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By MARGARET TALEV
First a celebration, then a fight over strategy, now a campaign on two fronts.
That’s how the nation’s anti-abortion movement has reacted since South Dakota last month became the first state among 10 contenders to pass a ban on abortion in order to test a shifting U.S. Supreme Court.
Many pro-life leaders disagree with South Dakota’s timing. They say even with Chief Justice John Roberts and Justice Samuel Alito now on the court, a 5-4 majority to uphold Roe v. Wade, the landmark case from 1973 that blocked states from outlawing abortion, likely remains. They are instead focusing on legislation less likely to divide voters or to be thrown out in court _ urging ultrasounds before an abortion, or regulating medical building and equipment standards in ways that could shutter clinics unable to get up to code.
Even so, conservative lawmakers in several other states are feeling emboldened and in some cases challenged to press ahead with full-scale bans of their own.
A House committee in Mississippi _ a state that has only one remaining abortion clinic _ has amended legislation that had focused on ultrasounds into a measure to ban abortions with exceptions for the life of the mother but not for cases of rape or incest.
A Missouri state senator, Jason Crowell, has proposed two measures to take before voters this fall _ one criminalizing abortion except to save a woman’s life, the other amending the state constitution to prohibit abortion.
"If not now, when? If not us, who?" Crowell, who was elected to the Senate in 2004 on an anti-abortion platform, said in a telephone interview.
"My answer is, now is the time, and Missouri should be the ‘Show-Me’ state, not the ‘Let’s-see-what-happens’ state," he said.
"I think a lot of individuals are saying, ‘This is moving too fast,’ " Crowell said. "Well, there’s nine other states moving this forward. There is no more time to wait."
Lawmakers in Tennessee, Indiana, Kentucky, Ohio, Georgia, Oklahoma, and West Virginia also are looking at abortion bans. Advocates say cases can take years to move through the courts, and some are betting President Bush will get one more vacancy before his term ends in less than three years.
But in these states, many of the same dynamics are playing out, with the legislation stalled in committees or kept off the legislatures’ floors because leaders _ even those who oppose abortion _ think it’s too soon.
In Kentucky, more than one-third of the House has signed on to a proposed ban. But groups like the Kentucky Right to Life Association are withholding support.
"It’s premature, we don’t have the votes on the Supreme Court right now," said the state affiliate’s executive director, Margie Montgomery. "We’re busy with these other bills that are very important and do-able."
The more cautious advocates say a test case shouldn’t be put in motion until the court includes at least one more justice with an anti-abortion background. If Roe v. Wade is upheld again it could make it harder to knock down anytime soon, they argue.
And a ban movement now could inject cash and energy into the abortion rights movement before the truly pivotal nomination battle, should Justice John Paul Stevens or another colleague who has supported abortion rights retire from the court before Bush leaves office.
"In some ways it’s a wakeup call," said Jackie Payne of the abortion rights group Planned Parenthood Federation of America. "We may be able to motivate people who are with us to voice their opinion and take it back."
While fears of such an outcome are creating resistance from within anti-abortion circles to outright challenges to Roe v. Wade, dozens of smaller-scale anti-abortion bills perhaps more likely to be sustained in court are barreling ahead in many states.
These include so-called informed consent requirements, such as directing doctors to tell women that fetuses may feel pain. Oklahoma is among the states considering requiring abortion doctors to offer patients ultrasounds, which, in more advanced cases, would confront them with an image of the fetus, or the sound of a heartbeat, before they went forward with terminating their pregnancies.
"As people see 3-D ultrasounds, people say, ‘Oh that really is a baby, it’s not just a tumor or a clump of tissue,’" said Oklahoma state Rep. Kevin Calvey, who is sponsoring such a measure. "People wake up and go, ‘Oh my gosh, this is what’s being killed?’"
Several states are discussing heightening existing requirements for parental notification or consent. Or imposing targeted regulatory restrictions that could force abortion clinics to be shuttered, at least temporarily. Such an effort has been building into a legislative standoff in Indiana and is under consideration in 10 additional states.
Planned Parenthood’s Payne said such legislation is in some ways more threatening to her advocacy than a proposed abortion ban that is likely to be struck down.
"What’s getting all the attention is we have South Dakota putting out this direct frontal attack," Payne said. "I’m actually just as concerned about what they’re doing every day on the ground. If you restrict access to the point there is no one who can or will do it for you, you’ve taken the right away. And that’s becoming the reality for women in many states in this country."
Last year, she said, the political climate in Missouri drove one of three clinics out of business. South Dakota’s one remaining clinic flies providers in from Minnesota. At least seven states already have "trigger" legislation on the books that automatically would prohibit abortion if the U.S. Supreme Court does one day overrule Roe v. Wade. In Ohio, Payne said, a court ruling last week put a clinic in jeopardy, saying it would have to shut down if no area hospital would engage in a transfer agreement with it.
"These regulations are every day making abortion inaccessible," she said.
There are anti-abortion activists who aren’t convinced Roberts and Alito would join with Justices Antonin Scalia and Clarence Thomas to overturn Roe just yet, regardless of whether they had a fifth vote. But both Alito and Roberts do have backgrounds that reflect anti-abortion sentiments. And abortion opponents believe the two new justices would be more likely in general to limit abortion rights that retired Justice Sandra Day O’Connor.
Alito decades ago wrote about his personal belief that abortion is unconstitutional, and Roberts advocated against government support for abortion when he worked for the Reagan administration. At the same time, both _ especially Roberts _ have spoken about their respect for precedent, and the idea that the longer a high court decision is on the books and the more times it is upheld, the more compelling the reason should be if it is overturned.
Other recent developments also favor abortion opponents: the high court’s unanimous ruling this week that abortion clinic protesters can’t be prosecuted under a federal racketeering law, and the court’s agreement to consider a partial-birth abortion case later this year.
Another frustration for abortion rights supporters: Some of the same lawmakers across the country who want to limit abortions also oppose expanding welfare, providing government funded contraception, making emergency contraception available or teaching about contraception in sex education classes.
"I personally see it as a contradiction but I don’t think that movement sees it as a contradiction," said Betty Thompson, spokeswoman and former administrator for the Jackson Women’s Health Organization, Mississippi’s sole abortion provider.
About 1.3 million abortions occur each year in the United States, a number that has been slowly but steadily declining, according to the Guttmacher Institute, which advocates abortion rights and contraception but whose statistics are cited across ideological lines. But abortions actually are increasing among black and Latino women.
"Economics drives a lot of it, that women can not afford good health care or more children. That drives a lot of it in Mississippi," Thompson said
A Guttmacher Institute survey, however, shows some conservative states have joined traditionally liberal states in improving access to family planning.
Alaska, South Carolina and Alabama joined California and New York as the states in which government does the most, through regulations and subsidies, to help women avoid unintended pregnancy. Nebraska, North Dakota, Indiana, Ohio and Utah were ranked least helpful.