New Push Likely for Restrictions Over Abortions
DENVER, April 19 — Both sides of the abortion debate expect a new push for restrictions as state lawmakers around the country digest the implications of the Supreme Court decision Wednesday upholding a federal ban on a type of abortion.
But such legislation could face headwinds in states where voters in the last election sent large numbers of Democrats — many of them abortion rights advocates — into office for the first time.
Seventeen houses or senates in the states shifted position on abortion after the November elections — 15 toward more abortion rights and 2 toward greater restrictions — according to an analysis by Naral Pro-Choice America. The group says six new governors supporting abortion rights were elected, compared with one who had voiced strong views against abortion.
“Something this drastic is going to energize both sides,” said Katherine Grainger, the director of the state program at the Center for Reproductive Rights, an abortion rights legal advocacy group based in New York. The organization represented some of the doctors involved in the Supreme Court case decided Wednesday.
The reasoning of both the court’s majority opinion upholding the restrictions and the dissent gave encouragement to opponents of abortion. The ruling, they said, will bolster their argument that the issues raised by abortion — among them defining fully informed consent by women who want to end pregnancies and the question of when a fetus feels pain — are legitimate topics for state legislation.
“The case does not give us a new issue, it reinforces the issue and gives us an opportunity to use it,” said Mary S. Balch, the director of for state legislation at the National Right to Life Committee.
Ms. Balch and other legislative experts said that North Dakota, Missouri, Georgia, South Carolina, Texas and Alabama, where legislators are still meeting and anti-abortion legislation is on the table, were probably the places to watch for now.
Only hours after the Supreme Court’s ruling, a lawmaker in Alabama introduced a measure that would ban almost all abortions in the state. Most states have adjourned their legislatures for the year or passed the deadline for introducing new bills.
Some scholars of the abortion debate say that all the tilting and jousting of politics and the technical legal issues raised by the Supreme Court in upholding, by a 5-to-4 vote, the federal Partial-Birth Abortion Act are beside the point.
What the court really did, said Anne Hendershott, a professor of sociology at the University of San Diego, was reframe the debate about how abortion should be discussed.
The court did not talk about big concepts and issues like privacy, but about the small, gripping details of how abortion works, said Professor Hendershott, author of “The Politics of Abortion” (Encounter, 2006).
Focusing on such details, she said, is how so-called “incrementalists” are trying to chip away at the availability of abortion. These opponents try to make women, doctors and other health professionals talk more, in some cases a lot more, about the actual consequences and mechanics of abortion.
With the court’s ruling and the new fuel it gives to the strategy of encouraging those discussions, Professor Hendershott said, the incrementalists have won the debate — if not over abortion, then at least over how to fight it.
“This case changes the conversation,” she said. “The battle between the incrementalists and those who wanted a constitutional amendment was won by the incrementalists.”
Some lawmakers who are backing anti-abortion bills in their states said the ruling helped them by declaring that some specific restrictions are constitutional. The Supreme Court has never before upheld a ban on a specific kind of abortion.
The emphasis in the court’s ruling was also much less on the health or well-being of the pregnant woman, but on the risks and consequences of an abortion to her and her fetus. This makes discussion of an abortion’s potentially negative consequences easier, the lawmakers said.
“It certainly doesn’t hurt,” said James Mills, a Republican state representative from Gainesville, Ga. Mr. Mills is the chief sponsor of a bill in the Legislature that would require doctors to offer patients seeking abortions the choice of viewing an ultrasound image of the fetus.
In South Carolina, lawmakers are also debating a law involving ultrasound. One approach would have required a woman to view the ultrasound image of her fetus before the abortion could be performed. The other says the option must be offered to the woman by her doctor.
State Senator Kevin Bryant, a Republican from Anderson and a sponsor of one of the bills, said abortions of the sort addressed by the Supreme Court were already illegal in South Carolina. But Mr. Bryant said the ruling could provide some momentum to other restrictions.
“We may also look down the road and end up seeing some other procedures that should be restricted too,” he said. “We don’t want to do too much at one time.”
Legislators in North Dakota are looking at legislation that would immediately ban abortion statewide if Roe v. Wade, the 1973 Supreme Court case that made abortion legal, is overturned.
The Mississippi Legislature passed just such a bill earlier this year, banning nearly all abortions if the ruling is overturned. The law was signed Thursday by Gov. Haley Barbour, a Republican.
But some winds are blowing the other way.
In Oklahoma, the Democratic governor, Brad Henry, vetoed legislation Wednesday that would ban state facilities and workers from performing abortions except to save the life of the pregnant woman. Mr. Henry, who has supported some restrictions on abortion in the past, said the bill went too far. Supporters of the bill, which passed overwhelmingly in both houses, hope to override the veto.
Last month, Gov. Dave Freudenthal of Wyoming, a Democrat, vetoed a bill that would have created a new category of homicide if a pregnant woman was murdered and her unborn fetus died. Mr. Freudenthal said in his veto message that he thought the bill was probably unconstitutional.
Gov. Eliot Spitzer of New York, a Democrat, told an abortion rights group Thursday that he would fight to keep abortion legal in his state.
Some opponents of abortion said that, until the Supreme Court’s ruling, this had not been a particularly good year for their cause.
In part this may have been because of the changed composition in state legislatures and in part because of what many politicians saw as a backlash when South Dakota tried to ban most abortions last year. The Legislature passed a sweeping ban, only to see the public repeal it in a statewide referendum.
“This particular legislative session was a tough year for us,” said Ms. Balch of the National Right to Life Committee. “We had some victories, but we would have liked more.”
She said lawmakers in South Dakota seemed to be taking a year off after last year’s defeat. Virginia, often a hotbed of anti-abortion discussion, has been quiet too, she said.