| USA Today, April 16, 2006
'Roe v. Wade':
The divided states of America
Author: Susan Page
COLUMBUS, Ohio — Two hours after South Dakota
Gov. Mike Rounds signed an abortion ban last
month, NARAL Pro-Choice America blasted an
e-mail to its supporters: "Is your state
next?"
The South Dakota legislation and the abortion
rights group's warning are early skirmishes
in a battle over what states would do if the
landmark Roe v. Wade decision were overturned
— though both sides concede that may never
happen.
If it does, a fight that for three decades has
focused on nine members of the Supreme Court
would be waged instead among more than 7,000
legislators in 50 state capitals.
"Now is the time to get moving on this in
Ohio," says Tom Brinkman, a state legislator
who has introduced a bill to ban almost all
abortions. Meanwhile, Kellie Copeland of NARAL
Pro-Choice Ohio is braced. "Our supporters
feel the fight is coming back to the states,"
she says.
What would states do?
Ultimately, that would depend on factors ranging
from who was governor to where public opinion
stood. Even so, there are clues from what state
legislatures have chosen to do already and
what they're considering doing next.
For instance, four states have passed "trigger"
bans on abortion that would go into effect
immediately if Roe were reversed. Six other
states have passed laws that would automatically
protect access to abortion. Three states have
enacted all 11 of the current restrictions
on abortion tracked by the non-profit Alan
Guttmacher Institute, from requiring waiting
periods to limiting abortion coverage in insurance
plans. One state, Vermont, hasn't passed any
restriction.
USA TODAY used the Guttmacher data and other
factors to calculate how states would be likely
to respond if Roe were reversed. The 1973 decision
recognized access to abortion as part of a
constitutional right to privacy and limited
states' ability to restrict it.
The conclusions:
•Twenty-two state legislatures are likely
to impose significant new restrictions on abortion.
They include nearly every state in the South
and a swath of big states across the industrial
Rust Belt, from Pennsylvania to Ohio and Michigan.
These states have enacted most of the abortion
restrictions now allowed.
Nine states are considering bans similar to the
one passed in South Dakota — it's scheduled
to go into effect July 1 — and four states
are debating restrictions that would be triggered
if the Supreme Court overturned Roe.
•Sixteen state legislatures are likely to
continue current access to abortion. They include
every state on the West Coast and almost every
state in the Northeast. A half-dozen already
have passed laws that specifically protect
abortion rights. Most of the states in this
group have enacted fewer than half of the abortion
restrictions now available to states.
•Twelve states fall into a middle ground
between those two categories. About half are
in the Midwest, the rest scattered from Arizona
to Rhode Island.
The result, according to this analysis, would
be less a patchwork of laws than broad regional
divisions that generally reinforce the nation's
political split. All but three of the states
likely to significantly restrict abortions
voted for President Bush in 2004. All but four
of the states likely to maintain access to
abortion voted for Democrat John Kerry.
The 22 states likely to enact new restrictions
include 50% of the U.S. population and accounted
for 37% of the abortions performed in 2000,
the latest year for which complete data were
available.
The 16 states likely to protect access to abortion
include 35% of the U.S. population and accounted
for 48% of the abortions performed.
Other factors to weigh
There are some factors that this analysis doesn't
take into account.
Among the states ranked as likely to enact new
restrictions, Michigan and Wisconsin now have
governors who support abortion rights and presumably
would veto a ban if they were still in office.
Courts in Florida and Tennessee have ruled
that their state constitutions protect abortion
rights, limiting the impact of Roe's reversal.
(That's not necessarily an insurmountable hurdle,
though: Florida voters amended the state constitution
in 2004 to allow a law requiring minors seeking
abortions to notify their parents, and Tennessee
activists are pursuing a constitutional amendment
to limit abortion rights there.)
The states ranked as likely to continue current
access to abortion could be pre-empted if Congress
passed laws that restricted or criminalized
abortion nationwide.
And first things first: Reversing Roe may be
a more distant prospect than activists in both
camps think. It would require a change of heart
or retirement by at least one of the five current
Supreme Court justices who have endorsed it.
What's more, while the confirmation of two new
justices has heartened abortion foes, neither
Chief Justice John Roberts nor Justice Samuel
Alito has said clearly where he stands on Roe.
In Ohio, Brinkman, a three-term legislator and
father of six, acknowledges that he may be
rushing things with the bill he has submitted
to ban all abortions in the state except those
necessary to save the life of the woman.
But the 48-year-old Republican, who owns a small
printing firm in suburban Cincinnati, predicts
it's just a matter of time. "It will happen,"
he declares in an interview just off the floor
of the ornate House chamber.
Copeland says Brinkman and other abortion opponents
"feel emboldened" by the latest appointments
to the U.S. Supreme Court. "We're going
to be fighting more and more bills," she
says.
Going beyond current law
Ohio already has done nearly all it can to restrict
abortions. The state requires women seeking
abortions to be told about alternatives and
then to wait at least 24 hours. Hospitals and
doctors can refuse to perform them. Minors
must get a parent's consent. A controversial
late-term procedure that opponents call "partial-birth
abortion" is barred.
Brinkman's bill would go much further. It would
make performing an abortion or transporting
a woman across state lines to have an abortion
a felony.
