EPILOGUE

Liberty and Sexuality, 1994–1998

Dr. David Gunn’s March 10, 1993, murder at the hands of Michael F. Griffin was only the first of five abortion clinic killings that “right-to-life” activists committed during 1993 and 1994. On July 29, 1994, Dr. John Bayard Britton and a volunteer escort, retired Air Force Lt. Col. James H. Barrett, were shot to death outside another Pensacola, Florida, clinic. Five months later, on December 30, 1994, two receptionists at different clinics in Brookline, Massachusetts, Shannon Lowney and Leanne Nichols, were murdered by yet another antiabortion gunman.

During those years, the vulnerability of clinics and abortion providers to deadly terrorist violence seemed to dwarf all the other political and legal dangers that Roe’s legacy and its defenders had endured in the years since 1973. But the onslaught of terrorism, bloody as it was, proved short-lived: the three subsequent years witnessed both no further shootings and a significant decline in the number of attacks and mass blockades visited upon clinic facilities. This evolution reflected the decline of right-to-life activism as a truly mass movement, but it also reflected the success that both newly muscular federal law enforcement efforts and consistently supportive court rulings had in combatting violent antiabortion protests.1

The early months of 1994 witnessed the successful prosecution of Michael Griffin for his killing of Dr. Gunn and the conviction of Rachelle “Shelley” Shannon for her attempted murder of Dr. George R. Tiller in Wichita, Kansas, in August 1993. Those months also witnessed a symbolically important Supreme Court ruling upholding pro-choice groups’ ability to use the federal Racketeer-Influenced Corrupt Organizations (RICO) conspiracy statute to pursue civil damage suits against antiabortion activists and an even more significant legislative victory in the overwhelming congressional passage of the new Freedom of Access to Clinic Entrances (FACE) Act of 1994.

The Supreme Court’s unanimous RICO decision, in National Organization for Women v. Joseph Scheidler, mandated that NOW and several Chicago-area clinics could proceed against the well-known Scheidler, and his Pro-Life Action Network, without having to prove that any specifically “economic” motive underlay antiabortion activists’ coordinated efforts to close down clinics. Although the case originally was filed in 1986, the January 1994 Supreme Court ruling may mark only a midpoint in its life. In 1997 a U.S. district judge certified it as a nationwide class action suit on behalf of “all women’s health centers in the United States at which abortions are performed,” and in 1998, after a seven week trial, a Chicago jury found the defendants liable. Further appeals were planned.2

When Michael Griffin’s murder trial got under way in Pensacola on February 28, 1994, his defense attorneys attempted to shift the blame for the three shots Griffin had fired into the back of the forty-seven-year-old Dr. Gunn on to local Rescue America regional director John Burt, whose antiabortion exhortations had inflamed Griffin’s feelings. Griffin and Burt had first met only two months before the killing, and the Florida jurors refused to be diverted. On March 5, after less than three hours’ deliberation, they found the defendant guilty of first degree murder. The thirty-two-year-old Griffin was immediately sentenced to life imprisonment, with no release possible for at least twenty-five years.³

Three weeks later Shelley Shannon was convicted of attempting to murder Dr. Tiller after confessing to the shooting on the witness stand while insisting that she had intended only to wound, not kill, him. In April, after also confessing to a series of attacks on West Coast clinics, Shannon was sentenced to more than ten years imprisonment. That fall, Shannon was indicted on federal charges for ten 1992–1993 arson and/or acid attacks on clinics in Oregon, California, Nevada, and Idaho, and in mid-1995 she pled guilty to six of them and was sentenced to an additional twenty years in prison on top of her penalty for shooting Tiller. Federal investigators had hoped that Shannon might implicate others in her crimes, but in the end she did not.⁴

The FACE legislation, which authorized both criminal charges and civil sanctions against violent abortion opponents, was in part a response to the Supreme Court’s January 1993 ruling in Bray v. Alexandria Women’s Health Clinic that federal judges could not use the Ku Klux Klan Act of 1871 against protesters who physically obstructed patients’ and providers’ access to clinic entrances. The FACE Act began to make its way through Congress in mid-1993, and both the Senate and the House approved slightly different versions of the measure in November. After agreement was reached on final language, first the House, by a vote of 241 to 174, and then the Senate, by a margin of 69 to 30, gave final approval to the bill, and on May 26, 1994, President Bill Clinton signed it into law. “No person seeking medical care, no physician providing that care should have to endure harassment or threats or obstruction or intimidation or even murder from vigilantes who take the law into their own hands because they think they know what the law ought to be,” Clinton declared.5

Clinton and his administration also took a resolutely forthright position in insisting that recalcitrant states had to abide by newly liberalized federal statutory language providing for Medicaid coverage of abortions occasioned by rape or incest. That slight loosening in the strictures of the annually adopted Hyde Amendment for fiscal year 1994 had represented less than pro-choice lobbyists initially had hoped to win, but the modest expansion was the first time since 1981 that the Hyde limitations had allowed for federally funded abortions other than in cases where a woman’s very life was endangered. As many as fourteen states—Arkansas, Colorado, Illinois, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah—announced their intention to defy the new regulations implementing the rape and incest coverage, but administration officials were unyielding and a series of federal court suits in Colorado, Michigan, Montana, Arkansas, and Louisiana—all decided between mid-May and the end of July—rapidly whipped the laggards into line.⁶

One day after the Senate gave final approval to FACE, President Clinton nominated First Circuit Court of Appeals Chief Judge Stephen G. Breyer as the Supreme Court successor for Justice Harry A. Blackmun, who had announced his end-of-term retirement five weeks earlier. Breyer, who in 1965 as one of Arthur Goldberg’s clerks had played a principal role in Griswold, had been a close runner-up a year earlier when Clinton had named D.C. federal appellate judge Ruth Bader Ginsburg to the Court to succeed the retiring Byron R. White. Ginsburg’s elevation in place of White had represented a one-vote gain for pro-choice voices on the High Court, and Blackmun’s replacement with Breyer—who, like Ginsburg, won easy confirmation by the Senate—allowed Roe’s author to step down with the comfort that Casey, if not all of Roe itself, now commanded a six-to-three margin of support on the Court.7

Pennsylvania’s mandatory counseling and twenty-four-hour waiting period regulations, which the Court in Casey had declined to find facially unconstitutional, finally took effect only two weeks prior to Blackmun’s announcement amid considerable media attention. Lower court reviews had delayed implementation for almost two full years, with the Third Circuit Court of Appeals refusing Planned Parenthood’s request for a reexamination of the challenged provisions while explicitly acknowledging that the Supreme Court’s 1992 holding “meant that a future ‘as applied’ challenge … would be possible” after the legislation took effect and that such a post-enforcement challenge “might yield a different result on its constitutionality.” Initially the implementation of the twenty-four-hour waiting period restriction meant that women in Pennsylvania had to make two separate clinic visits, the first to hear the state-mandated “counseling” information from a physician and the second for the abortion itself, but within a few months Pennsylvania clinics were able to avert the first trip by having patients listen by telephone to a tape of a doctor reciting the required information. In May 1995, however, state authorities successfully insisted that Pennsylvania providers had to “orally inform” their patients in person, and the two-visit requirement was reinstated. North Dakota and Ohio clinics used telephone messages to comply with their states’ waiting period statutes, but in Mississippi, like Pennsylvania, women had to make two separate in-person visits to a doctor.⁸

Potentially far more encouraging for abortion patients and providers was the mid-May news, released just four days after the Senate’s passage of FACE, that the European pharmaceutical giant Roussel Uclaf, in response to intense political pressure from the Clinton administration, was turning over its U.S. patent rights and technology for the abortifacient drug RU-486 at no cost to the New York-based nonprofit Population Council. Lawrence Lader’s small Abortion Rights Mobilization (ARM) already had manufactured a few doses of mifepristone (the scientific name for the synthetic steroid known more popularly under its Roussel Uclaf designation RU-486) in the United States, but the costs and difficulties involved in producing a large-scale supply of mifepristone for the entire American market would require both significant financing and a major manufacturer. ARM was aiming to launch its own modest American clinical trials of RU-486—no patent infringement would occur if patients received the drug free—but the Population Council envisioned large-scale fall 1994 clinical trials so that the federal Food and Drug Administration (FDA) would be able to complete its review of RU-486 and approve the drug for nationwide use by sometime in mid-1995. Right-to-life advocates threatened a boycott of other Roussel products, but news reports made it clear that FDA approval and widespread availability of RU-486 would not represent an abortion rights panacea. European experience showed that mifepristone—which impedes a fertilized egg from attaching to the uterine wall—could be used effectively only during the first eight or nine weeks of pregnancy. Indeed, an initial oral dose of mifepristone had to be followed by oral or vaginal application of a second drug, misoprostol, to trigger uterine contractions. This would require at least two medical appointments plus twenty-four-hour-a-day access to emergency medical care should rare but dangerous heavy bleeding ensue. Many women might prefer the “natural” quality of such a “medical” miscarriage to the “surgical” invasiveness of vacuum aspiration, but it required a more time-consuming commitment than a onetime clinic visit.9

