involved in this very important fight to protect our rights. For more information and getting involved visit either the Center for Reproductive Rights website at or the Feminist Majority’s Million4Roe campaign site at Thank you for participating in our June chat series, Supreme Court in Peril. Please come back and read any transcripts of the chats you missed.
Nancy Northup: Many thanks to the Feminist Majority for hosting this engaging discussion.
posted:7/2/2003 3:00:00 PM CST

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