Another proposal, sponsored by Rep. Michelle
Schneider, also a Republican, would ban abortions
at state-funded hospitals and by public employees
except those needed to save the life of the
mother or mandated by the federal Medicaid
program. It would declare that "the public
policy of the state of Ohio (is) to prefer
childbirth over abortion to the extent that
is constitutionally permissible."
"It's not the golden ring that a lot of
the anti-abortion people want," concedes
Schneider, who owns a nursing home and home
health care business in the Cincinnati suburb
of Madeira. She supports Brinkman's ban but
says she worries that it "could take years
and years" to test in the courts.
"My bill would take the state of Ohio out
of the abortion business" right now, she
says.
There's no guarantee that the Legislature will
vote on either measure this year. Ohio Republicans
already are navigating difficult waters. Gov.
Bob Taft is retiring after being convicted
of ethics charges. U.S. Sen. Mike DeWine faces
a tough re-election fight. U.S. Rep. Bob Ney
is enmeshed in the investigation into disgraced
lobbyist Jack Abramoff, although Ney denies
wrongdoing.
Some of his fellow Republican officials worry
that a debate over abortion could provoke a
backlash among moderate voters, Brinkman acknowledges.
John Green, a political scientist at the University
of Akron, agrees. "A lot of Republicans
think there's enough controversy on the table
anyway, without having to add the abortion
issue," he says.
Still, Brinkman boasts that a hearing finally
has been scheduled on his bill for early next
month, and he notes that the Assembly plans
a lame-duck session after the November elections.
If a Democrat is elected governor, the Republican-controlled
Legislature might rush to enact legislation
that Taft can sign before leaving office.
"We could have a substantial lame-duck session
— more substantial if a Democrat governor
got elected," Brinkman says.
Either bill would have some prospect of passing.
House Democratic leader Joyce Beatty, 56, a small-business
owner from Columbus who has been a chief statehouse
defender of abortion rights, says flatly: "If
we voted on this tomorrow in this House, I
would lose." She estimates that one-third
of her fellow Democrats join nearly all Republican
legislators in opposing abortion.
Promises, but no guarantees
In fact, 63 of the 99 members of the Ohio House
are committed, if Roe is overturned, to support
a state ban on abortions except those needed
to save the life of the woman. (Seven members
add exceptions in cases of rape and incest.)
Their pledges are posted on the website of
Ohio Right to Life, which conducted a candidates'
survey during the 2004 campaign.
Even that is no guarantee, says Denise Mackura,
director of governmental relations for the
anti-abortion group. "What candidates
say in their surveys sometimes doesn't come
to pass," she says. "People who said
they were pro-life as a matter of expediency
— I'd like to think they're not many,
but that would be naïve."
Both sides are now mustering volunteers for post-Roe
battles. NARAL Pro-Choice Ohio works out of
a cramped bay-window office in a historic neighborhood
a mile from the state Capitol in the center
of the city. Ohio Right to Life fills a warren
of offices on the second floor of a nondescript
office building at the outskirts of town.
Mackura, 54, a lawyer by training who has been
working in the anti-abortion movement since
her college days, says her group already has
supporters lined up in every district, ready
to hold state legislators to their campaign
promises.
Copeland, 36, a former organizer for the AFL-CIO,
hopes the intense debate sure to be sparked
if a state ban was a legal possibility, not
a hypothetical question, would persuade some
legislators to change their minds.
She notes that the Roe decision consistently
commands majority support in public opinion
surveys. The USA TODAY/CNN/Gallup Poll in January
found that Americans backed it by 66%-25%.
In the survey, 53% said they considered themselves
"pro-choice" and 42% said they were
"pro-life," a breakdown that has
stayed about the same for a decade.
In a USA TODAY poll last month, six of 10 Americans
opposed statewide bans on abortion; 36% supported
them.
'A little bit of encouragement'
There wasn't much difference on that issue by
gender or age, but there was by political party.
A ban that would permit abortions only to save
the life of the mother was supported by 54%
of Republicans but opposed by 66% of Democrats
and 70% of independents.
That's one reason some anti-abortion leaders
are leery of moving too quickly to push broad
restrictions.
"We still need to change the culture,"
Mackura says, and she cautions against assuming
that Roe is history. Ohio Right to Life supports
Brinkman's goal but hasn't endorsed his bill.
"Sometimes when you get a little bit of
encouragement you get very excited and you
think, 'This is the time to do it,' "
only to be disappointed, she says.
In contrast, groups on the other side of the
issue are using the prospect of battles in
state capitals to rouse those who support abortion
rights but haven't seen the issue as a priority.
Nancy Keenan, president of NARAL Pro-Choice
America, says half of the first 900 contributions
from the South Dakota appeal came from people
who hadn't contributed to the group before.
Determining abortion restrictions state-by-state
only makes sense to Dorothy Timbs, legislative
counsel for the department of state legislation
at National Right to Life.
"Obviously the issue would return back to
the states to decide for themselves,"
she says. "We believe an issue as sensitive
as abortion, that affects so many women and
their children, should be up to their legislators
who are accountable to the people."
Nancy Northrup, president of the Center for Reproductive
Rights, protests that overturning Roe would
make access to a fundamental right dependent
on geography. She predicts it will inflame
what is already one of the most divisive issues
in American politics. "It is going to
make abortion the center of every local race
for office, every state legislative race, of
every state judicial race, of every state executive
race, not to mention a battle for federal elections,"
she says. "It will be a never-ending battle."
Contributing: Paul Overberg
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