Abortion proponents emphasized how the availability of mifepristone, which any doctor could administer in a private office, could radically diminish the battleground atmosphere that surrounded many of the well-known specialty clinics where most abortions were performed. The advent of FACE, however, coupled with more and more court rulings restricting and penalizing obstructive or violent protests, signalled that the heyday of right-to-life blockades was quickly fading. That pattern was highlighted on June 30, 1994, when the U.S. Supreme Court, in a case from Melbourne, Florida, Madsen v. Women’s Health Center, upheld by a six-to-three margin a state trial court injunction that prohibited antiabortion protesters from coming within thirty-six feet of the clinic’s doors and driveway. Antonin Scalia penned an angry dissent, which was joined by fellow justices Anthony M. Kennedy and Clarence Thomas, but the majority opinion authored by Chief Justice William H. Rehnquist—no friend of abortion rights—cited the repeated instances of illegal conduct by Operation Rescue activists in upholding both the buffer zone provision and a prohibition on excessive noise.¹⁰

The first federal arrests for criminal violations of FACE took place in Milwaukee before the new law was hardly twelve days old. A few weeks later, when Operation Rescue, Rescue America, and Joseph Scheidler’s Pro-Life Action Network announced plans for a major early July protest in President Clinton’s hometown of Little Rock, Arkansas, their press-release assertions turned into empty threats when only about sixty demonstrators showed up to target Little Rock’s four clinics. Courtroom challenges to the constitutionality of FACE—which provided both fines and multiyear prison sentences for anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate, or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services”—were quickly and consistently turned aside.11

But neither FACE nor any other law could guarantee an end to antiabortion terrorism, and that unavoidable fact was brought home in painfully bloody fashion on the morning of July 29, when Dr. John Bayard Britton, age sixty-nine, and his volunteer driver, retired Air Force Lt. Col. James H. Barrett, seventy-four, were shot to death outside a Pensacola abortion clinic by Paul J. Hill, a well-known right-to-life activist. Armed with a 12-gauge shotgun, Hill had waited for Britton, Barrett, and Barrett’s wife, June (who was wounded in the arm), and then methodically gunned them down as they sat in the cab of Barrett’s pickup truck in the clinic parking lot. Hill was immediately taken into custody and charged with two counts of capital murder.

Ironically, few observers familiar with Pensacola’s history of anti-abortion violence were surprised that Hill, age forty, had finally picked up a gun. A onetime minister, Hill had first become a public figure in right-to-life circles soon after the 1993 killing of Dr. David Gunn, when he spoke out in support of Gunn’s killer, Michael F. Griffin. Early in 1994, Hill had told the Dallas Morning News, “If an abortionist is about to violently take an innocent person’s life, you are entirely morally justified in trying to prevent him from taking that life.” Hill had insisted to other reporters that he had no intention of acting on his own advice, saying “Violence is not my calling,” but in a painfully eerie coincidence, a February 1994 magazine article that profiled John Bayard Britton as “The Abortionist” also pictured Hill as Pensacola’s most dangerous protester. “Paul Hill believes in the potentialities of murder,” the profile noted; a photo caption added that among regular demonstrators, Paul Hill is “the one who frightens the employees [at the clinic]”—where five months later he would kill Britton and Barrett.

Three months before Hill committed the two shootings, anti-abortion activists met privately at a hotel outside Chicago for an intense debate about the acceptability of murder as a political act. Hill was the most vociferous in support of doctor killing, and Joseph Scheidler later acknowledged that even he was “surprised at how much support there was for Paul Hill.” Asked about Hill, newly named Operation Rescue national director Flip Benham of Texas told reporters, “I think what he’s saying is heresy, it’s sin, it’s murder, it’s wrong, and it solves nothing, only makes things worse,” but Andrew Burnett, an Oregon activist who sided with Hill, said that Benham had lost the debate. “Flip thought he was going to change people’s minds. He didn’t; he polarized people even farther.” Even Benham admitted that Hill’s position had prevailed: “I think I was in the minority.”12

Support for Hill’s view had been growing ever since Michael Griffin’s killing of David Gunn in March 1993, and Hill was far from the only well-known right-to-life voice who had been advocating the politics of murder. Michael Bray, a Maryland pastor and convicted clinic bomber, had spoken up immediately on Griffin’s behalf and subsequently expanded upon his views in both an academic essay and a paperback book memorably entitled A Time to Kill. “With the passage of the FACE bill,” Bray explained, “the central government has confirmed itself in all three branches as an adversary of Christians.” Griffin’s killing of Gunn was “justifiable homicide,” since the abortions that Gunn had been scheduled to perform that day did not take place and some perhaps never did, “thus firmly establishing the shooting as sensible and salutary.” In his book, published by Andrew Burnett’s ironically named Advocates for Life, Bray reiterated, “Where baby killing takes place, it is right and good to intervene with force to prevent such a blasphemous deed. The thorny issue of overthrowing our apostate government is another subject.”¹³

In the wake of Britton’s and Barrett’s murders, federal law enforcement authorities stepped up their protection of other clinics and doctors and launched a new investigation into whether any criminal conspiracy linked Hill to other “justifiable homicide” advocates such as Bray, Donald Spitz, the head of Pro-Life Virginia, and David Trosch, a Roman Catholic priest from Alabama. The angry April debate outside Chicago had led to the creation of a new network among those activists who rejected Benham and Operation Rescue’s antimurder stance, the inaptly named American Coalition of Life Activists (ACLA). But press attention quickly focused not on the ACLA network but on attorney Michael R. Hirsh, a recent graduate of Pat Robertson’s Regent University School of Law in Virginia Beach, Virginia, who had been representing Paul Hill in a preexisting Florida court case and who also had written both a master’s thesis and a law review article defending the killing of abortion doctors. The Regent University Law Review quickly withdrew and destroyed all copies of the newly printed article, but the thesis—dedicated to Michael Bray—remained available for public review. As with Bray, Hirsh’s argument was plausible if one agreed with his fundamental premise: “If we believe that an unborn child is in fact a child … no consistent basis exists for denying the logical conclusion of our rhetoric: That Michael Griffin’s act is justified.” Hirsh contended that in killing David Gunn, Griffin had “acted prudently and reasonably,” but Hirsh’s employer—Robertson’s American Center for Law and Justice—fired him when he sought to expand his representation of Paul Hill to include defending the murders of Britton and Barrett.14

In addition to facing state capital murder charges, Hill was indicted in federal court under the criminal provisions of FACE. After U.S. District Judge Roger Vinson refused to allow Hill to introduce a “justifiable homicide” defense, Hill dismissed his court-appointed attorneys and, acting as his own attorney, passively refused to cross-examine prosecution witnesses or introduce any of his own during a speedy, three-day trial. On October 5, after just two hours of jury deliberations, Hill was found guilty.¹⁵

Less than four weeks later Hill’s state court trial got under way under similar circumstances. Michael Hirsh was unqualified to represent a Florida defendant facing the death penalty, and again Hill acted on his own behalf. Hill was allowed to introduce a slightly revised version of Hirsh’s canceled article as a defense brief, but he again declined to cross-examine prosecution witnesses or to call any of his own. Testimony established that Hill had purchased the 12-gauge pump-action shotgun two days before the murders and had practiced with it twice at a public shooting range. The jury took only twenty minutes to find Hill guilty, and then deliberated for an additional four hours before recommending the death penalty rather than life imprisonment. One month later Judge Frank Bell affirmed the jury’s finding and sentenced Hill to death, a sentence endorsed by Operation Rescue national director Flip Benham. Hill told a television interviewer, “I am certainly guilty of no crimes,” and went on to say that his shooting of Britton and Barrett was “honorable.” “I’m not saying that what I did was legal, but I’m saying that what I did was moral.”

Hill later revealed that he had started thinking about bloodshed after Shelley Shannon had shot George Tiller: “I was encouraged and emboldened by her example.” Hill said he had made up his mind eight days in advance and had bought the new shotgun only after one he owned had jammed when he was practicing with it. Asked why he had shot James Barrett as well as Dr. Britton, Hill replied, “Because he was directly between the abortionist and me. I was actually aiming at the abortionist, but he was directly between us.” Hill volunteered that he believed in the death penalty—“I couldn’t have shot that abortionist if I didn’t”—and wanted his own sentence to be carried out, since martyrdom could be politically valuable: “I am hoping it will be upheld and that I will be executed.… I think I can save more people dead than alive.”16

On the medical front, the fall of 1994 brought news that several physicians had successfully begun small-scale tests using another drug, methotrexate, in place of mifepristone (RU-486) to induce early term miscarriages. In addition, the Population Council announced that its initial trials of RU-486 at half a dozen Planned Parenthood clinics across the country were showing that such “medical” abortions were highly popular with most women who underwent the procedure.¹⁷

In the November elections, Wyoming voters rejected by an overwhelming margin of 69 to 31 percent an antiabortion initiative that right-to-life activists had placed on the statewide ballot. Nationally, however, Republican congressional gains of 39 seats in the House of Representatives and 5 in the Senate meant that the new Congress would be more heavily antichoice—some 218 out of 435 House members and 45 of 100 senators—than at any other time since Roe v. Wade.¹⁸

Deadly right-to-life terrorism reappeared the day before New Year’s Eve when a twenty-two-year-old antiabortion protester, John C. Salvi III, gunned down receptionist Shannon Lowney, age twenty-five, at a Planned Parenthood clinic in the Boston suburb of Brookline and then drove a mile and a half down Beacon Street to kill a second receptionist, Leanne Nichols, age thirty-eight, at a Preterm Health Services clinic. Five other people were wounded, including a Preterm security guard who returned fire, forcing Salvi to drop a bag that contained an ammunition purchase receipt, which enabled law enforcement investigators to identify him. As police tried to find him, Salvi drove south and the very next day opened fire outside the Hillcrest Clinic in Norfolk, Virginia. A Norfolk Fire Department arson investigator happened to witness the shooting and immediately summoned police; Salvi was arrested in his pickup truck just a few blocks away.

