Following the Beat of the Ban
After a loss in South Dakota, many in the anti-abortion movement reassess their legal strategy
Posted Feb 21, 2007 2:53 AM CST
By Mark Hansen
Some anti-abortion activists believe that a complete and total ban on abortion is the only way to go. To do anything less, they say, is to countenance the killing of one unborn child to save the life of another.
“We’ve got to be consistent,” says David Bereit, executive director of American Life League, an anti abortion group based in Stafford, Va., outside of Washington, D.C. Bereit likens abortion to slavery: “If abortion is wrong, it’s wrong in all cases.”
Other anti abortion activists say they are no less committed to the cause. But they contend that the push for a total ban on abortion, while well intentioned, is unrealistic and may even be counterproductive.
Clarke Forsythe, a senior lawyer at the Chicago based anti abortion law firm Americans United for Life, wrote in 2004 that such efforts are not only destined to fail but will serve only “to divide friendly forces, waste precious resources, and undermine the credibility and political survival of pro life legislators in the states that consider them.”
When he wrote those words, Forsythe was responding to reports of plans afoot in some states to introduce legislation that would outlaw abortion outright. But he may as well have been talking about South Dakota today.
South Dakota lawmakers enacted a near total ban on abortion last year. Abortion rights activists then mounted a successful petition drive to force the issue to a popular vote. A costly and bitter campaign ensued. The law was repealed by a wide margin in a Nov. 7 referendum.
Finding Their Way
In the wake of the South Dakota vote, many in the anti-abortion community have been debating and questioning the legal strategy. They also are debating which direction to go in. Some prefer a full frontal attack on abortion, while others insist on a more methodical approach.
In the process, anti-abortion activists are surveying the legal landscape--especially the makeup of the U.S. Supreme Court--before taking the next step.
(In a separate case this term, the Supreme Court is considering a federal ban on what has been termed “partial-birth-abortion.” See “Seeking a Partial Win,” page 36.)
Forsythe and other like minded anti abortion activists have long maintained that Roe v. Wade, the court’s landmark 1973 ruling finding a constitutional right to abortion, cannot successfully be challenged until the composition of the court changes.
In the meantime, he and others argue, the anti-abortion community should be pursuing what they say are more promising strategies--such as laws requiring informed consent and parental notification for minors, new abortion clinic regulations, and bans on public funding. Such strategies can make a difference in reducing the rate of abortions in this country, they say.
Republican state Sen. Brock Greenfield, who serves as state director of the South Dakota Right to Life Committee, acknowledges that the bill’s sponsors knew they were facing a long battle in the courts if the measure ever became law. It was a risk he says they were prepared to take. But it was their intention to ban abortion, he says, not to force a showdown with abortion rights advocates before the high court over Roe v. Wade.
“I’m disappointed to see the bill go down to defeat, but I wouldn’t say I’m demoralized,” he says. “We’re trying to get the pro life message out. And look at all we’ve accomplished.”
However, Greenfield realizes there are two schools of thought about how best to end abortion: the incremental approach, which he likens to “moving the ball slowly down the field,” and the go for broke approach, which he calls the “Hail Mary pass.” He’s heard the arguments on both sides. And he thinks they both make good points.
The current makeup of the Supreme Court was certainly one consideration in the decision whether to proceed with the ban, Greenfield says. Granted, five of the nine justices have consistently voted to uphold Roe. Two have consistently voted to overturn it. And two have never been asked directly to rule on Roe, although their opposition to it might fairly be inferred from their previous writings. But maybe the makeup of the court would change while a challenge to the ban was pending, Greenfield thought. Maybe one of the justices who has supported the Roe decision would have a change of heart. Maybe Justice Anthony M. Kennedy, who has at least “acknowledged the humanity” of the unborn child, Greenfield says. Maybe another member of the Roe majority would finally come around.
On the other hand, Daniel McConchie, vice president and executive director of Americans United for Life, says the firm didn’t agree with the strategy behind the proposed abortion ban in South Dakota. And it’s not just because it doesn’t think there are enough votes on the court to overturn Roe, he says.
According to McConchie, the strategy is built upon two myths. One, that the court can somehow be forced to reconsider its holding in Roe. And two, that it would take an outright ban on abortion for the court to revisit that decision.
To begin with, McConchie says, there have been 11 different attempts to force the court to reconsider Roe since 1992, when the court in another key abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, reaffirmed the essential holding of Roe.
Every attempt has failed, McConchie says. “The court is only going to take the cases it wants to take.”
