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Abortion Wars Return


At a meeting last month, Thomas McClusky, the chief lobbyist for the Family Research Council, was in a celebratory mood.

Just days after the Supreme Court issued a 5-4 ruling [PDF] on April 18 upholding the federal Partial-Birth Abortion Ban Act, the council’s vice president of government affairs was talking shop with jubilant fellow social conservatives from such groups as Concerned Women for America, the Eagle Forum, the National Right to Life Committee, and the Ethics and Religious Liberty Commission.

McClusky and his anti-abortion allies were planning the next moves in their three-decades-long campaign to chip away at the landmark 1973 Roe v. Wade decision, which established a woman’s right to an abortion. Now, for the first time, the Court, led by a conservative majority, had upheld an abortion restriction that does not contain an exception for the health of the woman. (It does allow an exception to save the woman’s life.)

To McClusky, the ruling “gives us a great chance to educate folks on the meaning of Roe.” To Wendy Wright, president of Concerned Women for America, the decision was a victory for women. How so? Because, she says, the Court majority declared that deciding whether to have an abortion is so emotionally wrenching that doctors often won’t disclose to a woman the details of the procedure.

“We are glad to see that the Supreme Court acknowledged that abortion can be quite harmful to women,” Wright says. Activists plan to push for “more-aggressive regulation of abortion” in a variety of states, adds Clarke Forsythe, president of the public-interest law firm Americans United for Life, based in Chicago.

After years of seeing courts reject their arguments, abortion opponents say they now have the green light to press state legislatures to pass more-restrictive laws. One proposal, for example, would mandate an ultrasound of the fetus as part of the abortion-counseling process. Another would require providers to advise a woman that she faces increased physical and mental health risks from an abortion and that a fetus feels pain at 20 weeks.

As elated as social conservatives are about the ruling in Gonzales v. Carhart, you would think that abortion-rights groups are in a funk. However, organizations on the left, from NARAL Pro-Choice America to the National Women’s Political Caucus to Planned Parenthood, say they are pumped up, too. In the rulings’s aftermath, they are rallying their members, raising money, and pressing Democratic allies on Capitol Hill — and those running for president — to keep the abortion controversy at the center of the political discussion.

On May 15, Planned Parenthood held a rally outside the hall in South Carolina where GOP presidential candidates were holding a debate. Chanting and carrying signs, the activists called on Republicans to support “women’s health and reproductive rights.”

Abortion-rights advocates insist that momentum is swinging back their way. Democrats are running Congress, the top Democratic presidential contenders staunchly support abortion rights, and the current leading Republican candidate, former New York City Mayor Rudy Giuliani, has expressed support for upholding Roe and a woman’s right to choose.

Each side argues with equal fervor that the Supreme Court ruling will ignite support for its cause. “I think most Americans will say, ‘Oh, my God, what do you mean we shouldn’t consider a woman’s health?’ ” says Nancy Keenan, president of NARAL Pro-Choice America, one of the largest abortion-rights advocacy groups. Jim Backlin, vice president for legislative affairs at the Christian Coalition of America, counters, “This probably will set off the biggest battle over abortion since the 1980s.”

Probably so. With each camp in full battle mode, spending on lobbying, advocacy, grassroots efforts, advertising, and campaign donations is sure to be heftier than was planned before the Court ruling altered the policy landscape.

“I think there had been some sense that the social issues would be on the back burner in this election and that the main focus would be more on the Iraq war, health care, and the environment,” Leon Panetta, former White House chief of staff under President Clinton, said in an interview with National Journal. “But what the [Supreme Court] decision did was to essentially push the abortion issue back into one of the top issues that candidates are going to be asked about.”

However, as combatants maneuver for advantage, they will have to tread carefully. Polling data show that the majority of Americans are somewhere in the middle on the abortion question. In a May 10-13 Gallup Poll, 53 percent of respondents said they don’t want to see Roe overturned, while 35 percent do.