A student hairdresser whom acquaintances viewed as a withdrawn and deeply religious Roman Catholic, Salvi seemed potentially unbalanced, yet the day before the Brookline killings he had gone to a gun range to practice with his rifle. Questions about Salvi, however, were quickly overshadowed by the defiantly happy reactions of some antiabortion radicals. Asked about Salvi’s attack, Donald Spitz told reporters, “It’s justified, it’s moral, it was a righteous act,” for “babies deserve to be defended at any cost.” Don Treshman of Rescue America declared, “We’re in a war.… The only thing is that until recently the casualties have only been on one side. There are 30 million dead babies and only five people on the other side, so it’s really nothing to get all excited about.”19

In a far different response to the killings, Boston’s Archbishop Bernard Cardinal Law, an outspoken opponent of abortion, asked for a temporary moratorium on anticlinic protests. Some responded to his request, but Operation Rescue’s Flip Benham called it “unconscionable” and the American Coalition of Life Activists (ACLA) distributed a hit list of twelve abortion doctors whom it labeled the “Deadly Dozen.” Salvi’s parents expressed their regrets over the shootings and apologized for not having gotten psychiatric help for their son after earlier religious delusions. Seven months later, after repeated hearings, a Massachusetts state trial court found Salvi mentally competent to stand trial, and in March 1996 a jury rejected his insanity defense after nine hours of deliberations and found him guilty. Salvi was sentenced to two consecutive terms of life imprisonment without possibility of parole; eight months later he committed suicide in his prison cell using a plastic bag. Only a few news reports highlighted how Michael Bray’s Washington-area church sponsored a banquet to honor the actions of Michael F. Griffin, Paul J. Hill, and John C. Salvi III.²⁰

While neither shootings nor arson attacks could be prevented by court rulings, in the aftermath of the Brookline killings there were an increasing number of both state and federal judicial decisions aimed at clamping down on dangerous antiabortion protests. Montana’s Supreme Court affirmed a ten-year sentence that had been meted out to one protester who had deluged Bozeman clinic owner Dr. Susan Wicklund with death threat letters that both prosecutors and jurors judged to be the real thing. In Fargo, North Dakota, where antiabortion protests had been a constant fact of life since the Fargo Women’s Health Organization, North Dakota’s only clinic, first opened in the fall of 1981, U.S. District Judge Rodney S. Webb ordered one particularly menacing demonstrator to remain 100 feet away from both the clinic and its staff members at all times. A Fargo ordinance prohibiting residential picketing was struck down by an appeals court, but when demonstrators brought civil damage actions against the city and its police officers after some protest arrests were dismissed, the federal courts dismissed the protesters’ claims.21

As intensified law enforcement further reduced abortion opponents’ ability to obstruct clinic services by blockading entrances and harassing staff members, right-to-life groups turned to a new method of attacking abortion providers: civil damage suits brought on behalf of women who had had unsatisfactory clinic experiences. Taking the lead in this effort were Louisville, Kentucky, attorney Theodore H. Amshoff, Jr., and Mark Crutcher, founder of Life Dynamics, a well-funded litigation-sponsorship group based in Denton, Texas.

Both men predicted a raft of what one newspaper called “costly settlements and well-publicized jury verdicts against doctors,” but their assertions—particularly Crutcher’s—of a large and ever-growing caseload of suits on behalf of women who supposedly had been injured by abortion doctors proved impossible to substantiate: comprehensive searches of nationwide judicial and news information databases turned up evidence of only a handful of such cases. Crutcher’s professed hope was that aggressive litigation might eventually make insurance coverage unavailable to abortion providers, but he and Amshoff had a further goal as well: to legitimate the notion that women who years later came to regret an earlier abortion could file suit claiming “emotional trauma.” That idea had no basis in precedent and generated no courtroom support, but Amshoff was able to litigate successfully at least two cases—one in Pittsburgh, another in Birmingham—in which women had died as the result of improperly performed procedures.²²

Amshoff’s ability to pursue such cases was the result of something that most abortion proponents were loath to discuss in public: “There’s a lot of bad medicine being practiced out there in the name of choice,” as Dr. Warren Hern, the country’s best-known abortion provider, told the New York Times. No worse example existed than Dr. Thomas W. Tucker, age fifty, an operator of three clinics in Alabama and Mississippi whose conduct led to the death of Angela Hall, a twenty-one-year-old mother of five who went to Tucker’s Birmingham clinic in April 1994 to have a Norplant contraceptive device removed from her arm. Another patient had died in 1991, and Tucker already faced professional charges resulting from that death. Just a few days after Ms. Hall’s demise, Tucker’s Mississippi medical license was suspended, and two months later he surrendered his Alabama one. In December 1996 a Birmingham jury awarded Hall’s family $10 million in damages following a trial that Tucker declined to attend.

But Tucker was not alone. Soon after John Bayard Britton’s killing, news reports revealed that the physician who had replaced him, Steven C. Brigham, already had had his medical license suspended in both New York and Georgia and had surrendered it in Pennsylvania. New Jersey hearings on professional charges against Brigham, who had no specialty training in obstetrics and gynecology, showed women had suffered both uterine perforations and cervical lacerations during second-trimester abortions. Early in 1995 Florida suspended Brigham’s license and subsequently revoked it; in February 1998 Brigham was convicted of insurance fraud in New York and faced several years of imprisonment.

Early in 1996 Mark Crutcher and Life Dynamics published an impressively footnoted compendium of every recorded complaint lodged against any abortion provider since—and in some instances even before—Roe v. Wade. The book suffered from both a weird title—Lime 5: Exploited By Choice—and a complete use of numbered pseudonyms in place of doctor’s real names, but copies of the volume were sent to every member of Congress and to every state legislator in all fifty states. Crutcher quoted Warren Hern’s criticism that “there’s a lot of crummy medicine being practiced out there in providing abortion services,” but the book’s failure to name names made its recitation of medical horror stories numbingly impersonal. Crutcher, however, like Michael Bray, was no one’s fool; his assertion that “the abortion industry needs to acknowledge that they are not being destroyed by any pro-life success but by one of their own failures,… [namely that] they have been unable to make abortion socially acceptable,” was uncomfortably close to the mark. His further observation that “the abortionist basically exists without a support network, either within or outside the abortion industry,” was one few providers would dispute. But Crutcher’s pose as primarily a foe of bad medicine was decidedly incomplete; early in 1997 one newspaper, covering a Crutcher speech at the annual dinner of an ostensibly mainstream right-to-life organization, reported that when questioned “Crutcher declined to express an opinion about violence that is directed against abortion clinics.”23

Even well before the murders committed by Paul Hill and John Salvi, NARAL president Kate Michelman had acknowledged how “provider availability is rapidly becoming the Achilles heel of the pro-choice and reproductive freedom movement.” One response to that growing realization was the creation of Medical Students for Choice as a network for incipient pro-choice doctors; another was Planned Parenthood of New York City’s initiative to offer abortion-services training in its clinics to young M.D.’s who were in residency training programs at New York hospitals. Research data showed that fewer and fewer hospitals were offering either abortion training or abortions; by the early 1990s only some 7 percent of abortions nationwide took place in hospitals while almost 70 percent were performed at clinics. One chairman of an obstetrics and gynecology program stressed that “the freestanding clinics are much less expensive and much more user-friendly,” but an editorial in the New England Journal of Medicine rued how the clinics are “isolated and marginalized from the mainstream of our health-care system.” A dean at Yale’s medical school observed, “If abortion could be more a part of obstetrical practice and not isolated into abortion clinics, we’d be a lot before off,” and early in 1995 the American Council for Graduate Medical Education mandated abortion training for all obstetrics and gynecology residents except conscientious objectors.²⁴

Many abortion providers acknowledged that right-to-life harassment was less of a problem for them than loneliness and ambivalence. One New England doctor who gave up doing abortions said harassment was not the problem: “I could have put up with some more, but I felt no sense of community support at all. I could have taken a lot more abuse,” but the absence of encouragement was enervating. “That demoralized me. It made me pretty bitter.” The most comprehensive research—carried out by a onetime clinic owner who also had been president of the National Abortion Federation (NAF), the major providers’ group—showed that “the vast majority of abortion workers experience minimal strain despite extensive antiabortion harassment and violence.” In a different vein, however, many providers privately admitted to negative feelings concerning “repeaters,” women who were returning for a fourth or fifth abortion, and some supportive students of clinic cultures worried about the counseling women received at at least some facilities: “as long as abortion providers share a view of abortion as stigmatized and morally reprehensible, clients will be serviced, but not well-served.”25

