Considering Roe v. Wade over lunch


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(From left) Ken Falk, ACLU of Indiana's legal director, Rana Nicole, a writer and a human resources management consultant, and Steven Ivy, of the Indiana University Center for Bioethics. Photo courtesy of Mark Popovich, an ACLU board member.
  • (From left) Ken Falk, ACLU of Indiana's legal director, Rana Nicole, a writer and a human resources management consultant, and Steven Ivy, of the Indiana University Center for Bioethics. Photo courtesy of Mark Popovich, an ACLU board member.

Dear readers,

Today at lunch, I took a break from content management to attend a symposium exploring the significance of the 40th Anniversary of Roe v. Wade.

The case, decided by the U.S. Supreme Court in 1973, codified a women's constitutional right to an abortion based on the right to privacy afforded by the Fourteenth Amendment.

The symposium, part of the American Civil Liberties Union of Indiana's "First Wednesdays" discussion series held in the WFYI Community Room is sponsored in part by NUVO.

What follows is a hybrid summary and loose transcription of what I heard there. [For the record: Though the following reflects faithful reporting, it does not reflect an exact, word-for-word transcription. Some comments are omitted, condensed or summarized.]

I hope you find the discussion as fascinating as I did.

In her opening remarks, Jane Henegar, ACLU Indiana's executive director, recalled a generation of women who have real memories of back-alley abortions. Younger generations may not have personal experience with such inhumanity, but, she added the fight to prevent a return to such reality is ongoing.

"Women have always had to fight for dominion over their own bodies," she said. "For that fight, the ACLU will always be here."

Next to the podium: Betty Cockrum, Planned Parenthood of Indiana's executive director:

It's important to understand the 40th anniversary of Roe v. Wade. Some us do remember those years before it came to pass and some of us are stunned we are here in 2014 having to fight those same fights and re-gird our loins for what we thought was done situation.

Congratulations to ACLU on 60 – we just celebrated our 80th.

Everybody doesn't love us and we sometimes wonder if ACLU is less popular than Planned Parenthood; we go back and forth on that.

You don't get to 80 years unless you provide something that is valued and needed, and you are doing a pretty good job providing it."

[Note: Planned Parenthood is also a First Wednesdays sponsor.]

Next, the panel's moderator Maureen Hayden, statehouse bureau chief for CNHI newspapers in Indiana, which owns papers in towns such as Anderson, Batesville, and Rushville, set the stage of the day's discussion by noting a central conundrum arising in society's exploration of the abortion issue:

The majority of Hoosiers believe abortion should be legal in all or most cases (as reflected in the results of WISH TV/Ball State University 2012 Hoosier Survey), but 40 percent abortion should be illegal in all or most cases.

Ken Falk, ACLU of Indiana's legal director, whose clients have included the KKK, NAACP, Planned Parenthood and anti-abortion protestors, has practiced law for nearly four decades. In introducing him as a member of the panel, Hayden noted that Falk has realized over the course of his career, underscored especially by his experience arguing the unconstitutionality of random vehicle searches before the U.S. Supreme Court, that people tend to take our constitutional rights for granted until we miss them.

Falk offered a quick legal history of how Roe v. Wade came to be. He traced the modern notion of right to privacy to the 1890s – Louis Brandeis (who later became a U.S. Supreme Court Justice) wrote about the issue after the press crashed his law partner's wedding. Chief Justice Earl Warren, picked up on the notion, when he decided a case in the 1960s that said the liberties protected under the 14th Amendment to the U.S. Constitution extend to cover the right to privacy.

Falk continued:

The Supreme Court had said certain rights emanate from the word liberty, inherent in our lives as Americans. One of those rights coalesced around right to privacy.

When Roe v. Wade came up, it explored whether this notion of privacy encompasses abortion rights.

Supreme Court Justice Hugo Black introduced the concept of increasing regulatory burdens on abortion as a pregnancy progressed through the trimesters. The court later rejected this framework in favor an interpretation that prevented states from "imposing an undue burden" on a woman's right to have an abortion.

Now the abortion controversy surrounds the idea of if a state's policies place an undue burden. We see here in Indiana the vanguard of that in attempt to strip Planned Parenthood of all public funding, including Medicaid. [An effort the ACLU successfully fought in appeals court.]

Additional legal questions that may undermine access to abortion include:

Is it an undue burden to require even higher licensing standards?

Is it an undue burden to require abortion doctors, many of whom serve territories covering hundred of miles, to have practicing privileges at hospitals in every community in which they provide services?

Steven Ivy is senior vice president for values, ethics, social responsibility, and pastoral services at Indiana University Health. He did not speak on behalf of IU Health, but as someone with 35 years experience in, as stated in the program bio, a variety of hospital chaplaincy and pastoral counseling positions, and a lecturer at four schools of theology. Ivy earned a Masters of Divinity and Ph.D. from The Southern Baptist Theological Seminary in Louisville, Kentucky:

If the law establishes at least a minimum understanding of who we are as a people, when we turn to normative ethics, or people's moral codes, they tend to establish the maximum standard – who we are at our best.

What we have found that when viewed within a religious framework, Roe v. Wade has radicalized some elements of religious normative life.

Ivy also highlighted the normative ethic of women's consciousness, noting that the 19th Amendment to the Constitution, granting a women's right to vote, was added in 1920, less than 100 years ago. And it wasn't until 1964, with the passage of the Civil Rights Act, that the law prevented workplace discrimination against women.

For the 1973 decision to follow so quickly presented some core questions to which Americans, as a whole, were not used to asking in the public sphere:

Do women have ability and inherit right to decide for themselves, "Do I want to have sex today? If so, do I want to get pregnant today? If I do get pregnant, do I want to have that baby?"

