Advocates and politicians who oppose legal abortion often claim they
only want to "send the issue of abortion back to the states," and the
current round of state ballot initiatives reinforces the impression
that this is the case. But this position is a bait-and-switch tactic
that should not be trusted.
Abortion opponents’ unabashed goal is to ban abortion throughout the
country. Their initiatives at the state level are just one part of that
plan. In fact, two of the three measures voters will decide this
Election Day are intended to provide a direct challenge to Roe v. Wade and open the door for a national ban on abortion.
South Dakota’s Measure 11 would ban abortion except in narrow
circumstances, and Colorado’s Amendment 48 would define a fertilized
egg as a person, which would severely restrict access to abortion,
contraception, fertility treatments, and scientific research. In
contrast, California’s Proposition 4 attempts to limit but not ban
abortion by requiring parental notification for minors.
On the surface, these initiatives seem quite different. But while
they represent different strategies–an absolutist versus an
incrementalist approach–they are all linked by a common agenda: to end
legal abortion across America.
California Proposition 4 is endorsed by Americans United for Life,
among others. This is an organization that has worked to slowly erode
women’s access to abortion care with bills that limit available
abortion methods after 12 to 13 weeks of pregnancy; require waiting
periods, biased counseling, and ultrasound viewings prior to an
abortion; create burdensome and medically unnecessary regulations for
abortion clinics; assert that fetuses feel pain during an abortion; and
allow health care employees to refuse to counsel, refer, or treat
patients for any service to which they object.
In other words, Americans United for Life and its allies favor laws
that make it exceptionally hard to get an abortion–through cost,
distance, stigma, and delay–but do not explicitly ban abortion. It is
largely due to such efforts that Mississippi, North Dakota, and South
Dakota now have only one remaining abortion clinic each, that 87
percent of U.S. counties do not have an abortion provider, and that
approximately one-third of low-income women who want an abortion find
themselves forced to carry their pregnancies to term.
Proponents of Colorado Amendment 48 and South Dakota Measure 11, in
contrast, hope that if one of these measures passes, it will be
immediately challenged in court. Their calculation is that by the time
the case reaches the Supreme Court, there will be a majority of
justices willing to overturn Roe.
With the current balance on the Court, that is a somewhat risky
strategy, but nevertheless a real threat. Four justices are firmly
against Roe, but it is not clear if they are all willing to expressly undo the settled precedent. Four justices are firmly in support of Roe,
but some of them may retire soon, and whether their successors agree or
differ with them will largely depend on who the next president is.
The ninth vote–Justice Anthony Kennedy–currently represents the
ideological center of the Court, and it is not easy to predict how he
would rule. Based on the decision he authored in the 2007 case Gonzalez v. Carhart,
it is clear that he harbors significant misgivings about abortion
rights. On the other hand, he did concur in the landmark Planned Parenthood v. Casey decision, a case that both sides thought would mark the end of Roe but instead strongly reaffirmed its core principles.
For these reasons, not all abortion-rights opponents are on board
with the absolutist plan. Many fear it is too soon for the
all-or-nothing approach. They are concerned that if the gamble does not
pay off, the result will be another precedent that affirms the central
holding of Roe, which might make it harder to eventually overturn.
What voters should understand is that, regardless of their various
strategic determinations, the leaders behind these initiatives are all
working with the common goal of undermining Roe in the short
term and reversing it in the long term. They have already achieved too
much of this plan and we should not allow them to go any farther.
Do not be deceived by the promise that the abortion debate will finally quiet down with Roe‘s
demise. Rather than turning attention, for instance, to providing
families with the supports they need to raise healthy children, the
antiabortion movement would launch a 50-state referendum on abortion
coupled with a national campaign to ban it in the U.S. Constitution or
with federal legislation.
The leaders of the movement to outlaw abortion are fully dedicated
to the idea that the right to life–or, more accurately, the right to
birth–is a fundamental right that should be the law of the land, not
just the law in some of the land.
Passing one state initiative will most certainly pave the way for
other rollbacks in the states and eventually nationwide. Unless voters
in South Dakota, Colorado, and California defeat these measures this
Election Day, an abortion ban may be coming soon to a place near you.
This article was first featured on The Huffington Post.