Abortion Battle Shifts to State Legislatures State Bans of Partial-Birth Abortions Could Lead to a Challenge of Roe V. Wade

Article excerpt

As the Senate begins its latest high-octane debate on so-called "partial-birth" abortions, a parallel effort to outlaw the procedure state by state has accelerated.

So far, 11 states have enacted bans covering this controversial form of late-term abortion, eight of them this year alone. In two more states, bills await the governor's signature. And in at least 22 additional states, legislatures are still considering bills.

The move to ban partial-birth abortions represents a profound shift in the abortion debate. For the first time attention has focused on what happens to the fetus during an abortion rather than the woman. The debate also represents a major public relations victory for the pro-life cause, and is likely to fuel further efforts to ban other forms of abortion. For now, though, in most states that have enacted a ban on partial-birth abortion, the practical impact is minimal. In Ohio and Michigan, legal challenges have halted the ban fully or partially. In the other states, where the laws will take effect over the next few months, abortions of viable fetuses are already banned - a right states have under the terms the Supreme Court laid out when it legalized abortion. But the state-by-state effort is having an impact: The legislatures provide 50 different venues for opponents of abortion to publicize how a partial-birth abortion is performed and, they hope, to swing public opinion away from all abortions. Abortion-rights advocates are also concerned that the state laws provide their opponents with a legal vehicle with which to challenge the right to abortion in the Supreme Court, as laid out in the 1973 ruling Roe v. Wade. "These laws are intended to be a direct attack on Roe v. Wade," says Kathryn Kolbert, legal counsel of the Center for Reproductive Law and Policy in New York. Ms. Kolbert predicts that at least one of the state laws will go all the way to the Supreme Court. A key issue is the fact that some partial-birth abortions are performed before the point when a fetus can survive outside the womb. So if the Supreme Court were to uphold a law banning this procedure, it would effectively be tossing out the crucial finding in Roe - that a state has the right to protect "potential life" only after the fetus is deemed viable. …