States Stitching Patchwork Quilt of Abortion Laws
Abortion has largely become a legislative, rather than judicial issue. In the last 15 months, the Supreme Court has turned over to states control of access laws and has upheld the constitutionality of parental notification laws. Three states have already passed stricter legislation. Others take up the issue next year.
PATRICIA IRELAND holds up a map of the United States, about 20 of the states colored in black, and declares defiantly to the assembled abortion-rights activists: ``These are the states Newsweek predicted would likely restrict abortion after the Webster decision.''
``And this,'' continues the executive vice-president of the National Organization for Women (NOW), holding up a different map, ``is what has actually happened!''
Only three states are blackened. A cheer goes up among the largely young, female crowd, gathered for a NOW conference on abortion-clinic defense.
Indeed, since the Supreme Court's July 1989 ruling in Webster v. Reproductive Health Services, which paved the way for states to limit access to abortion, only Pennsylvania, South Carolina, and West Virginia - plus the US Pacific island of Guam - have signed new restrictions into law.
This is not for lack of trying. Since Webster, more than 400 pieces of abortion-related legislation - four-fifths of it anti-abortion - have been introduced in 41 states.
But with an increasingly conservative Supreme Court, an anti-abortion White House, an anti-abortion US House of Representatives, and an ambivalent American public, it may be only a matter of time before many of the states considered likely to restrict abortion do so.
In the past year, both Idaho and Louisiana passed laws criminalizing most abortions, only to see them vetoed by the state's traditionally anti-abortion governors for being too restrictive. But anti-abortion advocates plan to try again next year.
Abortion-rights leaders attribute their success so far in staving off anti-abortion legislation to two key factors: A reinvigoration of their movement, sparked by the fear that the Supreme Court had now begun to ``chip away'' at the broad abortion rights established by its 1973 Roe v. Wade ruling; and squeamishness among lawmakers about voting on this most divisive of issues in an election year. Many state legislatures decided to put the matter off until 1991.
``We expected a bad year, but it didn't materialize,'' says NOW president Molly Yard. ``Am I worried that our side will become complacent? You bet. But people have to understand that all the legislation that was killed will be reintroduced in just a couple of months.''
In the long run, analysts of abortion politics see the US looking increasingly like a patchwork quilt, with abortion virtually banned in some states and protected in others. As in the pre-Roe days, women with money will always be able to fly someplace to have an abortion; women with lesser means will not.
Right-to-lifers acknowledge that Webster has galvanized the opposition. But they argue that misperceptions - aided by what they see as a predominantly pro-choice media - have clouded the picture.
``As a result of the pro-abortion awakening, there's an impression that the pro-abortion people are winning and pro-life is losing,'' says Burke Balch, who handles state legislative strategy for the National Right to Life Committee (NRLC).
Mr. Balch argues that in state legislative races, the pro-choice movement has won more elections where abortion was an issue than it has lost - a claim made with equal assertiveness by abortion-rights advocates.
Further, Balch says, the four pieces of pro-life legislation signed into law since Webster are the most in any year since Roe v. Wade. Media coverage - like the Newsweek article touted by NOW's Ms. Ireland - created a false impression that pro-life laws could have been passed by now in dozens of states, he adds.
Still, politicians have responded to the new momentum of the abortion-rights movement. Most of those who changed their position on abortion have gone from anti-abortion to pro-choice.
The Republican National Committee now pointedly describes itself as the ``umbrella party'' - able to accommodate any views on abortion, despite its traditionally anti-abortion platform.
Each side in the abortion debate claims public opinion favors its view, in part because, depending on how the questions are framed, each can produce polls to support its argument.
In fact, the polls, which have shown remarkable stability, reveal a hard core of support for both sides and a muddled middle; neither side has the majority.
When the National Opinion Research Center asks, ``Should it be possible for a pregnant woman to obtain a legal abortion if she wants it for any reason?'' a majority of Americans have steadily said ``no'' since 1977 (though the number saying ``yes'' in 1990, 42 percent, is the highest yet).
But when Americans were asked last July in a Time/CNN poll whether they would favor or oppose a Supreme Court nominee who would vote to overturn Roe v. Wade - which guarantees the right to an abortion for any reason through the first trimester without state regulation - 59 percent said they would oppose and only 29 percent said they would favor such a nominee . Post-Webster legislation
Of the four post-Webster pieces of legislation that have made it into law, Guam's is the most severe. It outlaws all abortions, except when the mother's life is in danger. For now, enforcement is blocked pending appeals that will likely take the case to the Supreme Court.
Pennsylvania's new law bans most abortions in hospitals that receive public funds, requires notification of the husband before abortion, requires a 24-hour waiting period before abortion, bans abortion for sex-selection, and bans abortion after the 24th week of pregnancy unless the mother's life is endangered.
