June 2, 2010

Abortion Foes Advance Cause at State Level

By JOHN LELAND
At least 11 states have passed laws this year regulating or restricting abortion,
giving opponents of abortion what partisans on both sides of the issue say is an
unusually high number of victories. In four additional states, bills have passed at
least one house of the legislature.

In a flurry of activity last week, Gov. Haley Barbour of Mississippi signed a bill
barring insurers from covering abortion in the new insurance exchanges called
for under the federal health care overhaul, and the Oklahoma Legislature
overrode a veto by Gov. Brad Henry of a bill requiring doctors who perform
abortions to answer 38 questions about each procedure, including the women’s
reasons for ending their pregnancies.

It was the third abortion measure this session on which the Legislature overrode
a veto by Mr. Henry.

At least 13 other states have introduced or passed similar legislation this year.
The new laws range from an Arizona ban on coverage of abortion in the state
employees’ health plan to a ban in Nebraska on all abortions after 20 weeks, on
the grounds that the fetus at that stage can feel pain.

Fetal pain is a subject of debate in the medical community, and the United States
Supreme Court has recognized the government’s right to ban abortions only after
a fetus becomes viable, which is more than a month later.

“The right-to-life folks are seeing just how far they can push things,” said Joseph
W. Dellapenna, a law professor at Villanova University and the author of
“Dispelling the Myths of Abortion History.” Professor Dellapenna said it was
“almost a certainty” that one of the laws would end up in front of the Supreme
Court, where Justice Sonia Sotomayor’s views on abortion are untested, as are
those of Elena Kagan,President Obama’s new court nominee.

“It could turn out they can push things a lot farther than people think,” he said.
“Or, it could not.”

While opponents of abortion rights hope ultimately to overturn Roe v. Wade, the
Supreme Court decision that guarantees a woman’s right to an abortion, they
have made the most impact at the state level, where laws passed in one state
often appear in other legislatures in subsequent years. State laws also have the
potential for national consequences by setting off court battles that challenge or
limit the scope of Roe.

“Ninety percent of pro-life legislation happens at the states,” said Daniel S.

McConchie, vice president for government affairs at Americans United for Life,
which opposes abortion. “While Congress is the main focus of attention for so
many people in the country, state legislatures have greatest impact on daily
lives, and life-related legislation is no exception.”

Much of this year’s legislation arose from a 2007 United States Supreme Court
decision upholding a federal ban on a late-term procedure that critics call partial-
birth abortion, which gave lawmakers greater leeway to restrict abortion.

About 370 state bills regulating abortion were introduced in 2010, compared with
about 350 in each of the previous five years, and 250 a year in the early 1990s,
according to the Guttmacher Institute, a research organization that supports
abortion rights. At least 24 of this year’s bills have passed, and the final total may
reach the high of 2005, when states passed 34 laws, said Elizabeth Nash, a public
policy associate at the institute.

More significant than the number of bills introduced are the number and nature
of those that passed, partisans on both sides agree.

“What’s different is that bills of serious consequence have actually passed,” said
Nancy Northrup, president of the Center for Reproductive Rights, who
characterized the volume of legislation as “an avalanche.” Already the center has
brought suits to challenge six laws, more than in any other year since the 1990s.

Tennessee, which had not passed restrictions on abortion since 2003, passed two
laws, one banning coverage of abortion in health insuranceexchanges. The other
requires clinics to post signs stating it is illegal to coerce a woman to have an
abortion; 11 other states introduced similar legislation.

“This is a good year as far as victories,” said Mary Spaulding Balch, director of
state legislation for the National Right to Life Committee, who named several
states, including Arizona, Missouri and Tennessee, that are now more open to
restrictive laws. “I do get the impression that the climate is friendlier.”

Eighteen states passed or introduced bills requiring counseling before abortions,

according to the Guttmacher Institute.
Arizona, where Janet Napolitano vetoed abortion restrictions as governor, passed
four laws this year under Jan Brewer, who became governor in 2009 after Ms.
Napolitano resigned to become the secretary of homeland security. The four
include restrictions on coverage under health insurance exchanges, state
employee insurance and Medicaid, and call for stricter reporting requirements for
doctors who perform abortions.

Oklahoma passed seven laws, three over vetoes by the governor, including one
requiring a woman to undergo an ultrasound and listen to a detailed description
of the fetus before an abortion. The law requires that the ultrasound screen be
visible to the woman, though she may avert her eyes. Another new law prevents
parents from suing doctors for not revealing fetal abnormalities
during pregnancy. An eighth measure drew the governor’s fourth veto last week;
the Legislature adjourned on Friday without addressing it.

The ultrasound law “takes the burden away from the mother of having to request
to see it,” Ms. Balch said. “That’s significant, because the harder you make it for
the mother to view it, she’s not going to view it. Many women regret their
abortions afterward, and that’s from looking later at an ultrasound.”

Opponents say the law requires an unnecessary medical procedure and takes
away women’s right to make decisions for themselves. A state judge suspended
the law after a legal challenge.

Lawsuits are likely to be filed against Nebraska’s law banning abortion after 20
weeks. “That’s pretty clearly designed to mount a challenge to women’s right to
choose in the second trimester,” which the Supreme Court has recognized, said
Ted Miller, a spokesman for Naral Pro-Choice America, a national advocacy
organization. “It’s a whole new standard.”

State Senator Mike Flood of Nebraska said he conceived the legislation after
hearing public remarks by LeRoy Carhart, an abortion provider in Bellvue, Neb.,
who said he hoped to continue the work of George Tiller, the Kansas doctor who
was murdered a year ago and who provided late-term abortions for women from
all over the country.

“I was obviously troubled by his intention to perform those types of abortions,”

Mr. Flood said. “My immediate thought was those should be illegal in Nebraska.”
After some research he came upon the idea of banning abortion once a fetus can
feel pain, though much of the medical community says that this does not happen
before the third trimester, about 28 weeks.

In Utah, after a pregnant 17-year-old paid a man $150 to beat her in an effort to
induce a miscarriage, legislators passed a law that would allow a woman in such
circumstances to be charged with homicide. Ms. Balch of the National Right to
Life Committee said her organization did not support that law because it
penalized the woman, “and we don’t support that at all.” Similar legislation was
introduced in two other states.

Over all, abortions in America have been falling since 1990. In recent years,
according to research by the Guttmacher Institute, they have been increasingly
concentrated among poor women, whose rates have gone up even as the overall
national rate has declined.