But those numbers mask subtleties on how people feel about the issue. In various polls over the past three decades, about 60 percent of the population has consistently said it would support some restrictions on abortion, according to David Masci, a senior research fellow at the Pew Forum on Religion and Public Life. “This is a tough issue for most Americans,” Masci says. “People are more nuanced than the polls show. I think while most people have moral concerns about abortion, they don’t want to eliminate the option, either.”

Wake-Up Call
In the week after the Court’s decision, activity doubled on NARAL’s Web site, while Planned Parenthood received 60,000 e-mails from its members expressing support for abortion rights. Each organization says it has recorded about $100,000 in unsolicited donations as a result of the ruling. Even more significant for their cause than money and activity, the groups say, is the ruling’s dismissal of a health exception: It provides a clear warning to voters who support abortion rights.

Because Roe has survived repeated court challenges over the past 34 years, convincing the public of a continuing threat to the ruling’s legal rights has been a major challenge for abortion-rights groups.

“There has been a sense of complacency that nothing is really going to get undone here,” says Jill June, president of Planned Parenthood of Greater Iowa. “I think a lot of people thought, abortion is legal and we can count on that remaining, and so the election results may not have significant consequences. Now [the April decision] helps connect the dots with voters.”

“I don’t think there were many in this movement who expected a full-frontal elimination of the health exception,” NARAL’s Keenan says.

As the 2004 presidential campaign heated up just months after a then-Republican-controlled Congress passed the “partial-birth” abortion ban, NARAL and its allies poured millions of dollars into television ads and get-out-the-vote efforts with the message that President Bush’s re-election could result in the naming of Supreme Court justices inclined to overturn Roe, or at least whittle it back.

The slim majority on the Court in favor of upholding the “partial-birth” abortion ban includes both of Bush’s appointees — Chief Justice John Roberts and Justice Samuel Alito.

Now abortion-rights supporters are rallying around federal and state versions of the Freedom of Choice Act and are asking candidates to support the legislation. The bill, enacted in seven states, enshrines Roe into state law and would block further abortion restrictions. To avoid duplication of resources, the organizations are planning a coordinated strategy for the 2008 election campaign: Each group will focus on the states and congressional districts where it shows the greatest strength.

After Republicans took control of Congress in 1995, one of the first pieces of legislation it enacted was the ban on “partial-birth” abortion. Abortion-rights advocates found themselves defending a disturbing method for ending a pregnancy, which involves partially removing the fetus and then crushing its skull. President Clinton twice vetoed the Republican bill, but President Bush signed it into law in 2003.

In 2003, the latest year for which data are available, about 1.29 million abortions were performed in the United States, down from a peak of 1.6 million in 1990, according to the Guttmacher Institute, a reproductive health think tank. Of that total, about 2,200 fetuses were aborted through dilation and extraction (the medical terminology for the procedure), which is performed in the mid-to-late term of a pregnancy.

Beginning in the 1990s, abortion opponents dubbed the procedure “partial-birth” and “infanticide,” and much of the public agreed. Gallup said in its May poll that 72 percent of those surveyed believe that “partial-birth” abortions should be banned.

Focusing on the procedure, however uncommon it may be, “was part of a strategy to talk about abortion in its most unattractive light,” says Reva Siegel, a law professor at Yale University. Jon O’Brien, president of Catholics for a Free Choice, says, “The anti-choice lobby framed their issues around one procedure, and it worked very well for them.”

In the recent Supreme Court ruling, the majority wrote that it was “self-evident” that some women come to regret “partial-birth” abortion because of its gruesome nature, and that therefore the state has an interest in encouraging women not to make “so grave a choice.”

Talcott Camp, deputy director of the American Civil Liberties Union’s reproductive freedom project, says that the Supreme Court decision is telling women, in effect, that they can’t make health decisions for themselves, and that the government, rather than a doctor, can determine what is best for a patient.

Women’s rights groups strongly oppose efforts to compel women to hear about mental and physical health risks from abortion because of the implication that “women need to be protected from themselves,” says Kim Gandy, president of the National Organization for Women. Commenting on the issue of government intervening to tell a woman what is best for her, Supreme Court Justice Ruth Bader Ginsburg wrote in her dissent in the Gonzales decision: “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution.”

