Sizing Up the Opposing Armies in the Coming Abortion Battle
By Monica Davey, The New York Times, February 26, 2006
Beyond the borders of South Dakota and its fewer than 800,000 residents, no one pays much attention to the long list of bills to restrict abortion that the state's legislators ponder nearly every year. But last week, when they passed the most sweeping abortion ban in the country in more than a decade, the reverberations reached far beyond quiet Pierre.
Finally, some abortion opponents happily announced, the chance to overturn Roe v. Wade was close at hand. Presumably, this bill, if signed into law by the governor, would eventually reach a remade, more receptive United States Supreme Court.
But even as abortion opponents declared a "full frontal attack" on Roe, the 1973 decision that found a constitutional right to an abortion, one question emerged: Which side of the abortion battle will benefit? Activists on both sides claim they have the advantage, but they can't both be right.
The South Dakota strategy itself has already splintered the anti-abortion movement. One faction is chafing at the timing of this campaign, wondering aloud whether the court — and, perhaps more important, the American public — will really embrace a complete reversal of Roe just yet.
Some, like Daniel McConchie of Americans United for Life, which did not take part in the South Dakota effort, said they would have preferred to reduce abortions by continuing to press for restrictions like waiting periods, parental and spousal notification laws, and the prohibition of certain types of abortion — quieter measures that draw less attention and strike a less head-on blow to Roe.
"There is tension," Mr. McConchie said, between those who agree with him about abortion but not about strategy. "A lot of those people — what we tend to think of as the purists — in essence think that people who would push a more incremental approach are sellouts. I understand that type of zeal, but there is a severe penalty you can end up paying."
Those who pressed for the chance to overturn Roe said they had seen hints already that the new Supreme Court, with two recent appointments by President Bush, might be open to reconsidering Roe. One such hint, they said, came just last week, when the court announced it would review a challenge to a federal law prohibiting an abortion procedure, what these opponents call partial-birth abortion.
"It's the right thing," said Leslee Unruh, leader of the National Abstinence Clearinghouse. "It's like Martin Luther King's approach — it's never the wrong time to do what's right. South Dakota is in a unique position to do something for the 800 children aborted every year."
But these opponents are also counting on the retirement of Justice John Paul Stevens and the appointment by President Bush of another justice amenable to overturning Roe — all uncertain calculations, Mr. McConchie said. Think of what damage may be done, he said, if the court hears the case, but reaffirms Roe. And, should their forces devote money to this strategy, he asked, over all other efforts?
In some ways, the split mirrors the rift among gay-rights advocates over the question of same-sex marriage. Some gay-rights advocates pressed for marriage as the ultimate goal, while others warned that a slower approach, seeking other legal rights for gay couples, for instance, might stir less fury and be more effective.
As it turned out, after the Massachusetts Supreme Court legalized gay marriage in 2003, the reverberations were fierce. Opponents campaigned in many states for constitutional amendments to bar gay marriage, and in 2004, 11 states passed such amendments.
But even as the anti-abortion forces wrestled with internal division, abortion-rights leaders were repeating their mantra that a challenge to Roe would awaken their complacent supporters and strengthen their side of the national debate.
Representatives from groups like Planned Parenthood Federation of America and Naral Pro-Choice America said they were receiving hundreds of calls and e-mail messages from people around the country.
But a full-fledged national fight over the right to abortion must also be a chilling prospect for abortion-rights advocates.
The legal costs of fighting the South Dakota law in court — as Planned Parenthood has already pledged to do — are certain to be steep, but there could soon be more states with similar laws to fight. Kentucky and Ohio have already considered such measures, and other states might well be emboldened by South Dakota.
"It sounds a very dire signal that states think that they can pass laws that ban abortions and have them upheld by the newly configured Supreme Court," said Eve C. Gartner, a lawyer for Planned Parenthood.
And if, in the end, the Supreme Court were to overturn Roe, the ensuing battle for abortion-rights advocates would be complicated and costly, too.
Separate campaigns would be needed in every state, and even then, some would surely be lost — particularly those in states that already have so-called trigger laws on their books that would make most abortions illegal as soon as Roe is overturned. They include Arkansas, Illinois, Kentucky, Louisiana, Missouri, Montana and South Dakota.
A sense of building momentum — the hints of a more conservative Supreme Court, the loud statement from at least one state legislature, the prospect of a long court fight — could help build steam for abortion opponents. Just as those opposed to gay marriage seemed to draw strength and rising support from their early election victories, those opposed to abortion may see the new political climate as a call to action.
In South Dakota, Gov. Mike Rounds, a Republican who said he is inclined to sign the abortion ban in the coming weeks and send it on to face a lengthy court challenge, acknowledged that it might, at least for this moment, energize some otherwise dormant abortion-rights supporters.
On the other hand, he said, it will also most likely energize another silent group: those at the opposite end of the spectrum, a frustrated segment that had given up on overturning Roe in the blur of passing decades.
"Only time will tell," the governor said.
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