Court Abortion Ban Ignites Activism in States

WASHINGTON (WOMENSENEWS)–In the two weeks since the Supreme Court upheld a controversial abortion ban that has no health exception, state lawmakers have pushed anti-choice legislation in Michigan, Louisiana, Iowa, North Dakota, Georgia and North Carolina.

And that is only the beginning, say reproductive rights advocates who are also watching Alabama, Missouri, South Carolina and Texas.

New York is so far the only state to follow up on the Supreme Court’s decision with a new bill to strengthen access to abortion.

The decision “has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion,” Nancy Keenan, president of NARAL Pro-Choice America, said in a statement.

Clarke D. Forsythe, president of Americans United for Life, a group in Chicago that opposes abortion, agreed. The decision, he wrote in a May 1 letter to supporters, “opens the door to more aggressive regulation.”

Katherine Grainger, legislative counsel at the Center for Reproductive Rights in New York, said the real legal onslaught will come next year. Most state legislatures have already adjourned for the year or have passed deadlines barring introduction of new legislation. “Right out of the gate we’re going to see a whole host of things,” she said, referring to 2008.

On April 19, one day after the court announced it would uphold a law that barred “partial birth” abortion, a term that does not refer to a specific medical procedure, state lawmakers in Michigan and Louisiana introduced similar legislation that would outlaw the “partial birth” abortions in those states.

Proponents regard such copycat legislation as a way for states to pass more restrictive versions of the federal ban. The Louisiana version, for example, carries prison terms of up to 10 years, considerably harsher than the two years in the federal law. Such bills could also trigger state enforcement mechanisms, which might be more aggressive in pursuing violations of the law than the Department of Justice.

Anti-Choice Activity in States

Lawmakers in Michigan have introduced other anti-choice bills since the court decision, as have legislators in North Carolina, where a bill requiring abortion providers to perform an ultrasound before providing an abortion is now pending.

On April 20, the Georgia Legislature passed a measure requiring abortion providers to offer women the opportunity to see the fetus in an ultrasound before undergoing an abortion.

On April 23, the North Dakota state Legislature backed a ban on most abortions that will take effect if the Supreme Court overturns Roe v. Wade, the 1973 decision that legalized abortion and said that states had an interest in regulating abortion procedures to protect the health of the pregnant woman. Doctors found guilty of violating the law would face up to five years in prison and $5,000 fines.

And on April 25, the Iowa state Senate amended a health budget bill to prohibit state funding of “partial birth” abortion.

It is not clear how much of the legislative activity can be linked directly to the Supreme Court decision. The bills in Georgia and North Dakota were introduced before the court announced its decision and may well have passed in the absence of the boost from the Supreme Court.

Advocates on both sides of the issue, however, say the court’s ruling has galvanized abortion opposition at the state level.

Pro-Choice Bills in the Works

Some states, however, are moving in the other direction and stepping up their protection of a woman’s right to choose.

Last week, New York Gov. Eliot Spitzer, a pro-choice Democrat, introduced legislation to safeguard abortion rights. The Reproductive Health and Privacy Protection Act would update New York law to establish a fundamental right to privacy. Current state law treats abortion as homicide in some cases.

Lawmakers in others states–including Connecticut, Minnesota, Washington and Iowa–have pushed broader reproductive rights legislation in areas such as sex education and birth control since the Supreme Court decision.

National reproductive rights groups, meanwhile, are lobbying states to enact their own version of the Freedom of Choice Act, a federal bill they are backing that codifies the rights established in Roe v. Wade, the 1973 Supreme Court ruling that found abortion was part of a woman’s constitutional right to privacy.

Seven states–California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington–have passed the Freedom of Choice Act in previous years, according to NARAL Pro-Choice America.

But the stronger offensive is likely to come from anti-choice activists emboldened by the recent appointments of Justice Samuel Alito and Chief Justice John Roberts.

The April ruling held that the federal abortion ban was constitutional despite the lack of an exception to protect the health of the woman and banned a specific medical procedure–intact dilation and evacuation–for the first time. Backers say that specific procedure is used only in rare circumstances, but critics say because there is no legal definition of “partial birth abortion,” the law and the ruling could apply to abortions as early as 12 weeks.

Under the ruling, a woman would still be able to access certain kinds of second-trimester abortions but would not necessarily be able to have the banned procedure, even if her doctor considered it the safest and best for her individual circumstances.

Health Exception Precedent Eliminated

The ban does not make an exception to protect the woman’s health, a reversing a precedent laid out more than three decades ago and repeatedly affirmed by the court.

Passed and signed into law by President George W. Bush in 2003, the abortion ban has been enjoined by legal challenges for more than three years. It is set to take effect this month.

Grainger said she expects to see a two-pronged approach in the states, especially those where anti-choice lawmakers wield heavy influence in state legislatures and governorships. These include Alabama, Idaho, Indiana, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah, Virginia, West Virginia and Wisconsin.

Some states, she said, will attempt to pass outright bans on abortion that can be used as legal vehicles to press for a reversal of Roe v. Wade by the Supreme Court.

Justice Anthony Kennedy, who wrote the opinion for the court’s 5-4 majority in the federal abortion ban case, has also signaled more aggressive restrictions, especially in the area of counseling, said Americans United for Life’s Forsythe.

“The state has an interest in ensuring so grave a choice is well informed,” Kennedy wrote.

Restrictions that fall under that category include laws that would require doctors to offer ultrasounds before performing abortions and to give women state-scripted information about abortion and the potential for a fetus to feel pain.

Elizabeth Nash, a public policy associate at the Guttmacher Institute, a pro-choice think tank in New York, doesn’t expect state lawmakers to stop there. “Really, the doors are wide open,” she said.

Allison Stevens is Washington bureau chief at Women’s eNews.

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