THE battle on Capitol Hill over what opponents call
"partial-birth abortions" is just one facet of broad and growing
effort to curb abortion in state legislatures across the nation.
This year alone, more than 200 bills seeking to limit access to
abortion have been introduced in 47 state legislatures. Eighteen
have been enacted.
In the Congress, the abortion issue has surfaced this session in
some 20 different legislative areas - ranging from banning
abortions in US military hospitals to elimination of abortion
coverage in federal employees' health plans.
But the partial-birth or D&X abortion ban stands alone as the
most significant innovation in anti-abortion strategy in recent
years. The bill, expected to pass in the Senate yesterday,
represents the first effort in Congress to ban a specific abortion
procedure since abortion was proclaimed a constitutional right by
the Supreme Court in its 1973 Roe v. Wade decision.
Why has it taken abortion foes in Congress so long to try to
outlaw a particular method? And why has the arena of the entire
abortion battle shifted from the Supreme Court to the legislatures
and the streets?
The answer lies within the Supreme Court itself.
In 1989 and again in 1992, the high court handed down key
rulings that opened the door to abortion-rights challengers to
restrict access to the procedure. The first ruling, a Missouri case
called Webster v. Reproductive Health Services, let stand a law
carrying numerous limits, including a prohibition on abortion in
state facilities except to save the life of the mother. For the
first time, four justices voted solidly against Roe.
Then in 1992, in a Pennsylvania case called Planned Parenthood
v. Casey, the court upheld further restrictions, including one
requiring women to observe a waiting period before having an
abortion. The Casey ruling reaffirmed the central tenet of Roe,
that abortion before viability may not be banned. Viability is the
point at which a fetus can survive outside the womb.
But "the most important fallout from Casey is that it
established a lower standard of scrutiny" for laws seeking to limit
abortion rights, says Janet Crepps, a lawyer at the New York-based
Center for Reproductive Law and Policy. Roe had established a
requirement of "strict scrutiny"; in Casey, Justice Sandra Day
O'Connor put in place a lower standard requiring that laws not
place an "undue burden" on access to abortion. …