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Lights out on abortion.

At 3:00 in the afternoon on May 20, Dr. Dennis Christensen, dressed in surgical scrubs, is standing outside his operating room and staring at the, fax machine. Following his gaze are some twenty patients, seated in the teal chairs of the waiting room at the Madison Abortion Clinic.

"I've been here since 10:30 this morning and I have twenty-seven patients who are becoming more agitated and anxious as the day goes on," says Christensen. "I'm quite sure the people causing this do not understand what these women are going through."

Christensen has not performed any abortions all day. He is not alone. Almost every abortion provider in Wisconsin has postponed procedures.

The previous night, Christensen conferred with his family and decided that he couldn't risk continuing his practice unless the district attorney assures him in writing that she will not prosecute him for doing first-trimester abortions. That's why he's at the fax machine.

For two days in May, the lights went out on abortion in Wisconsin. The reason: The state had passed a ban on "partial-birth" abortions that was so broadly written and so punitive--mandatory life imprisonment for doctors--that virtually every abortion doctor in the state chose not to risk violating it.

The shutdown in Wisconsin shows just how far-reaching the ban on "partial-birth" abortions can be. Pro-choice advocates have long maintained that such vague state laws are actually a tool to one day ban all abortions. In May in Wisconsin, that day came closer than many thought possible.

The Wisconsin law, closely modeled on the federal bill, defines a "partial-birth" abortion as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes delivery of the child."

Twenty-eight states have passed laws banning "partial-birth" abortions. But the Wisconsin statute is, in many ways, the most extreme. Mandatory life imprisonment is by far the severest punishment under any state law. (Many states mimic the two-year prison sentence stipulated by the federal version, which President Clinton has vetoed twice.) The Wisconsin law specifically states that life begins at conception and does not distinguish between abortions before and after viability. And it provides no exception to women who are victims of rape or incest.

Planned Parenthood went to court to prevent the implementation of the law. But on May 14, U.S. District Judge John Shabaz refused to issue a temporary restraining order. In his decision, he referred to the "harm to the parents of those perhaps several hundred living post-first-trimester children who may be unnecessarily killed." It was the first time, after sixteen challenges nationwide, that a judge allowed such a law to take effect. The ruling, which a panel of the Seventh Circuit Court of Appeals refused to overturn, caused Wisconsin's National Organization for Women to declare, "Wisconsin overturns Roe v. Wade."

"These laws have passed in more than half the states now, but they are being enjoined and overturned," says Planned Parenthood of Wisconsin's spokeswoman Chris Korsmo. "This is the first time a restraining order or an injunction has been sought and denied. It put us on the front line nationwide, and not in a way we want to be there."

For two days after the appeals court decision, just about every abortion clinic in Wisconsin was out of business. This presented a hardship to many women. "These girls are absolutely demoralized," said a woman named Nancy, who accompanied a young female relative to the Madison Abortion Clinic. "Some had to borrow cars and make up stories to come in here, and they may not be able to do it again tomorrow." Others, like her relative, scheduled a fall-back appointment in Illinois for the following day.

"I'm already nervous and a little scared, and not knowing just makes it much worse," said one patient at the clinic who wished to remain anonymous.

In Wisconsin, the anti-abortion lobbyists knew what they were doing. They wanted the most sweeping bill they could get, so they helped defeat amendments that would have specifically banned only the dilation and extraction procedure, where the skull is punctured while in the birthing canal and the fetus is removed intact.

Given what was at stake, pro-choice forces seemed caught off guard. "I think a lot of people would agree with me that the pro-choice community did not respond quickly enough," says Amalia Vagts, who lobbied against the law in the Wisconsin legislature for Planned Parenthood. "But it's hard with the massive confusion over the term `partial-birth abortion.'"

Once the bill made it to the floor, it became clear the legislation would easily pass. And Republican Governor Tommy Thompson had vowed to sign it into law, so pro-choice advocates could see the writing on the wall.

In six states where "partial-birth" abortion laws have taken effect (Indiana, Oklahoma, Mississippi, South Carolina, South Dakota, and Tennessee), pro-choice advocates chose not to challenge them in court. They based that decision on the records of the judges in their areas and on the fact that their resources were already spread thin.

By July 1, Kentucky and West Virginia are also likely to have "partial-birth" abortion laws in effect.

Many usually pro-choice legislators have voted in favor of these laws in Congress and in statehouses around the country. "The focus is now on the baby, which is where Planned Parenthood hasn't wanted it to be all these years," says Susan Armacost, legislative director for Wisconsin Right to Life. "And the result is that, here in Wisconsin, we have pro-life and pro-choice legislators banding together to pass that bill."

