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By Denise M. Burke
More than a year after the U.S. Supreme Court delivered its opinion in Gonzales v. Carhart confirming the constitutionality of the federal ban on partial-birth abortion, the hopes of pro-life advocates and the fears of pro-choice groups have not yet come to pass.
After the April 18, 2007, decision, pro-life groups hoped that more than 30 years of abortion extremism were finally at an end and hoped that the American people, through their elected representatives, were now free to enact more medically appropriate regulation of, and commonsense restrictions on, abortion.
Of course, pro-choice groups and politicians were not similarly exultant. In one public statement after another, they condemned the decision and the court, predicting the outlawing of abortion was at hand and that women were about to become "second-class" citizens.
As a review of the recently completed 2008 state legislative sessions shows, that has not happened.
While several states have introduced abortion bans, the number of states considering complete or near-complete bans on abortion has not significantly increased since the Gonzales decision.
Rather, what has increased is legislation designed to protect women from the negative consequences of abortion. Among these measures are comprehensive informed-consent requirements, stronger parental involvement provisions and requirements that a woman be offered the opportunity to view an ultrasound before an abortion. These protective measures are hardly the draconian threats to women or their health that pro-choice supporters predicted.
A detailed review of this year's legislative activity shows that the most popular state pro-life legislation included:
Abortion bans. These measures included bans on partial-birth abortions, post-viability abortions and sex-selection abortions, as well as comprehensive abortion bans that would take effect upon the reversal of Roe v. Wade.
Parental involvement for abortion. The states were equally divided in considering parental notice and more protective parental consent measures.
Limitations on state taxpayer funding for abortion. These limitations included measures limiting funding of elective abortions for Medicaid recipients, prohibiting the use of taxpayer funds for abortion counseling, and limiting the use of public facilities for the provision of abortions.
A variety of informed-consent enhancements. For example, at least 16 states considered requirements that women be offered the option to undergo and view an ultrasound prior to an abortion.
Similar measures are likely to be popular in 2009, along with legislation strengthening requirements for abortion clinics to report suspected child sexual abuse, providing funding for abortion alternatives and establishing minimum health and safety standards for abortion clinics.
While pro-choice advocates devoted the majority of their legislative efforts to opposing these popular measures, they also instigated attacks on crisis pregnancy centers and sought to expand the availability of abortifacients, including "emergency contraception." Moreover, acknowledging the dwindling numbers of physicians willing to perform abortions, they also introduced measures to allow nurses to perform abortions and to circumvent or limit the ability of individuals and institutions (including Catholic hospitals) to refuse to participate in abortions.
More critically, three states -- Illinois, Minnesota and New York -- introduced state versions of the federal Freedom of Choice Act, a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support, and to prevent states from enacting similar protective measures in the future.
FOCA provides that "every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman."
Co-sponsored by presidential candidate Sen. Barack Obama, D-Ill., it would invalidate any "statute, ordinance, regulation, administrative order, decision, policy, practice or other action" that would "deny or interfere with a woman's right to choose" abortion, or that would "discriminate against the exercise of the right ... in the regulation or provision of benefits, facilities, services or information."
Moreover, FOCA creates a new and dangerously radical "right." It establishes the right to abortion as a "fundamental right," elevating it to the same status as the right to vote and the right to free speech (which, unlike the abortion license, are specifically mentioned in the U.S. Constitution).
Critically, the U.S. Supreme Court has never defined abortion as a fundamental constitutional right. FOCA goes beyond any U.S. Supreme Court decision in enshrining unfettered abortion-on-demand into American law.
In elevating abortion to a fundamental right, FOCA poses an undeniable and irreparable danger to commonsense laws supported by a majority of Americans. Among the state laws that FOCA would nullify are:
Pro-abortion emphasis on sweeping measures to expand the abortion license is likely to increase in 2009.
It is clear that, while the results of the 2008 elections will have an undeniable impact on state legislative prospects and priorities, we are likely to continue to see a high level of interest in abortion-related measures, providing pro-life Americans with a unique opportunity to build a renewed culture of life.
Denise M. Burke is the vice president and legal director for Americans United for Life.
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