States Step Up Fight on Abortion

Taking direct aim at Roe vs. Wade, lawmakers from several states are proposing broad restrictions on abortion, with the goal of forcing the U.S. Supreme Court -- once it has a second new justice -- to revisit the landmark ruling issued 33 years ago today.

The bill under consideration in Indiana would ban all abortions, except when continuing the pregnancy would threaten the woman’s life or put her physical health in danger of “substantial permanent impairment.” Similar legislation is pending in Ohio, Georgia and Tennessee.

The bills are in direct conflict with the Supreme Court’s 1973 rulings establishing abortion as a constitutional right. Roe vs. Wade and its companion case, Doe vs. Bolton, asserted that doctors could consider “all factors ... relevant to the well-being of the patient,” including emotional and psychological health.

In the years since, states have adopted a variety of laws designed to restrict access to abortion or force women to think through alternatives. Those efforts are expected to continue this year, with states considering proposals to impose new licensing standards on abortion clinics, or to require women seeking abortions to first view ultrasound images of their fetuses and discuss with a counselor the pain a fetus might feel during the procedure.

About 50 such bills were passed in 2005 -- twice as many as in 2004, according to the abortion rights group NARAL Pro-Choice America.

In California, a fetal pain bill was introduced last year but never made it out of committee. Voters narrowly rejected a November ballot initiative that would have amended the state’s constitution by requiring parental notification before a minor could obtain an abortion.

Increasingly, lawmakers opposed to abortion are seeking bolder measures.

Republican Rep. Troy Woodruff, serving his first term in the Indiana Legislature, wrote House Bill 1096 knowing it would conflict with Roe vs. Wade.

That was precisely his point: He wants his ban appealed to the Supreme Court, in hopes that the justices will overturn Roe and give states the power to make abortion a crime. “On an issue that’s this personal, it should be decided as local as possible,” he said. “We either want these procedures, or we don’t.... And I don’t.”

The debate unfolds as the Senate prepares to vote on Supreme Court nominee Samuel A. Alito Jr., a federal appellate judge. As a Reagan administration lawyer, Alito laid out a plan to overturn Roe vs. Wade. In his confirmation hearings this month, he declined to call the case “settled law,” suggesting that he might be willing to reverse or modify it.

If confirmed, Alito would succeed retiring Justice Sandra Day O’Connor, who supports abortion rights. He would join another conservative justice appointed by President Bush: John G. Roberts Jr., who was confirmed as chief justice in September.

Even if Alito and Roberts prove to be staunch antiabortion votes, a bare majority of justices would still support the core principle of a woman’s right to end an unwanted pregnancy. But a retirement or illness among the more liberal justices could change that balance.

In anticipation of that day, antiabortion activists have been focusing their efforts on establishing policy at the state level.

Louisiana sets out that “the unborn child is a human being from the time of conception.” The Nebraska Legislature has said that it “expressly deplore[s] the destruction of unborn human lives.” Pennsylvania seeks “to extend to the unborn the equal protection of the laws.” Utah, Missouri and Illinois are among several other states with similar language in their constitutions or statutes.

Such statements are merely philosophical; they don’t have the force of law. But at least a dozen states have criminal laws banning abortion. They can’t be enforced as long as Roe vs. Wade remains binding. In theory, though, they could take effect immediately upon a reversal, subjecting abortion providers to penalties ranging from 12 months’ hard labor in Alabama to 20 years’ imprisonment in Rhode Island.

“What the public doesn’t realize is that the building blocks are already in place to re-criminalize abortion if Roe is overturned,” said Nancy Northup, president of the Center for Reproductive Rights in New York.

She and other abortion rights activists predict that abortion would remain legal on the East and West coasts and in a few states in between -- among them Iowa, Minnesota, Montana, Nevada and New Mexico. They expect that at least 19 states across the Midwest and South would ban abortion.

Abortion opponents say such predictions are just scare tactics.

“They’re way overestimating our potential,” said Mary Spaulding Balch, state legislative director for the National Right to Life Committee. “They’re trying to scare the American people into thinking we’re going back to the back-alley, coat-hanger days, but that’s not the case.”

“Much as we’d like to see it all end ... I think it’s a chipping-away process,” said Mary Kay Culp, executive director of Kansans for Life.

Pushing aside the spin from both sides, health law expert George Annas of Boston University said the true effect of reversing Roe would probably be minimal.

It all depends, of course, on the wording of any Supreme Court decision. If the court holds that embryos and fetuses have their own rights under the U.S. Constitution, a complete ban on abortion would be possible. But most analysts think that’s highly unlikely.

A more plausible scenario would be a limited ruling that returns some control of abortion to the states, but still recognizes a woman’s right to end a pregnancy if her life or health is at stake. If health is interpreted as broadly as it is today -- to mean emotional as well as physical health -- most women would still be able to claim the right to abortion, though they might need to go through additional steps, such as meeting with a psychologist or getting approval from more than one doctor.

“Abortion will be outlawed in a number of states, but that doesn’t mean it will be banned,” said Annas, an abortion rights supporter.

Rick Duncan, a University of Nebraska law professor who opposes abortion, agreed: “Nebraska’s a very pro-life state, but even here, I think it would be really hard to get a law ... banning abortion from the date of conception.”

About half of all pregnancies in the U.S. are unplanned, and nearly half of those end in abortion, according to the Alan Guttmacher Institute, a research group that supports abortion rights.

The nation’s abortion rate has been falling since the early 1980s. Currently, about 1 million abortions are performed each year in the U.S. Few are done to preserve the woman’s life or physical health; overwhelmingly, women say they seek abortions because they’re not prepared emotionally or financially to raise a child.

That was the case for Elizabeth Friedland, a senior at Indiana University, who said she had an abortion at 18 because she did not want an unplanned pregnancy to interrupt her life.

“If it had been illegal in Indiana, I would have gone as far as I needed to go to have this done,” Friedland said. “I would have left the country if I’d had to.”

Polls over the years have consistently shown that a slight majority of Americans -- as many as 60% in some surveys -- supports keeping abortion legal in most or all cases.

If a ban did pass in one or more states, Duncan said, he doubted it would remain in effect long. “You’d see the pro-choice side very energized,” he said. “People who hadn’t thought the issue needed much attention would suddenly see the need to elect pro-choice candidates.”

Woodruff, who represents a rural district in southwest Indiana, acknowledged that he wasn’t sure he could get his proposed ban out of committee. But as his aides rushed about his tiny cubicle of an office, he vowed to keep pressing the issue.

On his desk, he keeps a letter of support from a constituent who enclosed a snapshot of three children playing at the beach. The writer suggested Woodruff show the photo to his bill’s critics and ask: “Which one of these beautiful kids should we have killed before they were born?”

“God has created all of us, and life is precious whether it’s in the womb or out of the womb,” Woodruff said. The issue is black-and-white to him, he added, and that’s why he’s so proud of his proposal: “This bill doesn’t allow gray.”

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Huffstutter reported from Indianapolis, Simon from Denver.