Supreme Court Backtracks on Abortion Rights
One activist says the Supreme Court's ruling 'swings the door wide open.' A flood of legislation is expected.
WASHINGTON - Elated and emboldened, antiabortion activists in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hope of building on their victory Wednesday in the Supreme Court.By a 5-4 vote, the justices upheld a federal ban on a procedure that critics call "partial-birth" abortion, which involves partially delivering the fetus, then crushing its skull. The ruling included strong language that asserted the state's "legitimate, substantial interest in preserving and promoting fetal life."
Advocates on both sides of the abortion debate predicted that the ruling would spur a flood of legislation.
"We're moving beyond putting roadblocks in front of abortions to actually prohibiting them," said Troy Newman, president of Operation Rescue, a national antiabortion group based in Wichita, Kan. "This swings the door wide open."
He and other strategists said they hoped to introduce legislation in a number of states that would:
Ã¢â‚¬Â¢ Ban all abortions of viable fetuses, unless the mother's life is endangered.
Ã¢â‚¬Â¢ Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.
Ã¢â‚¬Â¢ Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they may become suicidal after the procedure.
Ã¢â‚¬Â¢ Lengthen waiting periods so that women must reflect on such counseling for several days before obtaining the abortion.
It is far from certain that the Supreme Court would uphold all those proposals. But antiabortion activists clearly think momentum is on their side.
In particular, they are pleased that the court upheld an outright ban, with no exceptions, on a surgical procedure performed in the second trimester, when the fetus is too large to be evacuated through a suction tube.
For more than 30 years, the Supreme Court has required every major restriction on abortion to include an exception waiving the law if a woman's physical or emotional health is at stake.
As a result, many abortion bans have been largely symbolic. At least 40 states outlaw abortion of viable fetuses. But because of the health exception, doctors can still terminate such pregnancies if they certify that the woman suffers depression or anxiety.
Abortion opponents consider that a major loophole, leading to what they call "abortion on demand."
The ruling gave them hope for a new standard. The procedure at issue is used only rarely - it is more common in second-trimester abortions to dismember the fetus inside the womb - but abortion doctors had argued that they should be able to use it when they considered it better for the woman's health. The justices disagreed.
"I'm ecstatic," said Leslee Unruh, an antiabortion activist in South Dakota. "It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel."
She spent the day conferring with lawyers on how to leverage the ruling to maximum effect in the states. "We're brainstorming, and we're having fun," she said.
Abortion rights lawyer Katherine Grainger predicted that the ruling would "open the floodgates" in state after state.
"The state's interest in the fetus has now been elevated above the woman's health, whereas before the women's health always trumped," said Grainger, who directs state policy for the Center for Reproductive Rights. "States are going to push the boundaries and try to restrict access on all fronts."
Because most state legislatures have only a few more weeks in session, Grainger said, she expects that the bulk of the proposals will come next year. When the bills are filed, antiabortion activists plan to pursue two strategies that won tacit endorsement in the Supreme Court ruling.
First, they intend to try stirring public discomfort about specific abortion techniques. The court opinion referred to the partial delivery of a live fetus during an abortion as shocking. Activists plan to argue that other, far more common, methods of ending pregnancy are just as distasteful.
"This procedure was outlawed because it was exposed. If every procedure were exposed in this way, they would all be deemed equally cruel," said Terri Herring, an antiabortion lobbyist in Mississippi. She envisions introducing bans on one procedure after another in an attempt to build on the ruling.
That could be an effective strategy, said Ted G. Jelen, a political scientist who studies abortion politics at the University of Nevada, Las Vegas.
"If they can shift the debate to what happens to the fetus, rather than who decides, that's a useful frame for them," he said.
The second linchpin of the antiabortion strategy is the testimony of women who have had abortions - and regret them.
The ruling cited affidavits from several women who said their abortion caused them lasting psychological trauma. Though the ruling said the court could find "no reliable data to measure the phenomenon," it described abortion as "fraught with emotional consequence."
"That's very good, strong language, and I think it sets the foundation for future rulings," said Anne Newman, policy director for Operation Outcry, which has collected 2,000 affidavits from women remorseful about their abortions. Their written testimony is making the rounds of statehouses.
Abortion rights supporters have tried to fight back against such tactics. They have told the stories of women who were raped, or who thought that they had no choice but to abort a severely deformed fetus. They have argued that abortion restrictions fall most heavily on the young and the poor. And they have tried to rally broad support for reproductive freedom.
"This is going to be a wake-up call for Americans who care about women's health," said Nancy Northrup, president of the Center for Reproductive Rights.
Political scientist Alan Abramowitz at Emory University said it was too early to know how the debate would unfold - though he was certain it would be polarizing. As he put it: "This will exacerbate the divisions that already exist."
Copyright 2007 Los Angeles Times