Moreover, Casey wasn’t about a ban on abortion, McConchie says, but about a provision of the law requiring women to notify their husbands about a decision to seek an abortion--a provision the court struck down. At the same time, the court upheld other provisions of the law, including a requirement that women seeking an abortion be subject to counseling and a mandatory 24-hour waiting period.
And yet, the court used the case not only to reconsider Roe. In the process it changed the constitutional justification on which the right to an abortion had rested--from the trimester framework it laid out in Roe to the “undue burden” standard it adopted in Casey. With the defeat of the South Dakota ban at the polls, McConchie says, there’s a risk that lawmakers there and elsewhere will be less supportive of other anti abortion measures, such as parental notification requirements for minors and mandatory waiting periods, than they otherwise might have been.
The defeat “certainly hasn’t helped matters,” he says. “Will it hinder us from doing other things we want to do? We won’t know that until we see how legislators react when those opportunities arise over the next several months.”
Bereit has heard all those arguments before. But for him, it’s a matter of principle.
“If abortion is wrong, it needs to be abolished, not just reduced,” he says. “And as far as I’m concerned, the destruction of an unborn child is never justifiable.”
Bereit, who not only supported the South Dakota ban but made several trips to the state to campaign on its behalf, admits he’s disappointed at the outcome, although he still found cause for optimism in the results.
“The fact that 44 percent of the electorate voted to ban all abortions is amazing, especially on the first go around,” he says. “To me that’s a very encouraging first effort.”
But Bereit also fears that the outcome of the South Dakota election will have a chilling effect on the passage of anti abortion legislation elsewhere. And it suggests to him that he and other activists still have a lot of work to do to convince people that abortion is never acceptable.
“The bottom line is America’s not yet ready to ban abortion,” he says. “And it’s up to us in the pro life movement to educate America to recognize the brutal reality of abortion and why it must be abolished.”
Pushing for More
Bereit gets no argument from Mark Crutcher, founder and president of a Dallas area anti-abortion organization called Life Dynamics, whose motto is “Pro-life: without compromise, without exception, without apology.”
Crutcher, a longtime veteran of the abortion wars, says the idea of passing laws that cut back on the availability of abortion without banning it outright is not only morally--suspect because it permits the sacrifice of some unborn babies to save others--but also failing.
“The sad fact is we’ve been pursuing this incremental approach [to eliminating abortion] for the past 33 years, and to this day we have not returned one legal protection to one baby in one state,” he says. “All we’ve done is enact measures that regulate the practice of abortion.”
Crutcher, who supported the South Dakota ban but didn’t participate in the campaign, says anti-abortion forces should start following the same no-compromise strategy the abortion rights forces adopted from the very beginning of the abortion wars.
“They fight any kind of restriction or regulation on abortion as if it were a total ban,” he says.
If the anti-abortion movement had forced people to choose between unrestricted abortion on demand throughout pregnancy and a complete ban on abortion, Crutcher says, “we would have won this battle hands down early on.”
Republican South Dakota state Rep. Roger Hunt, chief sponsor of the proposed ban, and Leslee Unruh, a Sioux Falls activist who ran the campaign to uphold it, did not return calls for comment.
For his part, Greenfield points out that polling data prior to last year showed that only 18 percent to 24 percent of the voters supported a total ban on abortion with no exceptions. Yet 44 percent of the electorate voted to keep the ban, which included an exception only when necessary to save the life of the mother.
“I think that shows we’ve made real progress in terms of changing people’s minds,” he says.
Yet, even legal scholars on the abortion rights side have suggested that Roe rests on shaky constitutional ground, Greenfield says, which still gives him cause for optimism to think the authority to regulate abortion will someday be returned to the states. Greenfield acknowledges that some people don’t think the timing is right to seek a ban on abortion. But he asks in return: When is the right time? And he repeats something he heard somebody else say in response to the same suggestion: It’s never the wrong time to do the right thing.
In the end, Greenfield says, both sides have the same goal: to save as many lives as possible. The only question is how. Do they march systematically down the field toward the end zone? Or do they launch the Hail Mary pass and hope everything falls into place?
“Given the nature of the courts, we decided to go for the gusto and hope our Hail Mary pass got caught,” he says of anti abortion legislators. “Unfortunately, it got intercepted instead.”
Greenfield says state lawmakers haven’t had a chance to think about their next move since the election. He says they had planned to regroup to devise a new strategy when the legislature was to reconvene last month. But he insists the anti abortion movement in South Dakota is “alive and well” and “moving forward.”
“I don’t know what the future holds,” he says. “But we’re united, we’ve made some great gains, and we have a much better feeling as to where people’s hearts are and where we failed to get our message across.”
