Life after Carhart

The high court's 2007 decision on partial-birth abortion stirs up statehouses in 2008

A year ago this month, Denise Burke surveyed the state legislative landscape and didn't like what she saw. The Americans United for Life vice president and legal director had noticed that on abortion, some state lawmakers seemed mired in lethargy. Overall in 2006 states introduced fewer bills regulating abortion and protecting women from its harmful effects than in the two previous years.

Among some legislators, Burke said, "There was a little bit of the thought process, 'we've done everything we need to do' on abortion."

What a difference a year makes.

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In 2007, states considered approximately 400 bills regulating abortion, an increase of more than 50 percent over 2006, and in 2008, the tally could be much higher. Among the catalysts: Gonzales v. Carhart.

In the landmark decision of last April, the Supreme Court upheld the congressional ban on partial-birth abortion, marking the first federal abortion restriction of any kind since Roe v. Wade. In addition to its startlingly frank language on the morality of abortion, harm caused to women, and what actually occurs during certain procedures, the court reaffirmed states' legitimate interest in regulating abortion. Perhaps more importantly, the 5-4 majority held that pro-abortion groups may no longer challenge abortion regulations as unconstitutional simply because they are abortion regulations.

Instead, the court established an "as applied" standard-which requires individual plaintiffs to ask that a law not be applied to them because of their particular circumstances.

The ruling seemed to reenergize some pro-life lawmakers. Beginning in July, AUL began fielding legislative consulting requests-or requests for advice on drafting pro-life bills-from around the states. "In the eight years I've been here, we've never gotten them that early," Burke said.

Nor in such quantity: In the latter half of 2007, AUL fielded three times as many requests for help with state legislation as in previous years.

Among those touching base with AUL: Alan Nunelee, a Republican who has served in the Mississippi statehouse since 1995. "The Carhart decision caught us all by surprise," Nunelee said. "There was conventional wisdom that said the court . . . was going to continue to allow the status quo to exist."

Instead, Nunelee said, the ruling opened new possibilities for pro-life lawmakers who support "incrementalism," a strategy that aims to curb the number of abortions law by law, state by state.

A February 2007 study conducted for the Heritage Foundation Center for Data Analysis by University of Alabama political science professor Michael New found that the abortion rate among minors plummeted by 50 percent between 1985 and 1999, compared with an overall abortion decline of 29 percent. Although a number of factors contributed to the precipitous drop among minors, New found that laws requiring parental involvement and abortion-funding restrictions correlated with abortion declines of 16 percent and 23 percent, respectively.

In Mississippi, which carries the nation's toughest parental involvement law (both parents must consent), abortions are down 60 percent overall. "We may not have put the ball in the end zone yet," Nunelee said, "but we are definitely in the red zone, and very close to becoming the first abortion-free state in America."

Galvanized by Carhart, Nunelee intends to introduce multiple measures this year, including one that prevents abortionists from operating as off-shore corporations and from purchasing medical malpractice insurance through foreign carriers. "We want to make sure abortionists are operating as Mississippi businesses" so that they can be more easily held accountable in cases where they injure women. "I think that's something we could win post-Carhart if a challenge reached the Supreme Court."

Kansas Republican Lance Kinzer's plans for 2008 have less to do with Carhart than with the refusal of Kansas officials to enforce state laws prohibiting late-term abortion. For more than three years, the state has been a flashpoint in the abortion debate as officials battled over late-term abortions allegedly performed by Planned Parenthood and infamous late-term specialist George Tiller.

"Much of our legislation this year will be interacting with the shortfall we see on the enforcement side," as officials from the governor to the attorney general to the courts seem loath to shut down Tiller's operation, even though documentary evidence shows he likely operates in violation of Kansas law.

Still, Kinzer said, Carhart has had a significant impact on pro-life deliberations in the Kansas statehouse. First, the new "as-applied" standard will allow lawmakers to see how regulations play out in practice, rather than having them shot dead in the cradle. Also, "the importance of Carhart has been that in drafting new legislation, we have a very up-to-date opinion that lets us ask the question, 'How far can we push?'"

