Not an 'Undue' Burden

PHILADELPHIA — Philadelphia. -- The protester is at his regular post, holding a full-color placard of a fetus beside the doorway to the Planned Parenthood clinic on this downtown street.

The women who pass by this self-appointed sentinel and assemble in the small conference room are a quiet and a young group. The oldest of them is a mother in her early 30s sitting at a tense distance from a daughter in her early teens.


At 11:45, Dr. Cathy Dratman opens the counseling session -- now required by state law -- with an apology. "I feel as if I have to apologize to all of you," she says. "As you probably know, Planned Parenthood worked very hard against this law. . . . And we failed."

Half a dozen years ago Pennsylvania passed a strict set of laws regulating abortion. When this law landed in the Supreme Court it seemed entirely possible that the justices would use Planned Parenthood v. Casey to overturn Roe v. Wade. Instead the court in 1992 barely reaffirmed the right to abortion while upholding most of the Pennsylvania restrictions.


According to the new law of the land, abortion can be regulated by states as long as the rules don't create an "undue burden" on the woman. As long as the hurdles the state raises are not too high for the woman to jump. As long as the woman can still find ways around the obstacles the state puts in her path.

Now, after all these years of controversy, the obstacles and hurdles are in place in Pennsylvania. For the past month, women or girls seeking abortions have faced a state-mandated counseling session like the one Dr. Dratman apologetically runs this morning -- including an offer of state-written materials on fetal development.

They've been required to wait at least 24 hours between this "counseling" and the procedure -- a waiting period that means a second visit even in remote rural counties.

In addition, girls 17 or under must now have the consent of a parent -- or the approval of a judge. And parents too must attend the counseling session and wait the 24 hours before giving consent.

It's still too early to calculate the effect of this law. The women and girls here this day are the ones who have been able to jump the hurdles. All we know about the less agile are the anecdotes. The teen-agers who call frantically and, hearing the obstacles, hang up. The women who go out of state for abortions. The long drives, the missed work days, the absent school days, the delays when a first-trimester pregnancy becomes second-trimester. All the assorted burdens of real, daily life that may or may not be "undue" in the eyes of a court.

You don't have to visit this clinic long before you are struck by the irony. Joan Coombs, the director of this Planned Parenthood, talks with deep resentment about the rules. "The state," she says, "is saying that neither a woman nor a parent of a teen-ager is capable of making a decision on her own without government interference."

Yet the very people like Ms. Coombs who fought this law -- "and failed" -- are the ones who must now make it work as smoothly as possible for pregnant women and girls. All the while knowing that the more successful they are in reducing the "burden," the less successful they may be in ever overturning the law.

Pennsylvania is not alone in legislating hurdles. There are 10 other states now with mandatory waiting periods and state counseling. There are more states with parental notification or consent laws.


What we know from these states is that the words "undue burden" have different meanings in different lives. There are women wealthy enough to buy a ticket to an easier location. There are 17-year-olds savvy enough to figure their way through any set of rules and regulations. There always have been.

The issue today isn't the fear of an abortion ban. The issue is access -- access for the young and the poor. That can be a very different matter in the public eye.

Just two years ago, pro-choice activists marched and lobbied and voted by the millions for their right to decide the thorny question of abortion on their own. Many of those Americans would like to lay the issue to rest. Their voices are quieter now in the courts and in the legislatures where laws like this one are made and can be unmade.

In the 1990s, the question before the pro-choice movement is the one that Joan Coombs poses carefully this day: "Will women of means fight and be activists with and on behalf of poor women and teens just as if their own rights were under attack?"

Or will they decide that defending the rights of the most vulnerable women an "undue burden"?

Ellen Goodman is a syndicated columnist.