Statistics showed a small, year-by-year decline in the overall number of American abortions during the early 1990s, but researchers were disinclined to attribute the modest decreases to either right-to-life harassment or the concentration of abortion services at freestanding clinics. Difficulty of access involving travel distance appeared to have some effect, but state laws imposing twenty-four-hour “waiting periods,” such as those in Pennsylvania and Mississippi, seemed not only to cause some women to travel to less restrictive neighboring states, and others to delay their abortions until later in pregnancy, but also to lead to an approximately 10 percent overall decline in abortions, at least among Mississippi women.²⁶

Mississippi was a typical out-of-the-limelight abortion battleground. Up until Susan Hill’s National Women’s Health Organization, the operator of eight clinics reaching from Florida to Wisconsin, opened the Jackson Women’s Health Organization in February 1995, there had been just one provider in the entire state, Dr. Joseph Booker, Jr., who worked in both Jackson and Gulfport. Booker daily had to cope with the efforts of full-time protester Roy McMillan, who was supported by his spouse, Dr. Beverly Smith, a former abortion provider. McMillan had signed a public petition endorsing Paul Hill’s killing of Britton and Barrett—“whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child”—and when the new second clinic opened, McMillan transferred his efforts there. Clinic employees were met with repeated threats of deadly force from McMillan, and within several months federal prosecutors sought and obtained a FACE injunction against McMillan, forcing him to come no closer to the clinic than the far side of the adjoining street. McMillan then shifted his focus back to Booker’s clinic, but the legacy of Paul Hill meant that no one took McMillan’s ongoing presence lightly.²⁷

In Dallas Dr. Norman Tompkins, who had endured perhaps more personal harassment than any other single provider—and who subsequently had left town and stopped performing abortions—successfully pursued a federal civil RICO action against Operation Rescue and thirty-three individual protesters. Tompkins won an $8.4 million judgment from a Dallas jury, but he had no illusions about ever being able to collect more than a small fraction of the award. Several years earlier Portland, Oregon’s Lovejoy clinic had won an $8.2 million judgment against Advocates for Life but had been unable to collect more than about $20,000. Likewise, just a year earlier Planned Parenthood of Houston had won more than $200,000 in actual damages and $1 million in punitive damages in a lawsuit against Operation Rescue, but success in collecting the judgment was limited to such a symbolic effort as seizing office furniture that yielded a grand sum of $3,325 when sold at sheriff’s auction.28

By the spring of 1995 pro-choice forces were winning virtually all of their battles, both in court and on clinic sidewalks, against dangerously obstructionist opponents of abortion, but in June the national abortion debate began to experience its most significant alteration since the Supreme Court’s resounding decision in Planned Parenthood v. Casey three years earlier.

Prior to June 14, 1995, the phrase “partial birth abortion” had hardly appeared in print anywhere in America. The label had no pedigree whatsoever in medical terminology, but that did not stop either the National Right to Life Committee or Florida Republican representative Charles T. Canady from applying it to a late term abortion technique that Ohio provider Dr. Martin Haskell had detailed in a paper delivered at a September 1992 NAF medical seminar in Dallas. For pregnancies of twenty weeks or more, Haskell had found it preferable to remove the fetus from the womb largely intact, after having collapsed the skull so that the fetal head could exit the cervical os, rather than remove it in pieces. As Haskell described it, his technique, which he termed “dilation and extraction,” or “D & X,” “differs from classic D & E [dilation and evacuation] in that it does not rely upon dismemberment to remove the fetus. Nor are inductions or infusions used to expel the intact fetus,” an older, more dangerous method for late term abortions.

Ten months later the American Medical News, a professional weekly, published an excellent story on how both Haskell and Dr. James McMahon of Los Angeles had pioneered the technique, which sometimes was called “intact D & E” instead of “D & X.” Any such abortion was a three-day procedure, requiring two preparatory days of cervical dilation, and together Haskell and McMahon performed approximately 450 such procedures a year. McMahon, like Warren Hern, who used a different procedure, specialized in postviability third trimester abortions involving fetal defects; Haskell performed previability twenty- to twenty-four-week late second trimester abortions, of which he estimated 80 percent were elective rather than medically indicated.

Representative Canady and the National Right to Life Committee, however, of course had no interest in distinguishing between pre- and postviability abortions; their hope was to somehow once again outlaw all abortions, and the Partial-Birth Abortion Ban Act that Canady introduced on June 14 was a first step in that direction: any doctor who “partially vaginally delivers a living fetus before killing the fetus and completing the delivery” could be jailed for up to two years and also could be civilly sued by either the fetal parents or its maternal grandparents! Following a pro-forma one-day hearing, Canady’s own House Judiciary subcommittee approved the bill on a party-line vote of 7 to 5, and six days later the full Judiciary Committee did the same by a margin of 20 to 12. Abortion politics were beginning to reflect just what Republican control of Congress could entail.29

Right-to-life activists received an even more publicized boost in mid-August when Norma McCorvey, “Jane Roe” of Roe v. Wade, suddenly jettisoned her pro-choice stance and signed on with Reverend Flip Benham’s Operation Rescue. Both McCorvey and her partner, Connie Gonzales, were working at a Dallas clinic when Benham succeeded in relocating Operation Rescue’s office to rental space next door. Initial hostility soon evolved into quasi-friendly, teasing exchanges between McCorvey and the very personable Benham; one magazine commented on “the peculiar warmth” they had developed. Benham understandably appealed to what one journalist termed McCorvey’s “insatiable yearning for love and attention,” a yearning that pro-choicers had never adequately satisfied. In addition, as McCorvey emphasized in her 1994 autobiography, her retrospective realization that in 1970 Sarah Weddington could have helped her get an abortion, but chose not to, greatly intensified her resentment toward her onetime lawyer. “I was nothing to Sarah and Linda [Coffee],” McCorvey groused, “nothing more than a name on a piece of paper.” When Weddington in her own 1992 autobiography revealed for the first time that she had obtained a Mexican abortion well before Roe, McCorvey’s anger turned to fury. “When I told her then [in 1970] how desperately I needed one, she could have told me where to go for it. But she wouldn’t because she [thought she] needed me to be pregnant for her case.” A front page New York Times news story stressed “the immense symbolic importance” of McCorvey’s defection, but her metamorphosis actually had little to do with abortion and far more with how Benham gave her the warmth and respect she rarely had felt from Roe’s supporters.³⁰

One critic who assigned too much import to McCorvey’s conversion was the pseudo-feminist writer Naomi Wolf, who claimed that “McCorvey should be seen as an object lesson for the pro-choice movement.” In a histrionic essay in the New Republic, Wolf called for “a radical shift in the pro-choice movement’s rhetoric and consciousness about abortion” and denounced what she called the movement’s “abandonment of … an ethical core.” Hoping to represent what she said were “millions of Americans who want to support abortion as a legal right but still need to condemn it as a moral iniquity,” Wolf espoused “a moral framework that admits that the death of a fetus is a real death.” Contending that “our current pro-choice rhetoric leads to disaster,” Wolf advocated “a new abortion rights language” and “an abortion rights movement willing publicly to mourn the evil … that is abortion.” Wolf seemed oblivious to the myriad difficulties that would ensue—for a movement, for organizations, for individuals—were they to embrace the notion that what they were championing and defending was in its essence an “evil.” Her stance went well beyond that of the Common Ground Network for Life and Choice, a conversation-between-opponents venture that right-to-life lawyer Andrew Puzder and clinic executive B. J. Isaacson-Jones had pioneered in St. Louis. Indeed, even Wolf herself finally questioned the wisdom of her notion that labeling abortion a “necessary evil” strengthened pro-choice defenses: “Let’s pray that I’m not wrong about this,” she fretted. “God forbid the discourse changes and we lose Roe. I’ll be the first to fall on my sword.”31

On November 1, 1995, the full House of Representatives, by an overwhelming vote of 288 to 139, passed the Partial-Birth Abortion Ban Act that Representative Canady and the Judiciary Committee had put forward five months earlier. Seventy-three Democrats joined with all but fifteen Republicans in backing the measure. The bill did allow a physician an “affirmative defense” against criminal charges if a supposed “partial birth” abortion was the only way in which a woman’s life could be saved, but the measure contained no reference to fetal age, thereby potentially criminalizing any abortion—even previability ones early in the second trimester—in which the method of fetal evacuation might be covered by Canady’s ambiguously vague language.

