Abortion foes split on tactics

After years of chipping away at Roe, they weigh S. Dakota's frontal assault.

South Dakota has reignited the battle over abortion - and not just the usual one between opposing camps. A long-simmering debate has also heated up within the antiabortion movement.

Here's the question: Is it smarter to try to undo the nationwide legal right to abortion with one sweeping law - a "full-frontal attack" - or via a series of smaller laws that chip away at abortion rights and severely restrict access?

The easy passage last week by the South Dakota legislature of a bill banning nearly all abortions in the state has moved the question to center stage. The bill contains no exceptions for rape or incest; it allows abortion only when it is deemed necessary to save the life of the pregnant woman. Backers of the bill across the country are urging the governor to sign it, thus sending it on a legal journey they hope will eventually reach the US Supreme Court.

But that gambit could backfire, setting back efforts to overturn the 1973 ruling, Roe v. Wade, which legalized abortion in all 50 states. Currently, the majority of sitting justices are on the record favoring Roe. And there is no guarantee that the two new justices, John Roberts and Samuel Alito, would look favorably upon a petition to reconsider Roe so soon after joining the court, or even in a few years.

"The only thing that asking for too much, too soon, produces is a further reaffirmation of Casey and Roe," says legal historian David Garrow, referring to a 1992 high-court case that reinforced the core holding of Roe. "As we heard countless times from Alito and Roberts at their [confirmation] hearings, every time a precedent is reendorsed, it is further strengthened."

The nation's largest antiabortion organization, the National Right to Life Committee (NRLC), has been notably silent on the South Dakota legislation, and unavailable to the press. Brock Greenfield, executive director of NRLC's South Dakota affiliate and a state legislator, expressed reservations about the bill, even as he voted for it. The governor, Michael Rounds (R), has said he is "inclined to sign" it, though he believes it would be better to eliminate abortion in steps.

When a similar bill came to his desk two years ago, he vetoed it on technical grounds, and the legislature failed to override the veto. This time, though, all the national attention has made it more difficult for South Dakota politicians who oppose abortion rights to vote in a way that, on paper, at least, puts them in league with Planned Parenthood.

The White House, which counts social conservatives among its most loyal supporters, has offered its own lukewarm reaction. President Bush never speaks of overturning Roe. On Monday, spokesman Scott McClellan repeated Mr. Bush's usual stance: "The president believes we ought to be working to build a culture of life in America and we have taken practical, common-sense steps to help reduce the number of abortions in America."

Mr. McClellan also repeated Bush's position that he is "prolife with three exceptions" - rape, incest, and endangerment of the woman's life, the first two of which are not in the South Dakota legislation.

Some antiabortion advocates have stepped forward publicly with objections to South Dakota's approach. "Precedent does mean something," says Dan McConchie, vice president of Americans United for Life, a legal-advocacy group based in Chicago. "The court as an institution tends to be very protective of its image, and doesn't tend to overturn its own decisions on a whim or something that could be perceived as being of a political nature."

Mr. McConchie noted that for the Supreme Court to reconsider the central holding of Roe - that a woman's right to end a pregnancy exists in the Constitution's implied right to privacy - it does not need to take a case that seeks blatantly to overturn it. The most significant post-Roe abortion precedent, Casey v. Planned Parenthood of Southeastern Pennsylvania, centered on restrictions to the abortion right, but could have served as a vehicle to reverse Roe if the justices had so chosen.

Still, for many antiabortion activists, efforts to attack Roe head-on can't come too soon. "The question of abortion is the question of human life, and how can we reserve action when it comes to defending human life?" asks Paul Schenck, director of the National Pro-Life Action Center in Washington.

He rejects the argument that the South Dakota legislation could backfire. If the justices don't believe the time is ripe to reconsider Roe, they don't have to accept the case. Lower-court rulings would presumably strike down the ban, and so the South Dakota effort could wind up being symbolic. But as a symbol, Mr. Schenck says, it could be powerful - emboldening other state legislatures. Already, at least six are considering their own abortion bans.

Ultimately, the "chipping away" approach that has been the main strategy of antiabortion forces since the 1980s is likely to remain the movement's major focus.

The Supreme Court announced last week that it will hear a case later this year seeking to uphold a federal ban on what critics call "partial-birth abortion." That ban has a good chance of being upheld, since Justice Sandra Day O'Connor - the swing vote upholding a similar ban in 2000 - has now retired. Her replacement, Justice Alito, is expected to view abortion restrictions more favorably. If upheld, the ban would represent the first outlawing of any abortion procedure since Roe was decided, and could have a chilling effect on doctors' willingness to perform abortions, say supporters of abortion rights.

"What happens in the partial-birth case is vastly more important than anything that could happen in South Dakota," says Mr. Garrow.

Indeed, abortion-rights supporters acknowledge that South Dakota could redound to their benefit, by grabbing the public's attention and reminding the majority of Americans who want to keep Roe in place that abortion rights are under attack.

"South Dakota has been just a tremendous wake-up call across the country," says Cecile Richards, president of the Planned Parenthood Federation of America. It is a reminder, she adds, of "how important it is who serves in state legislatures and who serves in the governor's office."