Prompted by the U.S. Supreme Court’s approval last month of a federal ban on a medical procedure known as partial-birth abortion, activists on both sides of the abortion battle are aiming their sights at state capitols, where new campaigns already are under way.
Pro-life activists said that, in light of the new high court ruling, they plan to push legislatures in more than half the states to revive state bans on late-term abortion procedures that had been blocked by courts. Pro-life groups also see a chance to seek additional restrictions on abortion procedures late in pregnancy.
At the same time, pro-choice groups are gearing up to push states and Congress to pass laws ensuring a woman’s right to abortion. The new laws — known as Freedom of Choice Acts — are designed to prevent further barriers to a woman’s right to abortion.
Last month, New York Gov. Eliot Spitzer, a Democrat, vowed to push for a Freedom of Choice Act. If approved, the Empire State would join seven others with laws enshrining a woman’s right to abortion as established by the U.S. Supreme Court’s landmark 1973 decision, Roe v. Wade.
Since Roe v. Wade, anti-abortion groups have turned to state legislatures to chip away at a woman’s right to an abortion with a patchwork of restrictions, from parental consent to physician counseling and mandatory waiting periods. The latest high court ruling is the first to uphold an abortion restriction without requiring an exception to protect a woman’s health. It is also the first time the court has approved a ban on a specific medical procedure.
Legal experts on both sides of the debate agree the high court’s April 18 decision — Gonzalez v. Carhart — does not open the door for outright abortion bans. Instead, they say the decision leaves room for more limits on the procedure.
But new efforts to restrict a woman’s right to an abortion could face stiffer opposition since last year’s state elections. Six new governors who support abortion rights were elected and 15 statehouse chambers shifted toward greater abortion rights, according to an analysis by NARAL Pro-Choice America.
In the anti-abortion camp, activists are targeting 31 states with laws similar to the federal Partial Birth Abortion Ban of 2003 just upheld by the Supreme Court. The state laws were blocked by federal courts following an earlier U.S. Supreme Court decision — Stenberg v. Carhart (2000) — that overturned partial-birth abortion bans in Nebraska and other states.
Because the high court’s latest decision veered away from that ruling, laws in two of the states — Missouri and Virginia — were sent back to appellate courts for reconsideration within days of the Supreme Court decision. Court cases involving bans in Michigan and Utah also could be affected by the court’s ruling, legal experts said.
In the other states, attorneys general and legislators must decide whether to dust off the old laws and seek court approval, rewrite the statutes or do nothing, legal experts say.
In most states, laws banning the procedure known as partial-birth abortion — in which a late-term fetus is removed from the womb intact — would need to be redrafted, said Denise Burke, an attorney with Americans United for Life, an anti-abortion advocacy group.
Although the federal ban applies in all 50 states, Burke said, state laws are needed as well, because “the federal law is very narrow and may not catch all the procedures being done.” Of the 31 states with blocked partial-birth bans, NARAL’s analysis indicates that at least 18 have legislatures with a majority of members opposed to abortion.
Burke said her group and others also plan to seek additional state restrictions, including curbs on post-viability abortions performed after the fetus is capable of living outside of the womb.
Meanwhile, abortion-rights advocates already are building defenses against an anticipated onslaught of new restrictions.
In addition to New York, abortion-rights advocates are seeking to pass laws to shore up a woman’s right to an abortion in other politically receptive states, including Massachusetts, New Jersey, Minnesota, Montana and Vermont, according to Katherine Grainger of the Center for Reproductive Rights.
Nevada was the first to pass a so-called freedom-of-choice law in 1990, followed by Maryland (1991), Maine (1992), Washington (1992), Connecticut (1997), California (2002) and Hawaii (2005).
In Congress, Sen. Barbara Boxer (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) last month sponsored a similar law.
Contact Christine Vestal at cvestal@stateline.org.
Stateline.org is an independent element of the Pew Research Center and is based in Washington, DC