Six days later the U.S. Senate began floor debate on the House-passed bill, but opponents of the act, hoping to win addition of a broader “woman’s life” exception, managed to have it sent to the Senate Judiciary Committee for a one-day hearing. On December 7 the bill returned to the Senate floor with a broader exception, but an effort to expand it to also allow use of the “partial birth” method to preserve women’s health failed by a 51 to 47 vote. Then the bill itself—now no longer identical to the House-passed measure—won approval on a 54 to 44 tally.32

President Clinton promised a veto, but in late February he publicly sent Congress written notification that he would sign such a bill if the House and Senate agreed to broaden the “woman’s life” exception to also include instances involving “serious adverse health consequences.” The House subcommittee held another brief hearing on the measure, and on March 27 the full House adopted the Senate version without alteration by a vote of 286 to 129. Two weeks later the president made good on his earlier promise and vetoed the bill just prior to meeting with five women who had had late term “partial birth” abortions of abnormal fetuses.³³

Efforts to enact similar bans on “intact” abortions were also under way in a growing number of individual states, but the first such law, in Ohio, was quickly voided in federal court. “Use of the D & X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D & E procedure” or the old-fashioned induction method, U.S. District Judge Walter H. Rice found. But not only did the statute prohibit what potentially was “a safer procedure than all other available abortion procedures,” it also—like Canady’s bill and even President Clinton’s stance—improperly sought to abridge the comprehensive postviability protection of women’s health that explicitly was acknowledged in Doe v. Bolton (and in U.S. v. Vuitch even earlier) and expressly reaffirmed in Casey. A state, Judge Rice noted, “may not constitutionally limit the provision of abortions only to those situations in which a pregnant woman’s physical [as distinct from mental] health is threatened.… Under Casey, such a regulation is clearly unconstitutional.”³⁴

Another almost equally significant lower court application of Casey came in the less-publicized context of ongoing state efforts to impose Pennsylvania-like restrictions on women seeking abortions. In September 1995 Louisiana joined Mississippi and Pennsylvania and became the third state in the nation to require that women make two separate clinic visits in order to receive state-mandated abortion information in person from a physician at least twenty-four hours before the procedure rather than merely by telephone. In Indiana, however, a new law imposing such a requirement was blocked by U.S. District Judge David F. Hamilton. Relying heavily on findings that Mississippi’s statute had led to a more than 10 percent decline in abortions, Hamilton emphasized how that data represented “evidence that was not available in Casey concerning the actual effects of such laws.” Fully appreciating Casey’s distinction between state laws that persuaded women to have fewer abortions and unconstitutional statutes that obstructed women’s efforts to obtain abortions, Hamilton found that “the ‘in the presence’ requirement of the Indiana law is likely to have effects in Indiana comparable to the effects of the similar law in Mississippi.” Hamilton reiterated that the focus of Casey’s “undue burden test is not on added expense or inconvenience. The focus is on practical burdens so great that they would actually prevent a significant number of women from obtaining abortions they would otherwise choose to have.” In Indiana, “for a large fraction of women seeking abortions, the law is likely to operate as a substantial obstacle to a woman’s choice” and thus was unconstitutional pursuant to Casey. Hamilton’s opinion was the most astute lower court discussion that Casey’s “undue burden test” had yet received, but in September 1996 a fourth state, Utah, also successfully imposed a two-visit requirement.35

In late April 1996 the Supreme Court refused to hear South Dakota’s appeal of a lower federal court decision voiding a parental-notice statute that failed to include a judicial bypass provision, but the refusal prompted a rare and combative colloquy between three dissenters—Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas—and Justice John Paul Stevens. The appeals court panel had concluded that Casey had implicitly superseded a prior decision, which in no way concerned abortion, with regard to what standard ought to govern facial—as distinct from “as applied”—challenges to statutes. Scalia insisted that the appellate court’s reading of Casey “cries out for our review,” particularly since its interpretation contradicted that of another appeals court which in 1992 had upheld Mississippi’s twenty-four-hour waiting period without Supreme Court rebuff. Justice Stevens, in an unusual rebuttal, dismissed Scalia’s complaint and volunteered that it “is not at all clear to me” that even that southern appellate court, the Fifth Circuit, would any longer adhere to its 1992 stance.³⁶

Two months later the High Court ordered another appeals court to correct the manner in which it had voided a Utah statute that sought to prohibit virtually all post-twenty-week abortions, a voiding that the Supreme Court the following year declined to review,³⁷ but the most important decision of the Court’s 1995–1996 term concerned not abortion but gay rights. In 1992 Colorado voters had approved a state constitutional amendment prohibiting any governmental unit from adopting any policy offering protection against discrimination to gay citizens, as the cities of Aspen, Boulder, and Denver already had. The Colorado Supreme Court had affirmed a trial court’s finding that the amendment was unconstitutional, but the state appealed, presenting the U.S. Supreme Court with its most momentous gay rights case since Bowers v. Hardwick ten years earlier.

On May 20, 1996, the High Court affirmed the unconstitutionality of the antigay amendment in a six-to-three ruling. Remarkably, Justice Anthony M. Kennedy’s majority opinion never once referred to the decade-old precedent of Bowers, but the dramatic force of the majority’s language—especially as underscored by a splenetic dissent from Justice Scalia—left Bowers looking mortally wounded if not explicitly abandoned.

Kennedy stated that the Colorado “amendment seems inexplicable by anything but animus toward the class that it affects,” and he added that “disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” Observing that “it is not within our constitutional tradition to enact laws of this sort,” Kennedy and his five colleagues concluded that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”38

The importance of the Romer majority’s opinion was magnified by the angrily sarcastic dissent filed by Justice Scalia and joined by Chief Justice Rehnquist and Justice Thomas. The Romer majority, Scalia accurately complained, “places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”

As one influential commentator, Thomas C. Grey, noted, “Scalia’s dissent made even louder the silence at the heart of the Romer majority opinion—its failure so much as to mention Hardwick.” Grey believed that “not much is left of Hardwick,” and another knowledgeable expert, Louis Michael Seidman, fully agreed, saying it was “difficult to see how Bower’s validation of same-sex sodomy laws survives the Court’s analysis. The sound of the Court’s silence regarding Bowers is deafening.”³⁹

Seidman accurately termed Romer the “first major Supreme Court victory” for gay people in American history, but he also added, “Romer’s future is indeterminate.”40 Prior to Romer, the highest state courts in Texas,⁴¹ Louisiana,⁴² and Mississippi⁴³ in 1994 and in Rhode Island⁴⁴ and Oklahoma⁴⁵ in 1995 had all declined to void their still-existing criminal sodomy statutes. Some of the holdings deserved more attention than they received, such as the Rhode Island Supreme Court’s declaration that “the state may constitutionally prosecute an unmarried consenting heterosexual adult who engages in an act of cunnilingus.”⁴⁶

Early in 1996, however, Tennessee’s court of appeals, in a ruling left undisturbed by the state supreme court soon after Romer, held that the state’s Homosexual Practices Act violated the Tennessee Constitution. “Our citizens’ fundamental right to privacy,” the court announced, “encompasses the right of the plaintiffs to engage in consensual, private, non-commercial sexual conduct.”⁴⁷ Georgia’s supreme court again upheld that state’s criminal statute; a five-to-two majority declared that “the proscription against sodomy is a legitimate and valid exercise of state police power in furtherance of the moral welfare of the public.” One dissenter criticized that outcome as “pathetic and disgraceful” and cited Tennessee’s dissimilar result;⁴⁸ a year later the Tennessee opinion was also quoted by the Montana Supreme Court in a unanimous decision voiding that state’s same-sex sodomy statute on state constitutional grounds. “The right of consenting adults, regardless of gender, to engage in non-commercial, private, sexual relations free of governmental interference, intrusion and condemnation,” wrote Justice James Nelson, lies at “the very core of Montana’s constitutional right of individual privacy.” “There are certain rights so fundamental that they will not be denied to a minority no matter how despised by society.”⁴⁹

The Montana ruling reduced to twenty-one the number of states that still criminalized consensual oral and anal sex, but far more attention was being directed toward another gay rights litigation drive, namely a test case effort to win legalization of same-sex marriages in Hawaii pursuant to the state supreme court’s unique reading of the Hawaii constitution. In 1993 the state’s high court, in an intermediate ruling, had held that “sex is a ‘suspect classification’ for purposes of equal protection analysis” and that accordingly the state would have to demonstrate a compelling reason for denying marriage licenses to same-sex couples.

The test case, initially filed in 1991 on behalf of both male and female couples, was then remanded to a lower court for a full-fledged trial under the highly demanding standard of review the state supreme court had mandated. Only three years later did the trial finally commence, and in early December 1996 Circuit Court Judge Kevin S. C. Chang unsurprisingly ruled that the state had failed to meet its burden of proof. Nationally, the Hawaii litigation had inspired congressional passage of the Defense of Marriage Act, ostensibly authorizing other states and the federal government to ignore any same-sex unions that might take place in Hawaii. President Bill Clinton signed the bill into law in September 1996, but the almost universal expectation that Chang’s decision eventually would be affirmed by the Hawaii Supreme Court stimulated a strong backlash in Hawaii too. Early in 1997 the Hawaii state legislature proposed amending the state’s constitution to explicitly prohibit same-sex marriage while at the same time approving legislation allowing same-sex couples to be recognized as “reciprocal beneficiaries” under state law. Formal adoption of the state constitutional amendment had to await ratification by the state’s voters in the November 1998 election, but overwhelming public support for the restriction meant that approval was assured. What if anything the Hawaii Supreme Court might do with Chang’s ruling was reduced to a modest curiosity, and the once-bright expectation of a national gay rights breakthrough in Hawaii all but disappeared.50