Focusing on States
Abortion opponents say a key message they are taking from the ruling is to focus on winning legislative battles in state capitols. Attorneys for anti-abortion groups say that the decision offers new opportunities to chip away at Roe, and activists plan to push for bans on late-term abortion procedures in at least half the states.

Anti-abortion groups are also pressing state lawmakers to pass regulations on parental consent, physician counseling, and mandatory waiting periods before having an abortion.

The decision “sets a precedent for all states to regulate and challenge Roe,” says Allen Unruh, co-founder of the Abstinence Clearinghouse.

Forsythe of Americans United for Life says that the high court ruling brought balance to the federal-state system, restoring the precedent toward deference to state legislatures and reinforcing the notion that the state has a role in setting informed-consent regulations.

Cathy Ruse, a senior fellow for legal studies with the Family Research Council, is helping state legislators draft bills that mimic the federal ban on “partial-birth” abortion. Attorneys are advising states to pass their own versions of the ban so they can tailor penalties to state rules. At least 31 states are likely to revive “partial-birth” abortion prohibitions that had been approved but were blocked by the courts, observers say.

The emphasis on the negative mental health aspects of abortion — underscored in the majority opinion written by Justice Anthony Kennedy — is a growing part of the anti-abortion campaign. Though the argument that abortion causes mental health problems has been around since the 1980s, it has only recently become a widespread theme in the anti-abortion community. Hundreds of women have asserted to anti-abortion groups that they were coerced by boyfriends, husbands, or doctors into having an abortion and that the experience has caused serious mental health problems such as depression and attempted suicide.

And abortion opponents point to dozens of studies conducted by physicians and researchers over the past 20 years cataloging post-abortion trauma. South Dakota based its ban on nearly all abortions (a law that was overturned by a ballot measure in November) on the argument that abortion can harm women. The American Psychological Association and other authoritative nonpartisan groups have concluded that abortion poses no greater risks than does carrying an unwanted pregnancy to term.

“A combination of emphasizing harm to women and fetal pain” could make a difference in helping abortion opponents turn the public against Roe, says the Christian Coalition’s Backlin.

As much as anything else, some social conservatives say, the ruling underscores the need to keep pressing Republican presidential candidates on the abortion question. “Having two new faces on the Supreme Court [Alito and Roberts] shows us the difference that having good judges can make,” says Wright of Concerned Women for America.

Deal Hudson, who handled outreach to Catholics in 2004 for the Republican National Committee, believes that the ruling will help to prevent the GOP from taking its social-conservative base for granted. “The question is, will Republicans continue to treat social conservatives as an important part of the coalition?” Hudson says. “It is very important that the GOP renew its support of social and religious conservatives, or we’ll see the next set of justices back where we were before Alito and Roberts.”

Kim Lehman, president of the Iowa Right to Life Committee, says, “People are tired of voting for candidates that say they are going to do something but don’t.” She says that abortion opponents will be pressing both Sen. John McCain, R-Ariz., and former Massachusetts Gov. Mitt Romney to specify what kind of Supreme Court justices they would nominate if elected.

Backlin says that a Giuliani nomination will be the kiss of death for Republican chances to keep the White House. “It will be like 1976 all over again, when pro-family people deserted the Republican Party by the millions” as incumbent Gerald Ford won the GOP nomination over Ronald Reagan, Backlin says. Focus on the Family leader James Dobson, a prominent conservative, has said he would not vote for Giuliani if he is the nominee.

“Right now, killing terrorists seems to be more important than being pro-life among Republicans,” adds a Republican strategist.

Search for Common Ground
In the wake of the high court ruling, abortion-rights groups are hopeful that Democrats can move the policy debate away from abortion alone and into a broader discussion of reproductive health. From 1995 to 2006, the GOP majority on Capitol Hill passed dozens of bills championed by the anti-abortion community, including cutting money for family planning and sex education, new restrictions on abortion clinics, and increases in aid for abstinence-only programs.

“Whoever frames the question very often wins the argument,” says O’Brien of Catholics for a Free Choice.