The provisions on spousal notification and the 24-hour waiting period have been blocked due to legal challenges. These, and other Pennsylvania statutes restricting abortion, are also expected to reach the Supreme Court - and will likely be the next case that gives the court the opportunity to overturn Roe v. Wade.
South Carolina now requires parental consent; and in West Virginia, public funding for abortion has been limited.
Abortion-rights advocates scored a victory in Connecticut, where legislation was enacted codifying the broad abortion rights established by Roe.
Activists on both sides of the debate say they need to analyze the results of the Nov. 6 elections before they can hammer out their final strategies.
Not only are the abortion positions of rank-and-file state legislators important, but also those of governors, state attorneys general, and legislative leaders.
In New Hampshire, for example, abortion-rights legislation passed both houses, but was vetoed by the state's anti-abortion governor.
For the right-to-lifers, an aggressively anti-abortion state attorney general - as Pennsylvania has - is probably necessary to push a test case all the way to the Supreme Court. Some states are not willing to foot the bill, which can run to $1 million in fees. Strategies in place
Still, on both sides, the basic outlines of strategy are in place. The National Right to Life Committee, the most influential of the anti-abortion organizations, will continue to push its ``model legislation'' - eight laws that local anti-abortion advocates can choose from to suit their state.
They are: 1. Banning abortion as ``birth control.'' 2. Stopping abortion for sex selection. 3. Requiring ``informed consent.'' 4. Requiring notification of the father. 5. Parental involvement for minors. 6. Banning state funding. 7. Funding agencies that provide alternatives to abortion. 8. Funding of public information.
The first law is the most sweeping, in that it would outlaw nine out of 10 abortions that are currently performed. In the anti-abortion movement, a ``birth control'' abortion applies not only to people who don't use contraceptives but also to those who do. The only exceptions would be pregnancy caused by rape or incest, or cases when the life of the mother is threatened.
Balch of the NRLC acknowledges that the second model law - banning ``sex selection'' abortions - would be tough to enforce. But, he says, by putting the question before the public, ``it gets people thinking, and can have an effect on public consensus.''
These two model laws, specifically, are ``brilliant and terrifying,'' as they attempt to redefine the abortion debate, says Janice Steinschneider, a legal specialist on family issues at the liberal Center for Policy Alternatives.
``They are designed to confuse the public. Even people who are pro-choice would say they oppose abortion as a means of birth control, until they knew what was actually meant,'' she adds.
In March, both houses of the Idaho legislature passed such a law, but it was vetoed by the otherwise anti-abortion Gov. Cecil Andrus, who called it too restrictive. The Idaho debate also produced some competition from within the anti-abortion movement, as the American Life League argued for even stricter legislation.
Parental involvement laws - in which a minor must either inform or gain the consent of one of both parents before an abortion - are one area where the anti-abortion movement has the unambiguous support of the American public.
In fact, only 12 states and the District of Columbia do not have such laws. In most of the states with parental involvement laws, however, the law is either not inforced or is blocked by the courts.
In recent Supreme Court decisions, the justices have found parental consent laws to be constitutional as long as they allow the minor to get an exception from a judge. NRLC proposes legislation that would eliminate ``this procedural end run around parental involvement.'' Erase, restore, or enshrine
Across the country, the next state legislative sessions are likely to see more bills from the abortion-rights side as well, either to eliminate post-Roe restrictions, to restore Medicaid funds for abortions, or to write into law the principles enshrined in Roe v. Wade.
But playing the anti-abortion movement at its own game entails risks. Even in state legislatures that might seem a sure bet to pass pro-choice laws, a strong counterpush by the anti-abortion minority could mean unforeseen and undesired compromises.
``Unless we have a strong majority in both houses, we run the risk of damaging our own cause,'' says Kate Michelman, executive director of the National Abortion Rights Action League (NARAL). ``So a better strategy for a while is to hold the line, because we still have Roe - or at least what's left of it.''
A NARAL analysis prior to yesterday's elections showed that in 25 states, both houses of the legislature are anti-abortion, 11 favor abortion rights, and the rest are either split or too close to call. Of the 11 that are pro-abortion-rights, Ms. Michelman says only two were strong enough for legislation designed to codify Roe: Connecticut and New Hampshire.
Both NARAL and NOW are focusing on state legislative races to get as many pro-abortion-rights candidates elected as possible. After targeting Pennsylvania, NOW is planning a special push to elect pro-choice women in Louisiana, which will hold state elections next year. Regardless of how the debate shapes up in the new state legislatures, the new US Congress, and the new Supreme Court, everyone agrees on one thing: The end of the abortion battle is not in sight. Says Burke Balch of NRLC, ``This will go well into the 21st century.'' The National Issues Forums engages communities in debate about public issues. NIF then relays the outcome of these local discussions to national leaders.