Early in 1996 word spread that the U.S. Department of Justice was ending the investigation it had initiated a year earlier into whether Paul Hill, Shelley Shannon, and other advocates of deadly force were linked to any wider conspiracy to kill doctors and destroy clinics. The Justice Department’s failure to establish an actual conspiracy, however, did not represent an end to ongoing law enforcement success in halting and punishing violently obstructive abortion opponents. One young woman who unsuccessfully attempted to burn a Virginia clinic was sentenced to two and a half years in federal prison,⁵¹ and in Oregon one of the two leading lights of Advocates for Life, Paul deParrie, was enjoined from having any contact with one Portland clinic director pursuant to a state antistalking statute. Half a dozen Oregon providers filed a federal class action RICO and FACE suit against the pro-violence American Coalition of Life Activists,⁵² and a plethora of federal and state courts continued to affirm both injunctive orders restricting obstructive protests and criminal convictions of offenders.⁵³

On the medical front, the Population Council announced in late March 1996 that its large clinical trial of mifepristone, funded largely by wealthy investor Warren Buffett, was now complete and that the final data required for federal approval by the FDA had been submitted. The Council also said that arrangements for full-scale manufacture and distribution of RU-486 were in place, and the president of the private company the Council had set up to oversee those functions declared, “We hope that mifepristone will be available to women in this country by the end of the year.” Lawrence Lader’s small Abortion Rights Mobilization also had its own trials of mifepristone under way, and the National Abortion Federation disclosed that it was encouraging its members to use methotrexate for medical abortions. In mid-July an FDA advisory committee recommended mifepristone’s approval, and in mid-September the FDA announced that it was giving RU-486 conditional approval. Clinical research continued to show widespread patient satisfaction with both mifepristone- and methotrexate-induced medical abortions, and one survey of rural physicians found that while only 4 percent offered surgical abortions to their patients, 26 percent said they would definitely use RU-486 when it was obtainable. Population Council executives stated that they hoped for full-scale national availability of RU-486 by mid-1997.54

In mid-September 1996 the Republican congressional leadership scheduled House and Senate override votes for the Partial-Birth Abortion Ban Act that President Clinton had vetoed five months earlier. Abortion opponents received a major boost when first the Bergen (N.J.) Record and then the Washington Post published major stories asserting that the actual number of late second trimester “partial birth” abortions was far greater than the very modest number of postviability third trimester procedures that had drawn the most attention during earlier congressional debates, and on September 19, by a more than two-thirds vote of 285 to 137, the House of Representatives successfully overrode the Clinton veto. Seventy Democrats joined the majority; only fifteen Republicans were in the minority.⁵⁵

One week later the override attempt in the Senate fell eight votes short of the sixty-seven that were needed, but a number of normally pro-choice senators—Republican Arlen Specter and Democrats Sam Nunn and Patrick Leahy—switched sides to support enactment of the ban. Democratic minority leader Tom Daschle said he would attempt to work out a compromise on health-exception language that both the president and right-to-lifers could support, but NAF executive director Vicki Saporta expressed a different view: “I don’t think it will ever be over. They [abortion opponents] think they’re on to something.”56

A Mississippi effort to enforce what would have been the nation’s most draconian antiabortion regulations was derailed in federal court,⁵⁷ but a few weeks later news broke that a major obstacle would indefinitely delay widespread availability of RU-486. A lawsuit filed in Los Angeles Superior Court revealed that the Population Council’s carefully chosen overseer of the manufacturing and distribution work, Joseph D. Pike, was a disbarred attorney who had been convicted of forgery in North Carolina earlier in the year and sentenced to eighteen months probation. The Population Council had learned of Pike’s record a few months prior and quietly had sought to ease him out of the project, but the Los Angeles suit, filed by former “Gong Show” producer Burt Sugarman, a potential investor in the manufacturing and distribution work who had had a falling out of his own with Pike, propelled everyone’s dirty laundry into the newspapers. The Population Council had worked assiduously to keep all its manufacturing and distribution plans as secret as possible so as to shield the project from antiabortion harassment, but now it too filed suit against Pike in New York.

Pike previously had overseen the manufacturing of a Council-sponsored intrauterine device (IUD), but Council president Margaret Catley-Carlson publicly confessed, “We are responsible for not having done due diligence on someone we had had as a partner for ten years.” Pike had been given the job of raising the estimated $27 million needed to launch the difficult, large-volume manufacturing work, and by July 1996 he had obtained more than $13 million from interested investors. Some $8 million of that money had gone to the Population Council itself as reimbursement for the approximately $12 million it so far had expended on RU-486, but Pike’s investors, such as New York financier Brian M. Freeman, now had their names in the newspapers while also facing a significant delay before there would be any return on their dollars. Finally, in mid-February 1997, the Council announced that a settlement had been reached with Pike and that a new entity, Advances for Choice, would oversee the manufacturing and marketing. RU-486, the Council said, ought to be nationally available by the end of 1997.⁵⁸

Early in 1997 antiabortion bombers struck a clinic in Atlanta, Georgia, and then one in Tulsa, Oklahoma,⁵⁹ but one month later, in yet another firm ruling against right-to-life protesters, the U.S. Supreme Court affirmed in large part an injunction barring demonstrators from coming within fifteen feet of a clinic in Buffalo, New York. The long-running case, Schenck v. Pro-Choice Network of Western New York, had been in litigation for more than six years and had received en banc consideration from the entire U.S. Second Circuit Court of Appeals soon after the High Court’s 1994 ruling in Madsen. The six-to-three 1997 ruling, with Justices Scalia, Kennedy, and Thomas again in dissent, reiterated the majority’s clear adherence to the principles of Madsen while also holding that lower courts could not additionally prohibit protesters from accosting people who were approaching a clinic.60

Numerous state and federal courts continued to affirm restrictive injunctions and criminal charges brought under FACE,⁶¹ but in two other, low-visibility abortion cases, one concerning a Montana parental-notice statute and one concerning Montana’s insistence that only doctors, not physician assistants, could perform first-trimester abortions, the Supreme Court twice reversed federal appellate court rulings. The parental-notice ruling, Lambert v. Wicklund, came without dissent,⁶² but in the physician assistant case, Mazurek v. Armstrong, Justices Stevens, Ginsburg, and Breyer gently reprimanded their colleagues for being insufficiently inquisitive about whether Montana had enacted the limitation solely to target one “PA” who did perform abortions under a doctor’s supervision, Susan Cahill. Five months later a state court judge blocked the ban pursuant to Montana’s state constitution.⁶³

In late February 1997, just as the new Congress was gearing up for another attempt to pass the Partial-Birth Abortion Ban Act into law over President Clinton’s opposition, controversy developed over a claim by one previously little known abortion rights lobbyist, Ron Fitzsimmons, that he had “lied through my teeth” to ABC News more than a year earlier in denying that there were significant numbers of “intact” second trimester abortions. The ABC interview with Fitzsimmons, the executive director of the National Coalition of Abortion Providers, a small competitor of NAF’s, actually had never even aired, but Fitzsimmons’s strange though self-advertising confession drew considerable attention and generated extensive news media criticism of pro-choice interest groups. One New York Times reporter characterized abortion rights supporters as “a movement enveloped by an extremism that prohibits concessions, compromise, maybe even candor,” and Fitzsimmons’s further claim that abortion “is a form of killing; you’re ending a life” gave opponents additional ammunition.⁶⁴

Fitzsimmons soon circulated a somewhat bizarre memo to his members, asserting that “the net effect of this ‘confession’ has been an appreciable increase in credibility and visibility” as NCAP had “emerged as an honest, credible source of information,” but hardly anyone else shared his perspective. On March 11 the House and Senate Judiciary Committees held a joint, one-day hearing on the partial birth bill, and National Right to Life Committee legislative director Douglas Johnson testified honestly—though with little news media coverage—that “more than 90 percent of the abortions that would be banned by the Partial-Birth Abortion Ban Act are not third trimester abortions.” Johnson also readily acknowledged that “it is true that a subset of the third-trimester partial-birth abortions involve babies who have grave disorders that will result in death of the baby soon after birth.” The Right to Life Committee nonetheless supported enactment of a federal criminal statute so as to guarantee that those fetuses’ mothers would have no choice but to carry them to term and then experience their deaths.65

The National Right to Life Committee was also energetically instigating state legislative consideration of “partial birth” ban laws in more than half the states, but sometimes the proponents were too frank for their own good. Michigan in 1996 had joined Ohio and Utah as the first three states to enact such measures, but antiabortion activist Mark Crutcher conceded to one Michigan newspaper that “there is physically no way to enforce that law” unless doctors somehow were closely surveilled. Republican state senator Jack Horton confessed, “I’m not sure if prosecution was on our mind when we passed this,” and added, “Sometimes laws are made to make a statement.” Crutcher, however, had a further explanation: “The whole issue is a scam being perpetrated by people on our side of the issue for fund-raising purposes.”⁶⁶

On March 20 the House of Representatives passed the federal partial birth bill by a vote of 295 to 136—ten more ayes than it had received six months earlier—after rejecting by an almost equally large margin, 282 to 149, an amendment that would have added a further exception for pregnancies involving “serious adverse long-term physical health consequences” for the woman. Senate minority leader Tom Daschle continued to try to fashion a more tightly worded maternal health amendment that would break the political logjam, and finally settled on an exception for cases that would “risk grievous injury to her physical health,” where “grievous injury” was expressly limited to “a severely debilitating disease or impairment specifically caused by the pregnancy.” Daschle said he wanted to avoid a congressional ban on one specific procedure that could aid some women, since “politicians cannot anticipate or understand the unique circumstances she and her physician might face,” but his eagerness to enact instead a more comprehensive restriction on all third trimester procedures (“No post-viability abortions should be allowed—regardless of procedure—unless they are absolutely necessary to protect a mother from death or serious damage to her health”) placed him in a position of totally breaching the comprehensive protection of postviability maternal health the Court had established in U.S. v. Vuitch and Doe v. Bolton.67