For their part, abortion rights leaders say they have a pretty good idea where the anti abortion forces went wrong in South Dakota.
Jan Nicolay, a former Republican state legislator who led the campaign to repeal the ban, says the measure was simply “too extreme” for voters, even in a state whose population is as conservative and anti abortion as South Dakota’s.
“We’re a pretty independent minded bunch out here,” Nicolay says. “People don’t think the government should be sticking its nose into their personal business.”
She and other abortion rights leaders also say they don’t think anti abortion legislators anticipated having to defend their handiwork in a referendum. Nicolay says lawmakers defeated a proposed amendment that would have submitted the measure to a vote.
Opponents launched a petition drive under an obscure state law that secured more than twice the number of signatures needed to put the issue on the Nov. 7 ballot.
Hoping for a Pause
Nicolay adds that she hopes the measure’s defeat means that lawmakers will turn their attention to other, more important things, like education, health care and economic development. But she’s not optimistic.
“Nothing they do would surprise me,” she says.
Nicolay says she also hopes the defeat of the South Dakota measure will give people in other states where such bans are being considered the courage to stand up and fight for what they believe in.
“Maybe it’ll slow down what’s going on in some of these other places,” she says.
Cathleen M. Mahoney, the legal director of NARAL Pro-Choice America in Washington, D.C., says she would like to believe that the defeat of the South Dakota ban will make anti abortion lawmakers think twice before introducing similar legislation elsewhere. But she says similar bills are already pending in at least two other states, including one in Ohio that would not only ban all abortions but also make it a crime to accompany somebody out of state to have one.
Sarah Stoesz, president and CEO of Planned Parenthood of Minnesota, North Dakota, South Dakota, acknowledges that anti abortion forces, while united in their ultimate goal, are sharply divided over strategy. Political pragmatists have long recognized that they don’t have the votes to overturn Roe, and that the abortion rights majority of Americans won’t stand for an outright ban on abortion. It’s the absolutists, like the American Life League, which backed the South Dakota ban, who won’t be deterred, she says.
Stoesz says the defeat of the South Dakota ban represents an embarrassment for the absolutist branch of the anti abortion movement, even more so because the ban was rejected by a margin of 12 percentage points in a very conservative state.
In fact, Stoesz calls the proposed ban a gift to abortion rights activists from the anti abortion side because it gave them a chance to engage in a serious dialogue with people who identify themselves as anti abortion, but who realize that abortion is not a black and white issue. It also helped abortion rights activists build a grassroots political movement in support of women’s reproductive rights. The reproductive rights movement has relied for many years on a litigation strategy, which has been effective to the extent that it has helped protect women’s legal rights, Stoesz says. But that type of strategy does not create political change.
The South Dakota campaign has made Stoesz realize that women need to build a political movement to protect their reproductive rights. And the proposed ban has given abortion rights activists a cause around which they can organize a political movement. “It’s hard to get people angry over small assaults on our reproductive rights,” she says. “But when the radical anti reproductive rights agenda is laid as bare as it was in South Dakota, even mainstream people who don’t think much about the issue of abortion become angry enough to be come politically active.”
Even the pragmatist branch of the anti-abortion movement--which has been very successful in its efforts over the years to chip away at the availability of abortion--suffered two big setbacks at the ballot box in November, Stoesz says, suggesting that the public may have reached its limit as to how many restrictions on abortion it is willing to stomach. Voters in Oregon and California rejected parental notification laws for minors seeking abortions by identical votes of 54 percent to 46 percent.
Hurting their Chances
Carl Tobias, a constitutional law professor at the University of Richmond who follows abortion litigation, says the push for a near total ban in South Dakota seems to have backfired on the anti abortion movement.
“I think it speaks volumes about the way ordinary citizens feel about this issue,” he says. “It suggests what all the polls show is true: That most people are pro choice.”
Tobias also says the defeat of the South Dakota measure could throw a wet blanket on efforts to outlaw abortion elsewhere. “I think it sends a message that this kind of ban is just too extreme for most people,” he says.
Dawn Johnsen, a constitutional law professor at Indiana University who specializes in reproductive rights, says the anti abortion forces know they don’t have the votes to overturn Roe. They also know that if they bring a challenge to Roe before the court too soon, it could backfire by creating a new precedent that would further cement the right to an abortion into law.
So they have concentrated instead on chipping at the edges of Roe by trying to enact restrictions short of a ban that are quietly calculated to eviscerate the right to an abortion, says Johnsen, a former NARAL legal director. And Casey, by replacing the Roe fundamental rights analysis with what she calls the “mushy” undue burden test, has essentially given them a green light to do so. That effort, which she describes as a “slow, incremental war of attrition,” has been waged with devastating success, according to Johnsen. In the past decade, state legislatures have enacted hundreds of different abortion restrictions short of a ban, many of which have been upheld by the courts under the prevailing undue burden standard.
