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Abortion Battle Shifts To State Legislatures

State bans of partial-birth abortions could lead to a challenge of Roe v. Wade.

As the Senate begins its latest high-octane debate on so-called "partial-birth" abortions, a parallel effort to outlaw the procedure state by state has accelerated.

So far, 11 states have enacted bans covering this controversial form of late-term abortion, eight of them this year alone. In two more states, bills await the governor's signature. And in at least 22 additional states, legislatures are still considering bills.

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The move to ban partial-birth abortions represents a profound shift in the abortion debate. For the first time attention has focused on what happens to the fetus during an abortion rather than the woman.

The debate also represents a major public relations victory for the pro-life cause, and is likely to fuel further efforts to ban other forms of abortion.

For now, though, in most states that have enacted a ban on partial-birth abortion, the practical impact is minimal. In Ohio and Michigan, legal challenges have halted the ban fully or partially.

In the other states, where the laws will take effect over the next few months, abortions of viable fetuses are already banned - a right states have under the terms the Supreme Court laid out when it legalized abortion.

But the state-by-state effort is having an impact: The legislatures provide 50 different venues for opponents of abortion to publicize how a partial-birth abortion is performed and, they hope, to swing public opinion away from all abortions.

Abortion-rights advocates are also concerned that the state laws provide their opponents with a legal vehicle with which to challenge the right to abortion in the Supreme Court, as laid out in the 1973 ruling Roe v. Wade.

"These laws are intended to be a direct attack on Roe v. Wade," says Kathryn Kolbert, legal counsel of the Center for Reproductive Law and Policy in New York. Ms. Kolbert predicts that at least one of the state laws will go all the way to the Supreme Court.

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A key issue is the fact that some partial-birth abortions are performed before the point when a fetus can survive outside the womb. So if the Supreme Court were to uphold a law banning this procedure, it would effectively be tossing out the crucial finding in Roe - that a state has the right to protect "potential life" only after the fetus is deemed viable. That is left to doctors' discretion.

Some historians on the abortion issue say this outcome is highly unlikely, because the court is an inherently conservative institution that does not toss out precedents as big as Roe v. Wade.

'A statute that in any way impinges on pre-viability abortions will be voided, period by the court," says legal historian David Garrow. "Viability is the bright line for the court."

But neither side in the abortion war assumes Roe is a permanent part of the legal landscape. Thus, the battle rages.

Interestingly, at least five state legislatures have rejected efforts to ban partial-birth abortion, in most cases because the bills did not allow a health exception for the mother.

In Washington, the bill has passed every time it came up for consideration - a reflection of strong public support for the partial-birth ban.

In the Senate, where a vote may take place May 14, the health exception for the mother is the crucial sticking point. Foes of abortion believe a "health exception" can be broadly applied, effectively allowing any abortion.

The bill under consideration, whose lead sponsor is Sen. Rick Santorum (R) of Pennsylvania, contains no health exception for the mother and is the exact same bill the House passed in March.

In addition, it is the same bill passed by the last Congress and vetoed by President Clinton, who said he would have signed it if it had had a health exception.

At press time, the Republicans looked set to fall a few votes short of reaching the 67 Senate votes needed to win a veto-proof majority. Clinton has promised to veto the bill again.

In a countermove, Senate minority leader Tom Daschle (D) of South Dakota has proposed an alternative version that would include a rigidly defined health exception for the mother. But his bill would also ban all abortions of fetuses that can survive outside the womb.

On May 13, White House officials said Clinton would consider supporting Senator Daschle's version of the bill.

Daschle's amendment is likely to fail, but his gambit has alarmed abortion-rights advocates, who fear he has offered too much to win peace on the controversial issue.

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