That infirmity failed to stop either President Clinton or the otherwise pro-choice American College of Obstetricians and Gynecologists (ACOG) from endorsing Daschle’s proposal, but their support did him little good on the Senate floor, where his substitute was defeated by a 64 to 36 margin after a fully pro-choice amendment offered by California Democrat Diane Feinstein lost on a vote of 72 to 28. Some voices, like the editorial page of the Washington Post, termed Daschle’s effort “a surprisingly good compromise” whose postviability effect “would be broader than” the partial birth ban, but conservative commentator Robert D. Novak correctly called Daschle’s offering “a serious retreat by pro-choice forces.” Novak highlighted how right-to-lifers’ actual goal was to “seek real legislation banning all second- and third-trimester abortions, without loopholes,” and one knowledgeable reporter proclaimed that the partial birth initiative represented a “stunning coup for abortion foes” that had brought about “a fundamental shift in the national debate over abortion.”⁶⁸

On May 19, 1997, one day before the House-passed partial birth bill was scheduled for debate on the Senate floor, the American Medical Association (AMA) astounded most observers, and some of its own members, by endorsing passage of the measure in exchange for some exceedingly modest changes in the ban agreed to by Senate sponsor Rick Santorum, Republican of Pennsylvania. Observers believed Santorum was now within striking distance of the 67 votes needed to override another presidential veto, but on May 20 Senate passage took place by a margin of only 64 to 36. Among those 64 were three Democrats who previously had opposed the bill, including minority leader Daschle, who tried to explain his flip-flop by saying, “I voted in favor of its passage because I still desire to find common ground with those outside the extremes.” More memorably, Daschle also volunteered that it was “highly likely” that the bill for which he had just voted “will be declared unconstitutional should it be enacted into law.”69

Antiabortion strategists publicly congratulated themselves on their growing political success. Christian Coalition executive director Ralph Reed told Katharine Q. Seelye of the New York Times that the key to their headway lay in an exclusive focus on the fetus: “never get taken off it to talk about the health of the mother or any other rabbit trail.” Conservative columnist Fred Barnes noted how on the Senate floor the ostensibly pro-choice Tom Daschle had “sounded like a pro-lifer,” and Seelye highlighted the contradictory irony of President Clinton’s endorsement of Daschle’s measure, which “carried far broader restrictions on abortion than the bill he plans to reveto.” While the right-to-lifers’ initiative was “more of a political strategy than a real issue,” the debate nonetheless had cost abortion supporters “enormous political capital.” Seelye noted, “Rarely has so much energy been expended by so many over something that, in practical terms, would have so little effect,” but she emphasized how a comment from conservative activist Gary Bauer illuminated the entire strategy underlying the “partial birth ban” campaign: “When this is over, I want to move on to an up-or-down vote on second-and third-trimester abortions.”⁷⁰

In mid-May yet another arsonist struck Portland, Oregon’s Love-joy clinic. Several months later federal authorities indicted a fifty-nine-year-old Washington State man, Richard T. Andrews, for three California clinic arsons; Andrews subsequently pled guilty to seven Northwest clinic attacks stretching from California to Montana between 1992 and 1995 and received a seven-year sentence.⁷¹ Even more serious was news that the Population Council’s intended manufacturer of mifepristone for the American market, the Hungarian drug company Gedeon Richter, had privately told the Council in late February, eighteen months after signing a production contract, that it was dropping out of the project. The prospective American distributor, Danco Laboratories, had quietly filed a breach-of-contract suit against Gedeon Richter in New York in early May, but the Council admitted that the need to find a new manufacturer probably would result in a multiyear delay in RU-486’s availability across the United States.

Lawrence Lader’s ARM announced that a grant from the John Merck Fund would allow it to expand its provision of free mifepristone beyond the few thousand patients who so far had had medical abortions in ARM-sponsored clinical trials, and discussions began as to whether ARM’s small-scale manufacturing process, overseen by young Columbia University chemistry professor David Horne, could to any large degree fill the gap created by Gedeon Richter’s withdrawal. ARM’s clinical trials, overseen by Rochester medical researcher and physician Eric A. Schaff, had continued to demonstrate mifepristone’s popularity and efficacy. Well over 90 percent of women patients with pregnancies of no more than eight weeks now were able to successfully self-administer the second step of the RU-486 procedure, vaginal misoprostol, at home. In sharp contrast to methotrexate, with whose use one-third of women had to wait two to three weeks to expel their pregnancies, mifepristone/misoprostol miscarriages occurred far more quickly. Schaff noted that “some providers may find the 24-hour telephone availability and need for surgical backup for excessive bleeding problematic,” and knowledgeable researchers all agreed that “medical abortion will not be a panacea.” Given the Population Council’s admission that they no longer had any timetable for RU-486’s widespread availability, the encouraging clinical findings had only abstract significance for most American women.72

Several months later the House of Representatives approved the Senate-amended version of the Partial-Birth Abortion Ban Act by a vote of 296 to 132 and President Clinton once again immediately vetoed the bill. Republican leaders announced they would postpone votes on overriding the veto until sometime in 1998 in the hope that upcoming fall elections might help them gain the three additional votes they would need in the Senate.⁷³ In the courts, a federal judge in Wisconsin reluctantly declined to strike down a new state statute that, when actually implemented in May 1998, made Wisconsin the fifth state to require in-person provision of state-mandated abortion information at least twenty-four hours before the procedure; Ohio in mid-1998 was poised to become sixth.⁷⁴ Many pro-choice lawyers, however, breathed a small sigh of relief when the U.S. Supreme Court, in declining to apply Casey’s “liberty” analysis to the issue of physician aid-in-dying for terminally ill patients in two heavily publicized cases, left Casey’s abortion-related vitality unaffected.⁷⁵

Potentially of more moment for future abortion politics and litigation, however, was the undeviating track record that began to accumulate throughout the last half of 1997 and the early months of 1998 as more than a dozen newly passed state-level “partial birth ban” statutes were challenged in court: with only one exception, each lawsuit proved successful. The National Right to Life Committee’s effort to win enactment of such laws by as many state legislatures as possible was registering impressive success: although several bills were vetoed by governors, in six states—Indiana, Mississippi, South Carolina, South Dakota, Tennessee, and Utah—1997 “partial birth” statutes took effect without judicial review.

But in the first thirteen states where such enactments were challenged in court, however, restraining orders or injunctions soon were issued barring enforcement. The first such measure, in Ohio, had been blocked in December 1995, and in November 1997 the Sixth Circuit Court of Appeals affirmed that ruling in a decision the U.S. Supreme Court declined to review. In Georgia a federal district court judge ruled that the statute could not impinge upon previability abortions; a similar outcome occurred in Alabama after the state attorney general told county prosecutors that the new law applied only to viable fetuses. Rhode Island’s law was blocked in mid-July by a U.S. district judge, and Louisiana’s—along with a new enactment encouraging suits against doctors—was restrained three days later. Arizona’s measure was stopped the following day by a judge who said it clearly was unconstitutional, and Arkansas’s was stymied on July 31. Alaska’s was curbed by a state judge in early August, and Montana’s by a state judge in early October.76

But two of the most important rulings came in full dress opinions issued by federal judges in Detroit and Omaha. U.S. District Judge Gerald E. Rosen permanently enjoined enforcement of Michigan’s “partial birth” abortion ban act, writing that “the statute leaves physicians at risk of violating its terms virtually every time they perform an abortion after the first trimester.” Noting that the Michigan measure was less precise than both the Ohio law that had already been struck down and the federal bill that had been vetoed by President Clinton, Judge Rosen said the Michigan ban was invalid both because it was “hopelessly ambiguous” and because in many instances “it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”⁷⁷

Two weeks later U.S. District Judge Richard G. Kopf, acting in a challenge to Nebraska’s new law brought by abortion doctor LeRoy Carhart, rendered the strongest and most persuasive judgment to date. Finding that the Nebraska prohibition would have “the effect of subjecting Carhart’s patients to an appreciably greater risk of injury or death than would be the case if these women could rely on him to perform his variant of the banned procedure on nonviable fetuses when medically advisable,” Judge Kopf ruled that the Nebraska ban was an “undue burden” under Casey and thus unconstitutional. “Credible medical evidence establishes that the D & X procedure,” Kopf noted, sometimes “is appreciably safer than the D & E procedure” involving fetal dismemberment within the womb. Hence the new law “subordinates maternal life and health to the life and health of a nonviable fetus,” and “nonviable fetal life cannot constitutionally be considered superior to maternal life or health.”78

In December 1997 New Jersey’s newly enacted partial birth ban measure became the eleventh such statute to be blocked by a court, and two months later federal district judge Charles P. Kocoras granted a permanent injunction against Illinois’s similar new statute. Like previous jurists, Kocoras highlighted the unconstitutionally vague terminology the law featured, but he like Kopf also explicitly underscored the affirmative medical value of the targeted procedure:

Intact D&E is particularly useful in cases of fetal abnormalities because geneticists often request that the fetus be removed intact to facilitate genetic testing. In addition, the intact D&E reduces the risk of retained tissue and reduces the risk of uterine perforation and cervical laceration because the procedure requires less instrumentation in the uterus. An intact D&E may also result in less blood loss and less trauma for some patients and may take less operating time.

