An Undue Burden On Progress

It's been a eventful few days in the realm of reproductive rights—if steps backward and sideways can be considered events. First, there was New York Gov. George Pataki's veto of the state's emegency contraception bill last Friday. Then yesterday, President Bush urged the Supreme Court to uphold Ayotte vs. Planned Parenthood, a case involving strict abortion restrictions in New Hampshire that could set a precedent for the rest of the country. And today, the news is that the FDA still hasn't made its decision about over-the-counter emegency contraception—but is leaning toward age restrictions and pharmacist dispensal.

Pataki's veto decision smacks of presidential aspirations—he's pro-choice, after all, and emergency contraception has long been proven safe. There's no logical reason he would oppose it—except if he was looking ahead to, say, 2008 and hoping not to alienate religious voters. As The New York Times pointed out in an editorial [1], an admirable bipartisan attempt to expand emergency contraception access is now dead. Way to go, governor.

President Bush's support for Ayotte in the White House's friend-of-the-court brief [2] isn't suprising, though it does mark the first time the administration has officially weighed in on the abortion issue. But what is particularly significant is that Judge John Roberts—currently facing confirmation hearings in the Senate—would likely be the deciding vote in the case. Hmmm. President Bush's nominee...President Bush's friend-of-the-court brief. The president can't directly determine a Supreme Court decision, but it appears that he's trying pretty darn hard to influence it.

The Ayotte case deals with an age restriction and waiting period for minors seeking abortions and has no exception clause to protect a girl's health. Sandra Day O'Connor wrote in 1992 that states must not impose an "undue burden" on the right to access abortion.  The case will help define what, exactly, that undue burden is, and the Bush administration clearly thinks that a 48-hour waiting period and parental permission are not undue—even if a young woman's health is in danger.

As for the FDA, its stalling tactics on emergency contraception are becoming the stuff of legends. The issue has been bouncing around the FDA's heirarchy for two years despite overwhelming scientific evidence and recommendations from the FDA's own medical experts that non-prescription emergency contraception could be vastly helpful in preventing unwanted pregnancies and would present little risk. As it stands now, the FDA will present its final decision before Sept. 1, 2005 [3], and will likely go with an age restriction if it decides to make emegency contraception available without a prescription. That means young women would be "carded," at the drugstore, and those under a set age (16, likely) would be sent back to get a doctor's prescription—which completely negates the point of easier, faster emergency contraception access. Talk about progress.