Sen. Dianne Feinstein

(WOMENSENEWS)–Women in a majority of U.S. states risk losing the right to obtain an abortion due to changes on the Supreme Court bench and the proliferation of abortion bans–some enacted, some in waiting–the Center for Reproductive Rights said yesterday in its "What If Roe Fell?" report.

A reversal of Roe v. Wade–the 1973 Supreme Court decision that decriminalized abortion–would mean that abortion law falls to the states, where anti-choice activists are pursuing a steady, two-front attack against abortion rights.

On one front, activists are pushing contentious legislation challenging Roe that is designed to be fought up to the Supreme Court. In the last three years, 27 such abortion bans have been introduced in 14 states, including Colorado, Georgia, Missouri and West Virginia.

Other states–such as Alabama, Delaware, Massachusetts and Michigan–enacted bans prior to the Roe decision that are still on the books. Many of the pre-Roe bans have been overturned or at least not been enforced since 1973 but could be revived. Many include exceptions to protect the life or health of the woman.

On the second front, activists are introducing "abortion bans-in-waiting," or laws that would be enacted by a Roe reversal. Because these state-level bans are not yet law, it is not possible for pro-choice groups to mount legal challenges against them.

‘Hard to Galvanize Public Response’

What if Roe Fell

"It’s a good strategy . . . a way for them to silently lay a foundation largely without public knowledge," says Katherine Grainger, state program director for the New York-based Center for Reproductive Rights. "Because they don’t immediately go into effect now, it’s hard to galvanize a public response."

There were no abortion-bans-in-waiting laws in 2004, the center’s report notes, but by 2007 four states–Louisiana, Mississippi, North Dakota and South Dakota–had passed them. Another five states–Kentucky, Missouri, Oklahoma, Texas and Utah–have already considered or are currently considering them.

Authors of the report–including Grainger and other legal researchers–estimate as many as 30 states–including Ohio, Michigan, Louisiana, Indiana, Oklahoma and Texas–could pass legislation to restrict or altogether ban abortions in the wake of a Roe reversal.

Alaska, California, Florida, Maine, Vermont and New York are among the 20 where abortion is not expected to face immediate legal challenge.

Changes on the Bench

As state activism pressures Roe from below, Roe is also vulnerable from above. Authors say changes on the Supreme Court–in particular the July 2005 retirement of Justice Sandra Day O’Connor, her replacement by Justice Samuel Alito and the appointment of Chief Justice John Roberts–have shifted the balance.

The Supreme Court’s 5-4 decision last April in Gonzales v. Carhart upheld a federal law that banned a specific abortion procedure used after 12 weeks of pregnancy and eliminated the precedent that legal restrictions placed on abortion must include an exception to protect the health of the woman.

"I remember when abortion was illegal, the days of coat-hanger abortions," Sen. Dianne Feinstein, D-Calif., said at the report’s launch. "I’m very worried a Supreme Court decision now would take us back there. It is time to mobilize women to fight."

Sixty-three percent of 1,000 registered voters surveyed agreed that Roe v. Wade is vulnerable, and 42 percent said they opposed leaving the matter up to the states rather than the Supreme Court, in a poll conducted by Lake Research Partners that accompanies the report. Seven in 10 respondents said the government should not interfere with abortions that are medically necessary.

The Center for Reproductive Rights, which promotes reproductive rights nationally and internationally, issued a similar report in 2004.

Flagging a Quiet Effort

President Nancy Northup said the group updated the report to flag a quiet but "dramatic and frightening attempt to create a post-Roe world."

Legislative opposition to abortion rights is underway in 17 states and the report’s authors say the goal is to get a case to the Supreme Court where a reversal of Roe v. Wade is now possible.

The year following O’Connor’s departure a dozen states passed or attempted to pass laws to limit abortion rights. By 2007, the number of such bills that were introduced skyrocketed to 38 in 17 states. It was the most concerted legislative challenge since the early 1990s, when a 1992 Supreme Court decision–in Planned Parenthood v. Casey–held that a state could enact laws to affect access to abortion in the first trimester as long as exceptions to protect the health of the woman were secure.

The only states where abortion rights would be preserved are those that have protections established in their state constitutions, or where state laws are already in place, the report finds. "Given the variations in law and political climates in the 50 states, the overturning of Roe would result in a patchwork of rights in which women seeking abortions would be strongly protected in some states and completely denied the right in others, with different levels of protection in between."

Low-income women in particular would be affected, the report finds, because they already struggle to find and pay for a local, legal abortion.

"If Roe is overturned, there is a strong possibility that a clandestine, illegal underground will again emerge to meet the need for abortions, a need that virtually no one believes will disappear," the report warns, noting that seven of the 10 poorest states in the country are considered likely to ban abortions within a year of reversing Roe.

Pro-choice activists call for counter-activism to repeal existing legislation, preparation to battle new state restrictions and support for the Freedom of Choice Act, now being lobbied in Congress and some states.

Introduced last April by Rep. Jerrold Nadler, D-N.Y., and Sen. Barbara Boxer, D-Calif., the bill provides protection for women to make decisions regarding their individual reproductive health needs without any government interference, even if Roe v. Wade is reversed.

Juliette Terzieff is a freelance journalist currently based in Tampa, Fla., who has worked for the San Francisco Chronicle, Newsweek, CNN International and the London Sunday Times during time spent in the Balkans, the Middle East and South Asia.

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For more information:

Center for Reproductive Rights, "What If Roe Fell?":

NARAL Pro-Choice America, Freedom of Choice Act:

"Court’s Abortion Ruling Undercuts Roe":

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