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Abortion Ban Puts Strategies in Doubt

Times Staff Writer

South Dakota’s ban on nearly all abortions, signed into law Monday, has opened deep rifts within both the antiabortion and the abortion-rights movements, as the two camps struggle to frame the issue to their political advantage.

The divisions have turned traditional abortion politics topsy-turvy.

Some foes of abortion -- fearful that South Dakota has moved too far, too fast -- now find themselves reluctantly opposing efforts to protect all fetal life from the moment of conception. They are even angling to block another abortion ban that seems likely to pass in Mississippi.

For their part, some abortion-rights activists feel they must acknowledge the sentiment behind the South Dakota ban by assuring America that they, too, regard abortion as a grave moral concern. But such language outrages others in their movement, especially abortion doctors, who feel it stigmatizes and alienates their patients.

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“There’s a mood out there that change is in the offing,” said John Seery, a professor of politics at Pomona College who has written extensively on abortion. “There’s a lot of jockeying, a lot of testing, a lot of pushing the envelope.”

The turmoil in both camps underscores the significance of South Dakota’s law. It bans all abortions in the state, including the few performed each year in cases of rape and incest and the hundreds done in the earliest weeks of pregnancy. The only exception is if physicians deem an abortion necessary to save the mother’s life.

Doctors who violate the ban would be subject to as much as five years in prison.

In signing the bill, Republican Gov. Michael Rounds acknowledged it was, for now, a symbolic gesture. The law is due to take effect July 1 but will almost certainly be blocked in the courts because it directly -- and deliberately -- challenges Roe vs. Wade, the 1973 Supreme Court ruling that established abortion as a constitutional right.

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An anonymous donor has pledged $1 million to help South Dakota defend the new law in court. Citizens of more modest means have also stopped by the governor’s office to drop off checks.

Those backers hope the ban will give the Supreme Court an opportunity to reverse Roe vs. Wade, much the way the justices used Brown vs. Board of Education in 1954 to overturn a decades-old precedent that allowed segregation in public schools.

But analysts on both sides say Roe is secure for now. Even if President Bush’s new Supreme Court appointees -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- prove to be opponents of Roe, a slim majority of five justices is on record as backing Roe.

Promoters of South Dakota’s ban are calculating that one of the liberal justices will retire -- and be replaced by a conservative -- before their case winds its way to the high court. Daniel McConchie, vice president of the Americans United for Life, warns that the South Dakota strategy could backfire.

If the public knows an all-out ban on abortion is headed to the Supreme Court, “getting a [conservative] justice through the confirmation process will be like World War III,” McConchie said.

He’d rather rely on the Roberts court to steadily chip away at abortion rights without overturning Roe outright. For instance, he’s hoping that in an upcoming case on the procedure that is called “partial-birth abortion” by opponents like him, the justices might give states more leeway to restrict second- and third-trimester procedures.

Many states ban abortions of viable fetuses, but the Supreme Court has so far insisted that such laws exempt women whose health is endangered by the pregnancy -- and health can be defined broadly to include not just her physical condition, but also her emotional state, and even her family circumstances.

McConchie said he thought there was a good chance the present court would “narrow that loophole.”

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Such incremental steps would save many more fetuses than South Dakota’s ban, said Mary Kay Culp, executive director of Kansans for Life. “As a pro-lifer, I feel guilty saying this, because people are out there all excited, but a ban is actually counterproductive,” she said.

She and others argue that their movement needs more time to turn society firmly against abortion. They want to hold public hearings to investigate the alleged (and hotly disputed) risks of abortion. They plan to promote ultrasounds to fix an image in the public’s mind of the embryo as a beautiful, human life. They aim to use more women who have had abortions -- and now regret it -- as spokeswomen for their cause.

Until then, they’re reluctantly advising legislators in Georgia, Indiana, Missouri, Mississippi, Ohio and Tennessee not to pass the bans under consideration in those states.

Instead, they urge legislators to pass provisions such as requiring a woman to attend counseling and to wait a day or more before getting an abortion. The latest trend is to require doctors to show a woman her ultrasound or to inform her that the fetus might feel pain during an abortion.

Legislatures are also continuing to drive abortion clinics out of business with a wide variety of regulations, including the width of the hallways and whether out-of-state doctors can come in to perform abortions.

There is one clinic in South Dakota, for example, another in Mississippi and two in Missouri (one of which only offers first-trimester abortions two half-days a month).

Missouri state Sen. Jason Crowell -- like his colleagues in South Dakota -- refuses to be satisfied with making abortions harder to obtain. He views the procedure as an unambiguous evil and says the time is past due to act, no matter who’s sitting on the Supreme Court.

“We’ve been debating this since 1973,” Crowell said. “If not now, when? If not us, who?”

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In Mississippi, that philosophy propelled a ban on abortion (except in cases of rape, incest or danger to the mother’s life) to an overwhelming victory in the Mississippi House last week. The bill looked poised to pass the Senate and Gov. Haley Barbour had pledged to sign it. On Monday, though, antiabortion activists called off their drive to pass the bill and asked for time to rethink the strategy.

“We’re trying to get a consensus,” said Terri Herring, president of Pro-Life Mississippi. “What we don’t want is five different pro-life voices out there.”

The abortion-rights side has had even more trouble finding a unified voice.

The liberal think tank Third Way is circulating a memo on Capitol Hill advising politicians who support abortion rights to recalibrate their message. Instead of stressing a woman’s right to choose, they should tell voters that they support “personal liberty,” but accept that it’s a “moral responsibility” to reduce the number of abortions. (That number has declined steadily from a peak of 1.43 million in 1990 to 1.29 million in 2002, the latest year statistics are available.)

A number of abortion-rights activists have bought into that strategy. They’ve been on the defensive for more than two decades, ever since conservative and fundamentalist Christians began pushing social issues like abortion to the forefront of political debate.

They view South Dakota’s ban as a watershed moment, and are determined to seize the opportunity to switch from defense to offense.

“Talking about prevention really resonates with voters, because it’s positive, it’s proactive ... it makes constituents feel good,” said Julie Burkhart, the executive director of ProKanDo, an abortion-rights lobby in Kansas.

Such tactical positioning infuriates Dr. Warren Hern, who runs an abortion clinic in Boulder, Colo. He, too, would like to see fewer women with unwanted pregnancies; he counsels all his patients on contraception. But in his view, the availability of safe, legal abortions should be a cause for national pride -- not shame.

He urges politicians to respond to the South Dakota ban with statements like this: “Before 1973, women were dying like flies from illegal abortions. That has stopped, and it’s one of the great public health success stories of the 20th century.”

Susan Hill agrees. She’s president of the National Women’s Health Organization, which runs abortion clinics in five states, and she has been flooded with calls and e-mails from supporters outraged at South Dakota’s ban.

Hill sees only one way to capitalize on that anger: a campaign to remind Americans that abortion is one of the most common surgical procedures in this country. One out of every three women will have an abortion in her lifetime, according to the Alan Guttmacher Institute, a research organization that supports abortion rights.

“We need to make people realize that this is about them: Their family. Their daughter,” Hill said.

Above all, she said: “We have to stop apologizing” for the nation’s abortion rate -- and start mobilizing the millions of women “who believe it was the best choice for them.”

If her side can do that, “this might be the best thing that ever happened to the pro-choice movement,” Hill said.

With both camps in such flux, Seery, the Pomona College professor, has given up trying to peg winners and losers.

“There is no conventional wisdom at this point,” he said. “The traditional camps aren’t pursuing the traditional strategies ... All bets are off. We’re in a period of transition.”


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