Sizing Up the
Opposing Armies
in the Coming
Abortion Battle
By MONICA DAVEY,
NYTimes on the Web, February 27, 2006
Pierre, S.D. Feb.26 -- 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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