Rana Nicole, a writer and a human resources management consultant with a bachelor's degree in sociology/law & society from Purdue University and a master's of business management from Indiana Wesleyan University. Her introductory remarks reflected on feminism in a post Roe world:

I think feminism and the strides feminism have made for women left out the black female initially. It left out the racial and class aspects of the equation. So the strides Roe made for the emancipation of women was just the beginning.

I'm sitting here as 2013 as a black women who still gets looks at the grocery. We're not in a post-racial or post-feminism society.

My mother is very tight-lipped. ... I had to go out and talk with other women – about what they think of Roe and on what abortion means, what reproductive rights mean.

The answers you get are different.

In broad terms, we have to continue this discussion one on one and on the national stage. If we don't talk, people will tend to forget there are things such as death at an abortion clinic.

Unintended pregnancy rates are rising for people in poverty and dropping for wealthier people. They are 5 times higher among people in poverty and higher among people of color.

Most things in life are rooted in access to resources... So you make choice that is in front of you or you are told is the option for you.

I've had many conversations about whether abortion disproportionally effect people of color.

You cannot ignore the numbers: There are more abortions among blacks and Hispanics than among Asians or whites.

I think it goes back to how we see people as contributors to society.

If we think that for people whose work it is to prevent one more single soul from being lost, more is done to support the birth of white than black babies.

For those who are pro-life [my chosen label is anti-choice]: How many children who are inadequately cared for have you taken under your wing? What do you do for that child beyond the birth of that child? There are those who would like to deregulate every aspect of society except for abortion and birth. ... Social service programs are threatened by the same people who want to take abortion off the books.

Steve: Maybe this is ethnic or racial, but I think it's more economic. Unfortunately, African Americans and Hispanics still have higher poverty rates.

To be fair, some religious groups are doing more to reach out to communities to provide resources over time. There are those actively opposed to abortion that get the poverty piece. ...

When the time came for audience questions, the first asked speaker to address current efforts in the Indiana Legislature that may be detrimental to reproductive rights.

Ken: Many years ago, Congress passed and the Supreme Court upheld a law that aside from extreme situations, you cannot get Medicaid to pay for abortions.

Only a tiny part of what Planned Parenthood does relates to abortion. The majority is public health services. Necessary health services, that Planned Parenthood provides more of than anyone else in Indiana and probably in the country, are paid for in part by federal money and state grants. The money is funneled through the state. The state passed a law that any entity that provides abortions cannot get public money, period.

Loss of those grants would have affected thousands and women and men. It was a clever approach because it does not restrict or place undue burden on abortions. But it punishes an entity for work it does with non-public funds.

The law passed and we went to get a temporary restraining order to prevent the law from denying thousands of people the public health services Planned Parenthood provides. The TRO was denied and Planned Parenthood lost the money, but an outpouring of donations came in to help support their until we were able to get injunction from the Court of Appeals in Chicago.

The law is not going to go into effect ... now you see different ways of attacking people's ability to get procedures.

Steve: Such efforts provide a nice example of the current power dynamic. We may not be able to control all women, but we can control poor women. It is a matter of male political power at work in the social setting.

Audience question: Why don't we use more Rosa Parks-type actions and go on the offensive?

Ken: We're dealing with the right of privacy – that is firmly established.

So from legal perspective, it will always be someone trying to whittle away that right of privacy.

Steve: The Religious Coalition for Reproductive Choice has an active program at six-10 theological schools offering curriculum on reproductive choice – how to offer a peaceful, supportive presence. This is from religiously oriented people, a template to use as we move forward.

Maureen: A Pew survey found six of 10 people don't want the court decision overturned, but about half the people think abortion morally wrong.

Steve: Even among religious groups there is much support for Roe v. Wade: 76 percent of mainline Protestants support Roe v. Wade; even 63 percent of white Catholics support it. Only two religious groups — white evangelicals and Hispanic Catholics — have a majority of members opposed. But broad opposition exists to the concept of abortion as birth control. But many people are also affirming of women's right to choice in the matter — even it means her right to be wrong.

If we fall in the ambivalent category and are in conflict – we fall silent.

Rana: What my faith tells me is judge not, lest ye not be judged.

Steve: When it's your own wife or daughter, they become very different conversations. When the decision becomes personal, all those things about what I thought I believed go out the window.

Ken: From a Constitutional Perspective: There are areas of privacy – we can't tell you want to say, where to worship, we can't come into your house. Though the abortion issue generates more excitement, it still is about a right to privacy.

Rana: I think it's import to have the male voice heard. When I heard Todd Akin's comments (U.S. Rep. Akin, R-Mo., suggested a sort of divine intervention prevented victims of "legitimate rape" from becoming pregnant), I laughed at first and then I thought "Oh, how said that is going out of the mouth of someone who wants me to vote for him." How dare anyone tell me what is best for my life and my body?

We need male voices to weigh in and advocate – some people don't fear your message because they don't like your package; it just becomes "oh, there's that woman again, what does she want now?"

Audience question: Are state's efforts to undermine reproductive rights an example of questionable separation of church and state?

Ken: Everyone has their own life view and to the extent your view is that abortion is a termination of human life, I think it is understandable that that person will push to restrict abortion.

Don't think just because politicians are pushing against abortion you they violating church and state. I think its an issue of interepting our Constitution.

Final Note: Planned Parenthood distributed a list of bills at the Indiana General Assembly in 2013 that are of concern to reproductive rights advocates. Visit the Legislature's website to track the progress of a certain bill or find a sponsor's contact information.



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