Such restrictions, combined with clinic violence and harassment, have drastically reduced the number of abortion providers around the country and have made access to the remaining providers exceedingly difficult for growing numbers of women.
What’s more, according to Johnsen, this is all happening without any clear awareness or understanding on most people’s part as to what is actually going on. “I think it’s a real problem that the whole country seems so focused on whether the Supreme Court will overrule Roe, yet seems so totally unaware of this whole underground campaign to eviscerate Roe,” she says.
The defeat of South Dakota’s proposed ban is a victory for the abortion rights community, but a bittersweet one, according to Johnsen, because it wasted a lot of time, energy and resources that could have been put to better use on such things as pregnancy prevention and healthy childbearing programs.
In fact, the defeat of all three anti abortion referendums is a sign that the abortion rights movement can mobilize a grassroots campaign to defend its interests when it has to, Johnsen says. But she also believes the anti abortion movement still has the upper hand when it comes to political organizing.
“I think the pro choice movement is headed in the right direction, but it still has a great deal of work to do,” she says. After all, as Johnsen points out, if there’s anything we’ve learned in the 34 years since Roe v. Wade was decided, it’s that abortion is an issue that’s not going to go away.
Seeking a Partial Win
In 2000, the U.S. Supreme Court struck down a Nebraska law banning “partial birth abortions” on the grounds that it was overly broad and failed to include an exception for the woman’s health. Stenberg v. Carhart, 530 U.S. 914.
Three years later, Congress passed the Partial Birth Abortion Ban Act, a federal version of essentially the same law the court had struck down in Stenberg--except that it intentionally omitted the health exception mandated by Stenberg and substituted legislative “findings of fact” to the effect that the banned procedure is “never necessary” to protect the woman’s health.
Now the court is considering two challenges to the constitutionality of the act, also known as the federal abortion ban. These are arguably the most important abortion cases to come before the court since 1992, when it upheld the core holding of Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833.
The outcome of the cases, Gonzales v. Carhart, No. 05 380, and Gonzales v. Planned Parenthood, No. 05 1382, might be considered an easy call, given the decision in Stenberg, in which the court held that a health exception is required whenever a “significant body of medical opinion” or “substantial medical authority” suggests that a banned abortion procedure may bring with it greater safety for some patients.
Applying the Stenberg standard, all six federal courts that have considered the law to date have found it unconstitutional. In fact, three district court-- in decisions affirmed by three appeals courts--have concluded there is “substantial medical authority” showing that an outright ban on the procedure in question would endanger some women’s health by depriving them of access to the method of abortion safest to them.
But experts say that the fate of these two cases, which were argued Nov. 8, may not be the slam dunk they might first appear to be. That’s because Justice Samuel A. Alito Jr. has replaced former Justice Sandra Day O’Connor, whose concurring opinion in the 5-4 Stenberg decision provided the necessary fifth vote to strike down the Nebraska law. And Justice Anthony M. Kennedy, who dissented from the majority decision in Stenberg, remains a wild card.
The big question now, says Indiana University constitutional law professor Dawn Johnsen, is how a controlling bloc of five justices who either dissented in Stenberg (Justices Kennedy, Antonin Scalia and Clarence Thomas) or likely would have dissented if they had been on the court (Chief Justice John G. Roberts Jr. and Justice Alito) will treat the court’s own recent precedent and Congress’ apparent effort to circumvent it.
“On the one hand, the court may have an institutional interest in standing by its prior decision and protecting its prerogatives against what it likely will see as encroachment by Congress,” Johnsen says, noting that Kennedy, in particular, has been quick to invalidate what he sees as congressional overrides of Supreme Court decisions. “On the other hand, though, is the fact that the Stenberg dissenters--again,especially Kennedy--were particularly fervent in their belief that the Nebraska law should stand,” regardless of what they termed the “marginal” costs to a woman’s safety.
With Alito taking O’Connor’s place, Johnsen says, the court may well have five justices prepared to abandon Stenberg either behind the guise of deference to congressional findings or by overruling the decision outright.
If that happens, she says, it could open the door to future efforts by Congress to circumvent constitutional rights, reproductive or otherwise, with fraudulent findings of fact. Moreover, to the extent the court overrules or undermines Roe, it could also increase the likelihood that the fate of reproductive rights will be determined not by each of the 50 states, but by Congress.
Mark Hansen is a senior writer for the ABA Journal.