The potential impact of Carhart was not lost on pro-abortion groups. In May 2007, the Washington, D.C.-based National Women's Law Center called Carhart "an open invitation" to pro-life state lawmakers to "open the floodgates for anti-choice attempts to restrict access to abortion further," including attempts to pass outright abortion bans.

In response, a smattering of Democrat-controlled legislatures considered bills that would enshrine access to abortion in state law. New York introduced the "Freedom of Choice Act," a measure that would guarantee abortion-on-demand within its borders, and also erase all incremental protections, including those for unborn victims of violence and health-care providers who refuse to participate in abortions. Rhode Island considered a similar bill, while New Jersey amended its State Health Benefits plan to require coverage "for obstetrical services including . . . abortion."

Still, several states in 2007-including Mississippi, North Dakota, South Dakota, Utah, Virginia, and West Virginia-introduced "trigger laws," which would ban abortion should Roe v. Wade be overturned. A total of 20 states considered abortion bans in 2007, a number Burke expects to climb this year.

"Carhart doesn't necessarily give the green light to that, and we've been encouraging people to put the brakes on," Burke said. Still, she expects to see "a lot of states" debating human life amendments and near-complete bans on abortion with exceptions only for the life of the mother.

Pro-life hot sheet

Stories to watch in 2008

In the coming year, a number of pivotal life issues hang in the balance: Will the morning-after pill be the undoing of religious rights-of-conscience? Will the Democratic candidate for president convince voters that the very "right to choose" is at stake in November? Here are five front-burner stories to watch:

Target: CPCs

"Whereas . . . 'crisis pregnancy centers' misinform and mislead women to deter or to delay them from having abortions . . ." With bill language like that, who needs a state investigation? Yet that is exactly what the Oregon legislature authorized in 2007 when it considered passage of a bill attacking Senate Bill 776 which, though containing the foregone conclusions above, requires the state department of health to investigate crisis pregnancy centers. Sparked by a 2006 report by pro-abortion congressman Henry Waxman (D-Calif.), SB 776 is just one among several bills nationwide that target CPCs in an effort to brand them officially as "fake clinics" and, in some states, to cut off public funding.

The abortion card

Heading into the primary season, Democratic presidential candidates are jockeying among themselves to stake out appealing positions on the economy and the war. But once the primaries are over, watch for the Democratic nominee to play the abortion card. "Whoever it is will stridently warn that the Supreme Court is 'only one vote away' from overturning Roe v. Wade," said Douglas Johnson, legislative director of the National Right to Life Committee, "and will vow to appoint only committed pro-Roe jurists to the multiple vacancies that are anticipated during the next four years."

The end of rights-of-conscience?

Washington State Sen. Karen Keiser in December introduced a bill that would require all pharmacies in the state to dispense all legal medications-including Plan B, the morning-after pill. The measure is a direct shot at pharmacists' rights-of-conscience and is part of pro-abortion activists' widening battle to force druggists to dispense "emergency contraception" over their own religious objections.

Defining human life

In Colorado, a young law student has succeeded in her efforts to place a human life amendment on the state ballot in November. The measure, spearheaded by Kristi Burton, 20, would define fertilized eggs as human beings and afford them state constitutional protections. The Colorado measure is one of a number of "human life amendments" in play around the country as state pro-life activists attempt to neutralize Roe v. Wade. Some national groups, such as the National Right to Life Committee, say human life amendments are lawsuit magnets that divert resources from passing other, more enforceable laws aimed at reducing abortion. Others, such as the Michigan-based Thomas More Law Center, say state human life amendments could force a Supreme Court reckoning on Roe v. Wade.

Tiller to trial?

A Sedgwick County, Kan., grand jury is set to investigate abortionist George Tiller, who is suspected of performing hundreds of late-term abortions in violation of state law. Pro-life groups collected thousands of petition signatures, triggering a state law that allows a grand jury probe when officials refuse to investigate. The Kansas Supreme Court rejected Tiller's request to halt the investigation. The grand jury is set to convene on Jan. 8 and can meet for up to 90 days, although that can be extended by a district court judge.