With the Bush administration's reshaping of the U.S. Supreme Court, legislators in at least five states are proposing bold anti-abortion measures with a goal of challenging Roe v. Wade , the 1973 decision that ensured a woman's right to an abortion.
Despite recent national polls
indicating that a majority of Americans do not want abortion to be outlawed, lawmakers in at least five states — Georgia, Indiana, Ohio, South Dakota and Tennessee -- have offered bills that seek to ban all abortions, except when the woman's life is in danger.
In South Dakota, Rep. Roger Hunt (R), who is sponsoring an abortion ban this session, said in a phone interview that he thinks the time is right to test the high court.
But other abortion foes worry that Hunt and others are moving too quickly. They doubt the high court will rush to overturn Roe v. Wade and warn that preemptive state bans could backfire — provoking judicial retrenchment behind the legal precedent and hindering future state efforts to limit or outlaw abortion.
"I think that it is better policy in January 2006 to be passing legislation that can be enforced and that can protect women and minors from the physical and psychological risks of abortion," such as requirements for parental notification and fetal pain warnings, said Clarke Forsythe, Director of Americans United for Life
South Dakota's Hunt said he's offering his bill now because the state has a pro-life Legislature and governor and because he thinks President Bush's appointment of Chief Justice John Roberts and Judge Samuel Alito could tip the court in favor of allowing states to steer their own course on the abortion issue. The U.S. Senate is expected to vote this week on Alito's confirmation.
"No one has a crystal ball to determine what the court will do, but we have flow and we're building momentum on the abortion issue in South Dakota," he said.
Meanwhile, South Dakota state Sen. Brock Greenville (R) — who said in an interview that he hadn't decided how he would vote on the this year's bill — worries that his colleague's proposal could put the state at risk of losing a court challenge, which he said "could further entrench the Roe decision and require us to pay the legal fees of the ACLU (American Civil Liberties Union) and Planned Parenthood."
"That defeats the purpose, if our state is writing checks to people who are on the opposite side," he said.
Greenville, who is also director of South Dakota Right to Life, said he agrees with the ultimate goal of the proposed ban -- for states to regain the right to outlaw abortion — but he disagrees with the strategy and timing. "It's a matter of two different philosophies on the pro-life side. In my opinion, we don't know enough about the new court," he said.
A similar abortion ban passed the South Dakota Legislature last year, but was vetoed by Gov. Mike Rounds (R) because he said the bill needed to be rewritten to ensure that South Dakota's other abortion laws would not be blocked if the outright ban were challenged in court. Legislators in at least four other states also proposed abortion bans last year, but none were enacted.
If any of the proposed bans were enacted, they would be the first absolute prohibitions to become law since Roe , according to legal experts. In the early 1990s, Utah and Louisiana passed laws banning abortion with a variety of exceptions, but no broad protections for a woman's health. Those laws were struck down by lower courts and the cases were appealed to the Supreme Court, but the panel refused to hear them.
"It's as predictable as the sun rising tomorrow at 7:04" that the proposed bans, if enacted, would be struck down by lower courts, said Forsythe, an anti-abortion activist and a constitutional lawyer. If appealed to the U.S. Supreme Court, it's anyone's guess whether the court would hear the case, he said, noting that justices have refused to hear six appeals of abortion prohibitions in the last 33 years.
Forsythe said that five pro- Roe votes remain on the high court, not counting the two Bush appointees, whose positions on the legality of abortion are unknown. None of the current judges on the nine-member panel were on the court when Roe was decided.
Well-attended nationwide demonstrations on the 33 rd anniversary of the abortion ruling last week show that the intensity of the debate has not waned since 1973, when the high court removed states' authority to outlaw abortion. Prior to the decision, the procedure was illegal in most states, except when a woman's life was in immediate danger.
The bans being offered this session once again would make abortion illegal, except when the woman's life is threatened. The bills do not make an exception for a woman's health.
Since 1973, the high court has permitted state laws that place restrictions on abortions but has repeatedly ruled that no state law may prohibit or delay the procedure if a woman's physical or mental health is at risk.
Consistent with that position, the Roberts Court ruled in January that a New Hampshire statute requiring parental notification before an abortion could be performed must include an exception to protect a woman's health.The court sent the case — Ayotte v. Planned Parenthood -- back to a lower court, allowing the state to revise the law.
Last year, states passed a number of laws aimed at curbing access to abortion by requiring parental notification or consent, additional waiting periods and disclosure of information on fetal pain. States also imposed a variety of restrictions on abortion doctors and clinics or prohibited Medicaid funding for the procedure.
Bolder laws were passed by abortion foes in North Dakota, where the Legislature passed a resolution urging Congress to pass an amendment to the U.S. Constitution that would overturn Roe v. Wade and ban abortion throughout pregnancy; and in South Dakota, where the governor signed a preemptive abortion ban that would take effect in the future, if and when Roe is overturned. This year, Oklahoma lawmakers are considering a similar abortion ban with a contingent effective date.
In all, more than 600 bills limiting abortion were introduced in state legislatures in 2005 and 58 were enacted, double the number in 2004, according to pro-choice advocates NARAL Pro Choice America
. A similar level of state legislative activity is expected to continue this year.