41 years after Roe v. Wade, abortion foes undaunted

On the eve of the 41st anniversary of Roe v. Wade, the US Supreme Court’s landmark ruling that legalized abortion nationwide, opponents of abortion are undaunted.

A wave of state laws in recent years has added new regulations to the practice of abortion, mostly in Republican-leaning states, as well as in some political battlegrounds. Some clinics have closed, and courts have fielded numerous legal challenges, some of which could reach the Supreme Court – an opportunity, abortion foes hope, to chip away at or even overturn Roe and other abortion precedents.  

Since 1990, when abortions in the United States peaked at 1.6 million, the annual number has declined to about 1.1 million, another data point for which abortion opponents claim credit. 

But Congress remains an important battleground, too, opponents of abortion rights say, even with a solidly pro-abortion-rights Democrat in the White House who is prepared to veto their legislation. A bill to ban most abortions after 20 weeks’ fetal age, called the Pain-Capable Unborn Child Protection Act, is the top priority of the National Right to Life Committee (NRLC) in the current Congress, the NRLC said in its annual report Tuesday.

A similar bill enacted by Arizona in 2012 was struck down last May by the US Court of Appeals for the Ninth Circuit. On Jan. 13, the Supreme Court declined to hear an appeal, which means the Arizona law will not be revived. Under Roe, states may not ban abortion before viability, estimated at 22 to 24 weeks’ gestational age.

But NRLC officials are not dissuaded by the court’s rejection of the Arizona case, saying that the federal bill, as well as the 10 other states that have adopted 20-week abortion bans, is significantly different. (Two of the state laws, in Georgia and Idaho, are enjoined pending litigation.)

“Look at the titles of the bills,” says Mary Spaulding Balch, NRLC’s director of state legislation.

Arizona’s now-defunct law was called the Women’s Health and Safety Act, and was based on the idea that late abortions are riskier to a woman’s health and safety than earlier-term abortions. The federal and other state laws are focused on the idea that a 20-week-old fetus can feel pain, a controversial concept that NRLC says is backed by new scientific evidence.

“Roe had recognized the compelling interest of the state in banning post-viable abortions,” says Ms. Balch. “We’re saying this is another compelling interest” – the interest of a state in preventing a fetus that is capable of feeling pain from being aborted.  

The NRLC, founded in 1968, takes the long view in its efforts to pare back access to abortion. Douglas Johnson, legislative director of NRLC, points to 2007, when the Supreme Court upheld a federal ban on a form of late-term abortion – called the Partial-Birth Abortion Ban Act – after rejecting a Nebraska state ban in 2000.  

“We heard all the same sort of rhetoric about that federal bill – that it’s clearly unconstitutional and goes contrary to the doctrine of Roe v. Wade and applies before viability and so forth,” said Mr. Johnson in a conference call with reporters. “But when it reached the Supreme Court, they adjusted the doctrine and upheld the law.”

Last June, the Republican-controlled House passed the Pain-Capable Unborn Child Protection Act, but the Democratic-controlled Senate has not taken it up. As the campaign for the fall midterms heats up, both parties are seizing on abortion as a critical litmus test for their candidates. The Republicans are likely to keep the House and have a shot at taking over the Senate.

Some Republican leaders have sought to play down the divisive abortion issue as they seek to expand their party’s tent and attract moderate voters. Still, on Wednesday, the Republican National Committee is delaying the start of its winter meeting in Washington so that committee members – including Chairman Reince Priebus – can attend the annual March for Life.

In its annual report, the NRLC estimates that 56 million abortions have taken place in the US since Roe was handed down on Jan. 22, 1973.

The NRLC report also charts the types of abortion legislation states have passed in recent years:

• Ultrasound. Twenty-three states have ultrasound laws. Of those, four require that a woman be given a description of the image of the fetus. (One of those states is North Carolina; last Friday, a federal judge struck down the law as unconstitutional.) Six require that an ultrasound be performed, and that the woman be offered the opportunity to view it. Nine states require that the mother be provided with an opportunity to view an ultrasound if ultrasound is used during the abortion. Five require that a woman be offered the opportunity to view an ultrasound.
• "Informed consent." Twenty-seven states have such laws, which require an abortion patient to be told of medical risks associated with abortion, alternatives to abortion, and information about the development of the fetus.
• Obamacare. Twenty-four states have laws regulating or banning abortion coverage in health plans.
• Chemical abortions. Seventeen states ban so-called “web-cam” abortions, in which a woman has a drug-induced abortion and is monitored by video, but is not in the same location as the doctor.
• Parental involvement laws. Twenty-nine states have laws requiring parental involvement, usually notification or consent, when a minor has an abortion. 

The NRLC report did not tally other new restrictions in some states, such as those that require abortion doctors to have admitting privileges at local hospitals and those that require upgrades to facilities.