Pro-life advocates have been racking up victories for their cause, but the changes are not coming at the federal level. Instead, states across the country are passing laws that require waiting periods, ultrasounds and counseling before women have abortions.
In South Dakota, women seeking abortions now must wait 72 hours and receive counseling at a crisis pregnancy center before having the procedure. The law, which was signed March 22 by Gov. Dennis Daugaard, also calls for women to make two visits to a physician and be screened for various risk factors.
In Arizona, women must be offered the opportunity to view an ultrasound at least an hour before any abortion procedure, and doctors may not prescribe abortion-inducing drugs without an in-person examination of the patient. Arizona also bans abortion for reasons of race.
In Idaho, the legislature on April 10 passed a law that would ban all abortions after 20 weeks, unless the life or physical health of the mother would be threatened by continuing the pregnancy, similar to a law passed last year in Nebraska.
Meanwhile, scores of measures are on this year’s legislative agendas across the country. Among the most effective measures have been those calling for parental notice or consent for minors who want abortions, restricting public funding for abortion, requiring waiting periods before the procedure can be performed and making abortion clinics subject to the same regulations as other outpatient surgical centers. States also have acknowledged that unborn babies are worthy of protection by enacting fetal homicide laws and extending wrongful death laws to unborn children.
A state issue
The reason that states have become the main arena for enacting pro-life legislation is that abortion is, fundamentally, an issue for state governments, said Paul Linton of the Thomas More Society. Linton is the author of “Abortion under State Constitutions” (Carolina Academic Press, $75).
Before the 1973 Roe v. Wade decision, there was no federal law either allowing or banning the procedure, and the states had a patchwork of regulations, he said.
“Congress doesn’t usually pass legislation in this arena,” Linton said. “The Partial Birth Abortion Act of 2007 was an anomaly.”
Clarke Forsythe, senior counsel for Americans United for Life, agreed.
“Whatever legislation that can be passed is state regulation,” Forsythe said. Ameri-cans United for Life publishes model legislation on a number of abortion-related topics for pro-life advocates to use in their respective states. It also publishes “Defending Life: A State-by-State Legal Guide to Abortion, Bioethics and the End of Life.”
Picking up seats
The pro-life movement had been meeting with more success in states in recent years, Forsythe said, and he expects that trend to accelerate this year, with conservative Republicans making big gains in many state legislatures and governor’s seats in 2010 elections.
“Some states, like Iowa, where we couldn’t do anything before, are in play for us now,” Forsythe said. “Last November, we picked up about 600 seats in the state legislatures. We’ve had all kinds of governors switch. In June I think you’ll see more pro-life legislation coming out of these legislatures than any year before.”
The political changes follow a public opinion shift to a more pro-life position. In 2009, for the first time since Gallup has asked the question, more than 50 percent of people polled identified themselves as pro-life.
The Roe v. Wade Supreme Court case and its companion, Doe v. Bolton, set limits on how states could regulate abortion, but did not say that it could not be regulated at all.
Under the Supreme Court decisions, it is generally held that states have more rights to regulate abortion after the fetus becomes viable — that is, able to survive outside the mother’s body.
Some states are considering banning abortion in most circumstances at about 20 or 22 weeks gestation — a week or two before viability — based on research that shows fetuses at that age can feel pain. Linton, for one, thinks there is a chance such laws would be overturned by the Supreme Court.
“We just don’t have the votes,” he said.
All state-level abortion legislation is written with “one eye on the Supreme Court,” because pro-life advocates know that any law will likely become the subject of litigation.
That doesn’t mean that pro-lifers have given up on overturning Roe v. Wade. In fact, many see the state regulations being put in place now as preparation for that day, because if the decision is overturned, abortion will not become illegal overnight. Overturning Roe v. Wade will simply allow state legislators the latitude to stop abortion in their own states.
In fact, the first priority is to try to prevent states from deciding that their own constitutions guarantee a right to abortion, Linton said. About a dozen states have interpreted their constitutions to require access to abortion.
“Even if Roe is overruled, these states would not be able to prohibit abortion because of their constitutions,” Linton told OSV.
On the other hand, some state constitutions have language that includes pro-life provisions, Linton said.
Passing regulations now can help curb the number of abortions that take place under the current law, and show pro-lifers in which states to concentrate their efforts should Roe v. Wade no longer be the law of the land, advocates say.
Of course, there’s a practical reason to focus on state laws as well: With 50 states, advocates have the opportunity to keep trying to make headway against abortion. In the federal government, it’s one shot and they’re done.
“There are 50 state legislatures to work with instead of one,” Linton said.
Michelle Martin writes from Illinois.
Boon for Pregnancy Centers? (sidebar)
The new abortion law in South Dakota requires pregnant women to receive counseling at a pregnancy help center before having an abortion. Women would have to bring a certificate showing they had the counseling before an abortion clinic could go forward with the procedure.
Paul Linton of the Thomas More Society, a national pro-life law center, questioned whether pregnancy help centers could be supported by the Catholic Church — or whether Catholics could support such centers — if they provide certification that will allow women to obtain abortions.
Germany has a similar counseling requirement, and in 1998, Pope John Paul II instructed German clergy to stop issuing certificates saying that they had counseled pregnant women seeking abortions. In 2007, Cardinal William Levada, prefect of the Vatican Congregation for the Doctrine of the Faith, instructed German bishops to distance themselves from a separate abortion-counseling group, Donum Vitae.