The public, which largely supports keeping abortion legal, also seems to favor the "partial-birth" abortion bans. Abortion-rights advocates say many people believe the bans target only late-term abortions or only a specific procedure.

But extending a ban beyond the dilation and extraction procedure is part of the strategy of anti-abortion forces. Douglas Johnson, the legislative director for the National Right to Life Committee, says the protection of abortion granted by Roe v. Wade is based on the location of the fetus. Once any part of a breathing or heart-beating fetus is outside the woman, it has a right to full legal protection, he says. "This is no longer in the sphere of Roe v. Wade," he argues. "This is an alive and living person. If the same baby is expelled spontaneously and is gasping for breath and someone picks the baby up and dashes its head against the wall, would that be a crime? I'm sure that it is."

But abortion-rights advocates don't buy that argument. They say the ban could apply to most abortions. "The elements of this crime are the elements of abortions, namely that the fetus comes out through the vagina and is killed," says Catherine Weiss, head of the Reproductive Freedom Project of the American Civil Liberties Union. "That's what an abortion is."

So far, proponents of legal abortion in Wisconsin have lost in court. But they gained a great deal of national support when doctors like Christensen temporarily stopped performing abortions. Pro-choice activists as far away as Tallahassee, Florida, held a news conference calling attention to what happened in Wisconsin in the hope of adding urgency to their quest to overturn a similar Florida law, which has yet to take effect.

"Shock waves went through this country when abortion clinics didn't open and provide services," says Planned Parenthood's Korsmo. "It was an eye-opener."

Gloria Feldt, president of the Planned Parenthood Federation of America, says the Wisconsin law proves that the antiabortion forces "will do anything to avoid debate over whether abortion should be legal. Instead, they're just trying to figure out how to take access away. But the very draconian nature of the punishment has brought to the public attention just how wrongheaded these laws are."

Armacost of Wisconsin Right to Life calls the clinic shutdown a ruse. "They claimed all abortions would be affected and that they'd be swept up and taken to prison," she says. "But if they were so concerned, they would not be back in business now."

Abortion doctors in Wisconsin did go on strike in part to dramatize their situation. But they also are genuinely worried about this new government incursion into their practice. And they know there is the possibility that performing a certain, common procedure--even early in a pregnancy--can now land them in jail. Most of them are back at work, however, having received written assurances from the district attorney in their area that they will not be prosecuted for first-trimester abortions.

But abortions after the first trimester, and any dilation and extraction procedures, may expose them to jeopardy. Already, the legal battles have been costly. The ACLU's Weiss estimates that fighting the "partial-birth" bills has drained about one-third of her $1 million budget for the past year. "Absorbing this onslaught has been very difficult, and that's the way the anti-choice people want it," she says. "They know very well these bills are unconstitutional, but they keep [the issue] alive because it's good P.R. in the press to focus on a gruesome procedure."

The Wisconsin case returns to Judge Shabaz's court for an injunction hearing in June. If he rules the ban constitutional, Planned Parenthood will appeal to the full Seventh Circuit Court of Appeals. If it loses there, it would likely go to the U.S. Supreme Court, which could uphold the ban, toss it out, or choose not to hear the case at all, which would can a the ban would stick.

Pro-choice advocates still think their side will win in the higher courts. In Roe v. Wade, the Supreme Court held that states may not regulate first-trimester abortions, which the Wisconsin law, with its broad language, appears to do.

But until the courts make their final determination, doctors who practice abortion will be operating in quicksand. "The evil of this law is that you're going to force doctors to start conducting their medical practice with a criminal lawyer in the background," says Roger Evans, the national Planned Parenthood attorney who is fighting the Wisconsin law. "Now doctors will be making decisions in the middle of medical procedures to protect themselves from the reach of this law."

That's already happening at the Madison Abortion Clinic. Christensen got the D.A.'s approval to do abortions up to the fifteenth menstrual week. But as a doctor at a referral clinic, he usually takes patients through the twenty-fourth week. For now, he has made a decision to continue all abortions, but he won't do them the same way he used to.

"I'll have to alter my surgical technique--and at times that will be a less-than-optimal medical procedure," says Christensen. "I'm appalled that this is how clinical decisions are being made, but I think this is just a harbinger of things to come."

Melanie Conklin is a staff writer at Isthmus, the weekly newspaper of Madison, Wisconsin. She wrote "Blocking Women's Health Care" in the January issue.
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Title Annotation:punitive, broad Wisconsin 'partial birth' abortion law provokes strike by all abortion providers
Author:Conklin, Melanie
Publication:The Progressive
Date:Jul 1, 1998
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