Abortion foes’ strategy advances

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Antiabortion activists in several states are promoting constitutional amendments that would define life as beginning at conception, which could effectively outlaw all abortions and some birth control methods.

The campaigns to grant “personhood” to fertilized eggs, giving them the same legal protections as human beings, come as the nation in January marks the 35th anniversary of Roe vs. Wade, the U.S. Supreme Court decision legalizing abortion. During those three decades, abortion foes have succeeded in imposing a variety of restrictions, such as waiting periods and parental notification for minors. But there are still about 1.3 million abortions a year in the U.S.

Antiabortion movement: An article in Friday’s Section A on proposed ballot initiatives to give legal rights to fertilized eggs incorrectly stated that the contraceptive sponge prevents fertilized eggs from implanting in the uterus. The sponge prevents spermatozoa from fertilizing an egg and would not be at risk of being banned should the initiatives become law. —

Some activists say they are fed up with incremental steps -- and are not interested in waiting years, or possibly decades, for a more conservative court to revisit Roe. Instead, they are out to change the legal status of embryos in hopes of forcing the Supreme Court to ban abortion.

“The concept that we’re going to elect judges who will change everything has failed,” said Brian Rohrbough, a former president of Colorado Right to Life. “The logical thing is to start with personhood. . . . It’s the only legitimate tactic that does not involve a compromise.”


Ever since abortion was legalized, antiabortion groups have pushed for a federal Human Life Amendment that would define life as beginning at conception. One of the reasons the court gave for legalizing the procedure is that the fetus is not legally a person. Abortion opponents think that by granting human status to embryos they will destroy the legal foundation of the right to abortion. Every year since the decision, members of Congress have introduced a bill to do that, but they never got anywhere.

Now a grass-roots movement is underway at the state level to undermine Roe vs. Wade.

The Colorado Supreme Court last week cleared the way for advocates to begin collecting signatures to place a personhood amendment on the state’s 2008 ballot. Activists in Michigan, Mississippi and Montana are gearing up to gather signatures as well. In January, the Georgia General Assembly will consider placing a constitutional amendment on its 2008 ballot.

The initiatives face several stiff challenges.

For the most part, the campaigns are run by local activists, with little support or funding from big national antiabortion groups. Similar efforts have failed in the past: Proponents in Michigan could not collect enough signatures to put a personhood measure on the ballot in 2006. The Georgia proposal stalled in the Legislature this year.

Any amendments that make it to the ballot will be voted on by a public that has expressed consistent support for allowing at least some abortions, especially during the first trimester, which is when 90% of U.S. abortions occur.

In South Dakota, a deeply conservative state, voters last year resoundingly rejected a ballot measure that would have outlawed virtually all abortions.

Even if the amendments pass, it could take years of legal challenges before they reach the Supreme Court.


Still, national abortion-rights groups consider the current wave of amendment campaigns a legitimate threat.

They worry that the language of the initiatives might mislead voters. In Colorado, for instance, voters will be asked whether the constitution should “include any human being from the moment of fertilization as ‘person’ . . . in those provisions of the Colorado Constitution relating to inalienable rights, equality of justice, and due process of law.” The amendment is being promoted by a group called Colorado for Equal Rights.

“This type of language may be scarier than an outright ban,” said Belinda Bulger, deputy legal director for NARAL Pro-Choice America. “First, because it can be hard for people to understand what it’s doing, and second, because it would be far further reaching.”

Abortion-rights advocates tried to block the Colorado ballot initiative by claiming the language would confuse voters, but the state Supreme Court ruled 7-0 that the initiative was acceptable as written. The measure’s proponents must collect 76,000 signatures in the next six months to qualify for the general election ballot.

If successful -- and upheld by the courts -- the amendments could outlaw certain forms of birth control that prevent fertilized eggs from implanting in the uterus, such as the birth control pill or contraceptive sponge. They also could ban or restrict common fertility treatments, such as in vitro, in which multiple eggs are fertilized, but only some are introduced into the mother’s womb.

Amendment supporters freely admit that giving a fertilized egg the legal status of a human being would affect a wide range of medical decisions. That’s precisely the point, they say: “We’re trying to establish some bioethical standards to move us into the 21st century,” said Dan Becker, president of Georgia Right to Life.


Starting in the late 1980s, 10 states amended their constitutions to provide general protections for unborn life. The U.S. Supreme Court, however, implied in one case that the amendments did not trump its core holding that women have a legal right to end pregnancies.

Even though the current court is the most conservative in decades, it has not reversed Roe.

That’s one reason several prominent abortion opponents are skeptical of the new round of proposed amendments.

“Most legal scholars would doubt they have any chance to overturn Roe v. Wade,” said Clarke Forsythe, president of Americans United for Life.

But smaller, grass-roots group have read legal analyses that lead them to believe the amendments could end abortion, said Cal Zastrow, head of Michigan Citizens for Life, who consults with amendment supporters nationwide. He said 12 states tried to pass versions of the amendment during the 2006-07 legislative session. None were successful.

“In every election cycle there are more and more people attempting something,” he said. “It’s really growing.”


Antiabortion activists hold out the most hope in Georgia, where the amendment has the backing of some legislative leaders. They’re also optimistic in Colorado, where the campaign to collect signatures kicked off last week with a rally headlined by Alan Keyes, a Republican presidential candidate.

“It’s not just Bible-thumping kooks or some Roman Catholic nuns” supporting the measure, Zastrow said. “There are a lot of moms and pops that are pro-life who are going to say, ‘Why haven’t we done something in our state?’ ”

Kristi Burton, a spokeswoman for the group promoting Colorado’s initiative, said the organization hoped to mobilize voters through church networks. The strategy worked last year in Colorado for a ballot measure banning same-sex marriage.

In promoting the personhood amendment, Burton said her group would aim to present a positive, affirming message: “We’re not banning abortion. We’re defining life.”

Her opponents are also honing their sound bites for a future campaign:

“What is the potential impact on our court system of every fertilized egg having access to Colorado’s court?” asked Toni Panetta, deputy director of NARAL Pro-Choice Colorado.

Colorado is difficult territory for abortion foes. In 1967 it became the first state to legalize abortion in certain cases, permitting the procedure in cases of rape, incest or for the health of the mother.


“Colorado opened this evil door,” Rohrbough said, “and there are many in Colorado who would like to close it.”

To Rohrbough, the initiative has additional import. A lifelong opponent of abortion, he took up the cause publicly after his son, Daniel, was killed in the 1999 shooting at Columbine High School in Colorado.

“The environment that happened at Columbine was created by a culture of death,” he said.

Proponents of the initiatives say their campaign has a political value as well. Becker, the Georgia Right to Life president, said it could energize dispirited conservatives during the 2008 presidential election.

“It’ll draw a lot of conservatives to the polls,” he said, “in an otherwise lackluster presidential year.”