Another week, another rash of new state restrictions on a woman’s right to choose. Last week it was Kansas in the spotlight. On Friday, just as health workers were reopening the long-shuttered women’s clinic of the murdered abortion provider George Tiller, Kansas legislators sent Republican Governor Sam Brownback an impressive new assortment of rules designed to harass abortion providers and their patients. The so-called Women’s Right to Know Act extends the state’s insurance restrictions to keep women from paying for abortion through supplemental plans or medical savings accounts. It bars health professionals from speaking in schools if they work at clinics that provide abortions. It forces physicians to document elaborate efforts to convince patients that ending a pregnancy “will terminate the life of a whole, separate, unique, living human being.” It also requires doctors to warn women of bogus long-term health risks.
Laws like these have dramatically curtailed abortion rights since social conservatives swept the 2010 midterm elections. Last year alone, 19 states passed 43 laws to make abortion more costly, laborious and humiliating―a tally second only to the 92 laws enacted in 2011. But to a growing faction of pro-life activists, these incremental advances are for sissies. This radical vanguard wants to reverse the 40-year-old Roe v. Wade decision once and for all―by passing laws that violate current law brazenly enough to force reconsideration by the U.S. Supreme Court. This shared dream of the pro-life base is suddenly emerging all over the Midwest. North Dakota and Arkansas have both launched frontal assaults on Roe recent weeks, and Kansas may well do the same when its lawmakers reconvene in May. You might expect mainstream abortion foes to cheer this new ferocity, but you’d be mistaken. The smart ones are rightly worried that the new war on Roe that could dash their hopes for decades.
SPLIT EMERGES IN ANTI-ABORTION MOVEMENT
Until recently, even the most conservative states avoided passing laws that flouted established legal precedent. Voters in Colorado and Mississippi have rejected constitutional amendments that would give a fertilized egg the same legal rights as the woman carrying it. And Ohio’s Republican senate president last year shelved a successful House measure that would have outlawed abortion as soon as a vaginal probe could discern a fetal heartbeat—a threshold most pregnancies cross at about six weeks. Pragmatic pro-lifers know enough history to see the futility of these efforts. In a 1992 case called Planned Parenthood v. Casey, the Supreme Court upheld the states’ rights to regulate abortion services (hence the current blizzard of restrictions), but it reaffirmed a woman’s right to end a pregnancy any time before the fetus is independently viable (at 24 to 26 weeks). No one seriously expects the new laws from Arkansas and North Dakota to take effect this summer. They’re designed to be struck down and appealed.
Arkansas’ Democratic Governor, Mike Beebe, vetoed his legislature’s recent heartbeat bill, arguing that it would be reckless to spend millions defending a law that “blatantly contradicts the United States Constitution, as interpreted by the Supreme Court.” But the lawmakers overrode him in early March, one asserting that the governor was in no position to “determine if something is constitutional or unconstitutional.” The resulting ban—set at 12-weeks rather than six to spare women forced vaginal probing—briefly qualified as the nation’s most restrictive abortion law yet. But North Dakota upped the ante in late March, when Republican Governor Jack Dalrymple embraced a law protecting any fetus with a heartbeat. He tacitly acknowledged the futility of the effort, noting that “the likelihood of this measure surviving a court challenge remains in question.” But he insisted the measure was “nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”
That’s the kind of talk that worries Mike Gonidakis, the 39-year-old lawyer who heads Ohio Right to Life. Gonidakis and his organization, an affiliate of National Right to Life, openly opposed Ohio’s heartbeat bill last year, and he sees the growing assault on Roe as a fool’s errand. “Let’s be clear,” he says. “The whole pro-life movement shares a belief in the sanctity of life from womb to tomb. I’d like to eliminate abortion starting at conception, not just heartbeat. The difference within the movement is about strategy, not philosophy.” But the breach on strategy runs deep. Gonidakis predicts that court injunctions will quickly block enactment of the Arkansas and North Dakota laws, setting off costly legal battles that could drag on for decades—only to reaffirm and reinforce the Roe decision. “Legal scholars call these heartbeat bills a Hail Mary pass,” he says. “That’s the pass you throw when you’re out of other options and you’ve got nothing left to lose. But we’re in a strong position. The incremental restrictions are working, but this Supreme Court is not going to overturn Roe. Why would we ask them to review it?”
The question is now moot in Arkansas and North Dakota, but several states are still debating their own heartbeat bans and personhood amendments. When Kansas legislators return from their spring recess in May, one piece of unfinished business will be House Bill 2324, a heartbeat bill just as strident as North Dakota’s. Kansans for Life, a mainstream anti-choice group that avidly supported the state’s new “Women’s Right to Know” restrictions, isn’t talking publicly about the heartbeat bill (the group’s legislative director didn’t answer my requests for comment). But the more radical Operation Rescue, Priests for Life and the Kansas Coalition for Life are pulling out the stops to move the bill during the final weeks of the session. “Even amateur Christian theologians point to the powerful history of our Lord's conception, as evidence that all human life begins at the moment of fertilization,” Operation Rescue President Troy Newman told legislators during a recent hearing in a written statement. “You have in your power to pass a law that would further erode that heinous decision Roe v. Wade made 40 years ago by the goulash [sic] oligarchy called the Supreme Court.”
On a more practical note, supporters believe that a rash of heartbeat bills could persuade 76-year-old Justice Anthony Kennedy to join the Supreme Court’s conservatives in reversing Roe before he retires. Women’s rights advocates know the power of the fundamentalists’ zeal, but that is not a scenario that scares them. Kennedy co-authored the 1992 Casey decision, which reaffirmed and strengthened what he called the “essential holding” of Roe v. Wade. And though he voted with the court’s conservatives in 2007 to uphold the congressional ban on late-term abortions, he wrote a narrow opinion that honored existing precedents. “Legally, the heartbeat laws are dead on arrival," says one veteran reproductive-rights lawyer, speaking on background. “The states that adopt them are going to spend a bucket of money and lose.”
Unfortunately, quixotic moon shots are not the anti-choice movement's sole strategy. As Gonidakis says, the incremental attacks on reproductive freedom are working. And unlike the heartbeat bans, many of them are perfectly allowable under the law. Only the voters can stop them.