In March 1998 an Idaho federal judge restrained an analogous law there, but in mid-May an exceptionally conservative U.S. district judge in Wisconsin, John C. Shabaz, became the first federal jurist to allow such a state statute actually to take effect before ruling on its constitutionality. Frightened doctors briefly halted all abortion services before resuming their practices once local district attorneys agreed that the ban would not be applied expansively.⁷⁹

Judges Kopf’s and Kocoras’s rulings, however, accurately reflected the two overarching realities of abortion law and politics in 1998: (1) that legislatures rather than demonstrators were the greatest hindrance to the provision of abortion services and (2) that with legislatures as with protesters the courts—state as well as federal—were the foremost guarantors of women’s access to abortion.

In the wake of Casey and especially in the wake of the 1994 enactment of the federal FACE statute, clinic operators all across the country came to realize that in all honesty antiabortion protesters and even terrorists were less of an impediment to the provision of services than were the profusion of regulatory obstacles thrown up by right-to-life dominated legislatures in a growing number of states. No law enforcement authority could prevent the deadly onslaught of someone like Paul Hill or John Salvi, but state and federal prosecutors had brought a virtual halt to the violently obstructive harassment that clinic patients and providers had had to endure in the late 1980s and early 1990s. The complete marginalization of violent protest was sadly underscored by the January 29, 1998, bombing of a Birmingham, Alabama, abortion clinic that killed a thirty-four-year-old city police officer, Robert D. Sanderson, and badly wounded a clinic nurse, Emily Lyons. The accused bomber, Eric Robert Rudolph, eluded capture for months.80

While by 1998 abortion opponents had decisively lost the physical battle to obstruct access to clinics or otherwise close them down, right-to-life legislators, in large part through their focus on the supposed “partial birth” procedure, had succeeded in shifting the focus of abortion debates onto the fetus, and away from women, to a greater extent than at any other time since Roe. Foes of “intact” abortions often failed to acknowledge that they opposed all abortions, not simply one particular procedure, just as state-level proponents of mandatory waiting periods and other restrictive legislation often did a poor job of concealing their desire to deny women a right to choose rather than simply aid them in making better-informed choices. For many right-to-lifers, opposition to all forms of nonprocreative sexuality remained more basic and elemental than protection of either late-term or early-term fetuses; few antiabortion activists supported contraceptive services and hardly any endorsed gay rights. Focus on the fetus might be successful public relations, but it fundamentally obscured the larger, more far-reaching agenda that lay just behind the stalking horse of “partial birth” abortion ban bills.⁸¹

Casey’s explicit tolerance of “persuasive” as distinct from “obstructive” state efforts to delay women’s exercise of their right to choose abortion without undue hindrance made judges decidedly more lenient with regard to intrusive statutes than courts had become with intrusive protesters.⁸² But Casey’s prohibitory boundaries were clear if not sharp, and any right-to-life strategist who truly believed that legislation banning the use of one or another abortion technique for previability procedures could survive review in the federal courts was, as Judge Kopf’s opinion showed, guilty of grave self-deception.

After 1992 no serious scholar of the Supreme Court could any longer doubt that the constitutional core of Roe, as upheld and reaffirmed in Casey, was secure for all time. Indeed, not only did such post-Casey abortion protest rulings as Madsen and Schenck reflect a firm majority consensus that the First Amendment rights of demonstrators would not be allowed to infringe on the health care rights of patients and providers, but federal appellate courts’ unanimous ratification of the constitutionality of FACE further enshrined the federal judiciary as the most important pro-choice actor in American government.

Federal and state trial judges’ equally unanimous rulings against the slew of state-level “partial birth” ban laws thus underscored the extent to which the judiciary had become the bulwark of the pro-choice struggle. Federal courts could upend even local zoning practices that obstructed clinic services, and a growing number of state courts, such as Alaska’s, held that their state constitutions protected access to abortion even more assertively than did Casey83

The virtual disappearance of organized medicine from the front ranks of the abortion rights movement was in part the result of the extensive segregation of abortion services into the lonely world of freestanding clinics, but medicine’s ambivalence about abortion also reflected a professional distaste for the repetitious routine of suction curettage that might be significantly altered once RU-486 becomes fully available. The advent of new manual syringe techniques for very early “surgical” abortions—even eight to ten days after conception—promises to hasten the shift toward early abortions even without universal availability of RU-486.⁸⁴

The Supreme Court’s firm commitment to Casey accurately reflected the remarkably imposing stability of American public opinion about abortion. Twenty-five years’ evidence indicated that while significant numerical variations could be generated by differently worded questions, a clear majority of Americans opposed any governmental action to overturn the constitutional consensus represented by Casey. The best analyses of abortion opinion reflected both Americans’ less than impressive levels of political knowledge—“only 30% of Americans can recall unprompted in surveys that Roe v. Wade is a case dealing with abortion rights”—and the firm distinction that some 10 to 20 percent of respondents drew between the legality of abortion, which they supported, and the morality of abortion, which they opposed. It of course remained true that “a sizeable component of abortion attitudes relates to sexuality itself,” but 1997–1998 polling reflected how the legislative debates over “partial birth” ban bills had had less of an impact on Americans’ underlying beliefs than many journalists appreciated. Most important, the news media’s marked preoccupation with the fetus had reinforced Americans’ already well pronounced preference for early rather than late term abortion. One early 1998 New York Times polling report simplistically contended that “public opinion has shifted away from general acceptance of legal abortion,” but a comprehensive study by the generally conservative American Enterprise Institute concluded that “opinion on abortion remains very much what it was in 1973.”85

“Partial birth” publicity might generate measurable short-term legislative gains, but the “partial birth” debates offered little long-term encouragement for those who dreamed of a return to the days when most abortions were illegal. Radical activist Matt Trewhella denounced the “partial birth” ban efforts as a “worthless charade” in Life Advocate magazine, accurately complaining that “not a single preborn baby will be protected from death by this legislation.” In addition, he argued, “the general public now thinks that partial-birth is the only horrible abortion procedure.” American Life League president Judie Brown made the same point in USA Today, saying that abortion opponents had “shot ourselves in the foot” by focusing on “partial birth” abortions. “The implicit message is that all other kinds of abortion aren’t as bad,” and “that undermines what this movement is trying to do, which is ban all abortions, period.” Trewhella’s and Brown’s consternation appeared to be valid; during Virginia’s fall 1997 gubernatorial campaign, successful Republican candidate James S. Gilmore III explicitly soft-peddled his long record of intense opposition to legal abortion by featuring broadcast ads in which he stressed that “the Supreme Court has spoken. No one’s going to ban abortions.”⁸⁶

During some of the “partial birth” debates, just like after Casey, pro-choice activists sometimes used self-defeating rhetoric and unnecessarily surrendered too much ground. Pro-choice groups and litigators erroneously held an overly pessimistic view of Casey, and at other times too also manifested an odd desire to treat victories as defeats. In an extreme example, one attorney blasted Judge Rosen’s 1997 ruling voiding Michigan’s “partial birth” ban as “a disaster”⁸⁷ since the jurist went out of his way to detail how unacceptable the measure was, thus potentially giving guidance to legislators who might make another try.

Litigators who believed the sky was falling even when each “partial birth” ban under challenge was blocked were less of a problem, however, than were pro-choice voices who volunteered that abortions were somehow a form of “evil.” The contrast to the 1967–1973 era, when virtually all abortion rights activists appreciated how often a safe and legal abortion could represent a significant and life-preserving achievement for a woman suddenly faced with an unwanted pregnancy, could not have been greater. Longtime organizer Frances Kissling, who did appreciate the remarkable merits of Casey, pointedly complained in Ms. magazine, “Sometimes the Supreme Court justices sound more feminist than we do.”88 Among 1998 abortion rights activists, everyone was pro-choice but surprisingly few were explicitly pro-abortion. The wonderfully important title of onetime Wisconsin activist Anne Gaylor’s 1975 book, Abortion Is a Blessing, seemed like a voice from another age.

And perhaps it was. On the twenty-fifth anniversaries of Roe v. Wade and Doe v. Bolton, American women’s right to choose no longer was under physical siege by obstructive demonstrators, and American courts had drawn clear lines marking the outer boundaries of both antiabortion protests and restrictive state statutes. A firm Supreme Court majority, and scores of lower court judges, stood behind the guarantees of Casey and the protections of FACE; if pro-choice activists had rightful cause for concern, their worries might best focus neither on the judiciary nor even on legislatures. Instead the biggest questions loomed within: could the movement itself offer a more supportive sense of a wider community to those doctors and other staff members who actually provided abortion services in the sometimes isolating environment of freestanding clinics? And could the movement reeducate and remind itself that abortion was not an evil and indeed was often a blessing? The legacy of all those who had come before, from Kit Hepburn and Estelle Griswold to Alan Guttmacher, Roy Lucas, and Judy Smith, ought to be a lesson that of course it should.⁸⁹