Among the top legislative priorities of Senate Democrats is the Prevention First Act, co-sponsored by Majority Leader Harry Reid of Nevada and Sen. Hillary Rodham Clinton of New York, which would increase federal funding for family-planning programs, promote sex education, and make contraception more widely available.

NARAL and other abortion-rights groups worked closely with Reid to develop the bill, which was first introduced in 2004 but went nowhere under the Republicans.

The emphasis on “prevention” is a relatively new approach by the abortion-rights community to address the wish among a majority of Americans for a middle-ground solution. “We were looking for a change in the tone of the debate,” says NARAL spokesman Ted Miller. “We said to the pro-life community, ‘OK, we are never going to agree on abortion, but let’s see if you are interested in reducing unintended pregnancies. Come join us for a commonsense discussion.’ ”

Efforts to find common ground have also led Reps. Tim Ryan, D-Ohio, who opposes abortion, and Rosa DeLauro, D-Conn., an abortion-rights advocate, to introduce the Reducing the Need for Abortion and Supporting Parents Act. The bill would provide federal support for sex and family education, and tax breaks for adoption and other measures to help women who decide to continue their pregnancies.

“The [Ryan-DeLauro] bill represents a great opportunity to plow new ground and forever bury this wedge issue,” says former Rep. Tim Roemer, D-Ind., an abortion opponent, whose personal position on the issue cost him a chance to run the Democratic National Committee in 2005.

A Democratic president might get the opportunity to nominate a justice who could halt the Court’s current conservative tilt on abortion. Two of the high court’s strongest supporters of abortion rights are John Paul Stevens, 87, and Ginsburg, who is 74.

There is no significant distinction on the abortion question among the leading Democrats running for president, who sent statements to NARAL affirming their unequivocal support for abortion rights. In talking points, the front-runners — Clinton, Sen. Barack Obama, D-Ill., and former Sen. John Edwards, D-N.C. — also melded the themes of prevention and reducing unwanted pregnancies into their policy statements. This development is a notable shift from previous presidential races, in which candidates focused on talking about a woman’s right to choose rather than about reducing the need for abortion, says Roemer, who is now president of the Center for National Policy.

The Republican contest is a different story. Since the 1980s, the GOP has officially opposed a woman’s right to an abortion. Yet the party’s current front-runners have varying records on the issue. The poll leader, Giuliani, supports abortion rights. Romney was a supporter of abortion rights when he was a governor, but he now says he is opposed. McCain opposes abortion but supports federal funding of embryonic-stem-cell research, a hot-button issue for many of the conservative groups that vehemently oppose abortion.

This moment of uncertainty among Republican candidates has NARAL’s Keenan ready to pounce.

In 2006, NARAL spent $2.5 million on electoral activities. The amount included campaign contributions, TV advertising, voter identification, and polling. In six congressional districts where the anti-abortion candidate had a tight race, NARAL made significant independent expenditures. Five of the NARAL-backed candidates won their contests. Keenan says that pre- and post-election polling results showed that NARAL’s message was influential. “We have a niche here,” she says. “We know how to reach Republican and independent women, and we know how to move them.”

NARAL plans to build on its success by spending $7 million to $8 million on a “protect and elect” campaign strategy to back incumbents in 2008 who won in marginal districts in 2006 and support congressional challengers. Even with Democrats in charge, there are more “anti-choice” or “mixed-choice” House and Senate members than there are “pro-choice” members, and NARAL wants to shrink that gap.

No heavy hitters among the political players in the anti-abortion community are talking about their strategy for 2008. In the 2006 election, the Christian Coalition, Concerned Women for America, the Family Research Council, and the National Right to Life Committee spent millions of dollars on get-out-the-vote efforts and creating voter guides to motivate their members to go to the polls. The Christian Coalition also worked with Priests for Life on “registration Sundays” at churches to keep congregations focused on the election.

Backlin says that the current effort involves grassroots campaigns to motivate supporters to carry momentum from the Supreme Court decision into battles in state legislatures. If there is an anti-abortion candidate to support in the presidential election, Backlin says, “I am sure our people would fight really hard in the trenches for that person.”

This article was originally published in the 29 May 2007 edition of the National Journal.


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