Abortion Waiting Periods

by Dave Kopel

January 1993

No issue to come before our newly-elected State Legislators and Congresspeople next year will be more emotionally divisive than abortion. The newly elected Colorado legislature may face the question of whether to impose a waiting period for all women seeking abortion. Congress, meanwhile, will be giving a high priority to a "Freedom of Choice" Act; the Act would prohibit state restrictions on abortion, thereby overturning Colorado's law which prohibits use of public funds for abortion.

While a waiting period for abortion may, on paper seem like a harmless restriction, its practical effect can be much more severe. For a women in Denver who needs to make one extra trip to a nearby medical clinic, a waiting period might be only a minor inconvenience. But for women in rural areas who live far from a medical provider, and for women who may find it very difficult to get time off from work for medical reasons, a waiting period could make abortion extremely difficult.

More fundamentally, the government has no business forcing people to wait to exercise their Constitutional rights. As Martin Luther King, Jr., observed, "a right delayed is a right denied." As long as the law states that abortion is a Constitutional right, women should not have to wait to exercise their right, any more than they should have to wait to exercise their right to buy a newspaper, have sex, or buy a gun.

As the U.S. Supreme Court stated in the freedom of the press case Near v. Minnesota, the authors of the Bill of Rights clearly intended to outlaw prior restraints. While the government could punish a person for abusing Constitutional rights (i.e. inflict a prison term on a person for committing libel), the government could not stop or delay the exercise of rights in the first place. Since a waiting period is a prior restraint on the exercise of Constitutional rights, it might well be struck down by our Colorado Supreme Court.

Ironically, some of Colorado's strongest opponents of a waiting period for abortion, such Rep. Pat Schroeder or State Senator Pat Pascoe, are vigorous champions of a waiting period for gun ownership. But if a waiting period can be imposed on an explicit Constitutional right (the right to bear arms), it's hard to object to a waiting period for a right that is not even mentioned in the Constitution, but is simply created by judicial inference (the right to abortion).

It's unfair and illogical for politicians to pick and choose some rights to protect, and other rights to ignore. As the Supreme Court noted in the Valley Forge case, there is no principled basis for making some Constitutional rights more important than others. All rights -- and all persons who exercise their rights -- deserve the same amount of Constitutional protection.

While the Colorado legislature debates waiting periods for abortion, Colorado's Congressional delegation will be asked to vote on bills to restore public funding for abortion for poor people, and to override state Constitutional provisions, such as those in Colorado, which prohibit public funding.

Opponents of public funding for abortion, such as the Colorado group Citizens for Responsible Government, offer the startling argument that providing the poor with abortion services is actually abusive: "Public funding of abortion exploits the poor. Poor minorities are aborted at 2 to 3 times the rate of the general population."

Does this fact really prove exploitation? Actually, the fact simply suggest that poor people need abortion more. This comports with common sense: poor people are less likely to be able to afford an unplanned child. And since poor people have less access to pre-natal health care services, are more likely to develop complicated pregnancies that result in severe birth defects.

Public funding for abortion simply assures that indigent people have the same opportunity as wealthier people to make an extremely personal and important medical decision.

But while public funding of abortion may be a good idea, the proposed federal law to ram public funding down Colorado's throat is not. Colorado voters have spoken twice on the subject, in state-wide referenda in 1986 and 1988. My side, the pro-funding side, lost both times. It's not fair for Colorado voters' decision to be over-ridden by the national Congress.

 

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