Wall Street Journal, March 9, 2006
Abortion Issue Moves to States
Shift on Federal Bench Spurs Governors, Legislators to Battle Roe
Author: DEBORAH SOLOMON
A showdown over abortion rights is heading to the states as some governors and legislators prepare for a challenge to Roe v. Wade.
Earlier this week, South Dakota Gov. Mike Rounds signed legislation banning most abortions, exempting only cases when the mother's life is in danger. Mississippi Gov. Haley Barbour says he will sign such a ban if it also excepts cases of rape and incest. Lawmakers in eight other states are considering similar steps.
Those state officials, like conservative activist groups, are emboldened by a rightward shift throughout the federal bench during the Bush administration. As a result, they show increasing willingness to test the staying power of the Supreme Court's 1973 Roe decision, which placed abortion rights within the Constitution's privacy protections. Its reversal would clear the way for a state-by-state battle over whether, and under what circumstances, abortion could remain legal.
"You're going to see a growing number of states take on the courts," said Tony Perkins, president of the Family Research Council, a voice for religious conservatives. "We see this as an issue that should be decided by the states."
Some states have been preparing for years. At least four, including Louisiana, have so-called trigger laws on the books, which would immediately make abortion illegal if Roe v. Wade is overturned. Four other states are considering such laws.
To be sure, there isn't any guarantee that Roe v. Wade will ever be overturned, and any efforts to undo the law nationally would take years to play out. Six states, including California, have codified Roe, essentially guaranteeing the right to abortion even if Roe is overturned.
South Dakota's law is unlikely to go into effect as scheduled in July, because of legal challenges, which ultimately may come before the Supreme Court.
Many states have restricted access to abortion over the past 33 years through waiting periods, parental consent and strict licensing requirements for providers. Past efforts to ban abortion -- most recently by Utah and Louisiana in 1991 -- have failed in the courts. Now, the effort has renewed momentum. "Legislatures are more conservative, and they hope that a more conservative Supreme Court will uphold more of these laws," says Elizabeth Nash of the Guttmacher Institute, which supports abortion rights.
In Ohio, legislation has been introduced to ban all abortions without any exceptions. In Michigan, efforts are under way to get an abortion-ban ballot initiative before voters in November. In Missouri, the Senate is considering a ban on all abortions except to save the mother's life. Mississippi's House passed an abortion ban with exceptions for rape, incest and the mother's life, and the measure is likely to pass the Senate.
"States are feeling more empowered on this subject," said Republican Mississippi state Sen. Alan Nunnelee, public-health committee chairman. "Traditionally we have just felt restricted by the federal law," he said, but changes on the bench and some recent decisions have heightened the drive to challenge Roe.
The South Dakota debate, in which advocates emphasized their desire to lead the anti-Roe charge, has sparked other states to follow. At least three states introduced legislation after South Dakota's ban; one was Mississippi, where lawmakers amended legislation that began not as a ban but rather as an attempt to require ultrasound screening before an abortion could take place.
"There's definitely a sense of 'me-too,' " says Jackie Payne of Planned Parenthood Federation of America, which plans a lawsuit to block implementation of the South Dakota ban.
Whether their effort will succeed remains unclear. A majority of the Supreme Court's justices are still expected to uphold Roe v. Wade.
The efforts to ban abortion have also galvanized state lobbying campaigns by activists who support abortion rights. In South Dakota, the local chapter of Planned Parenthood ran a newspaper advertisement against the abortion ban.