What the Left Didn't Do

Terri Herring is on a mission from God. Twenty years ago, the Mississippi resident, as a young, stay-at-home mom, headed “from the kitchen sink to the state capitol” to persuade lawmakers to restrict access to abortion. She and her friends celebrated their first victory that year when, in 1986, Mississippi passed a law requiring physicians to obtain written consent from both parents before performing an abortion on a minor.

Now president of Pro-Life Mississippi, an independent advocacy organization in Jackson, Herring can say much of her mission has been accomplished. Over the past 20 years, Mississippi has enacted legislative initiatives that restrict access to abortion or lay the legal framework to overturn the right to abortion. Stacked on top of one another, the laws effectively bar access to abortion for many young, rural, and poor women -- the same women who often need access to abortion the most.

Herring and her friends had help and guidance from Americans United for Life, a nonprofit law firm in Chicago that has pushed to end abortion through an “incremental” approach -- as opposed to a “frontal assault” championed by other groups -- ever since the Supreme Court legalized the procedure in 1973. The group has dubbed Herring's state the “Mississippi Miracle” and uses it as a model for other states in “Defending Life,” its 2006 guidebook to further restricting access to abortion via state laws.

In Mississippi, there is an opposition: State chapters of the National Organization for Women (NOW) and the American Civil Liberties Union have fought to preserve access to abortion alongside their other civil-rights goals. But many pro-choice activists operate on their own, as does Deirdra Harris Glover, webmaster -- and “president by default” -- of www.prochoicemississippi.org, an online clearinghouse of abortion-related information. “We're about as grass roots an organization as they come,” she said, sneaking an electronic response to a reporter's query while at her day job.

Pro-choice activists like Glover rely on help from NOW and the ACLU, but both have relatively few resources and a long list of other priorities, said Susan Hill, who owns the last remaining abortion clinic in Mississippi. Indeed, Mississippi pro-choicers say they have no equivalent to Americans United for Life, which provides anti-choice activists with models for state bills and offers free legal advice. And there is no state chapter of NARAL Pro-Choice America, the country's leading abortion-rights lobby, nor are there affiliates in Alabama, Tennessee, or Louisiana. The Planned Parenthood Federation of America -- which combines family-planning services with advocacy and education efforts -- has two “express” clinics in Mississippi, but neither offer abortion.

Nationwide, NARAL Pro-Choice America has chapters in 29 states. Its closest counterpart -- the National Right to Life Committee -- has affiliates in all 50 states. Precise comparison of resources is difficult, but one thing is clear: Opponents of abortion rights are prevailing in the state legislatures. Pro-choice activists readily acknowledge the remarkable success their opponents have had. In its 2006 state-by-state report card, NARAL Pro-Choice America gave 27 states an F or a D for their records on reproductive rights and 17 states an A or a B.

The problem isn't that pro-choice women's groups are neglecting the states. They are indeed paying close attention to them, focusing on initiatives that prevent pregnancy, improve health insurance coverage of contraceptives, and expand access to birth control and emergency contraception. And there have been some victories on legislation directly related to abortion, such as laws that require state governments to cover abortion under Medicaid and that protect clinics from blockades, harassment, and violence.

Yet when it comes to abortion, the pro-choice movement has yet to mount an incrementalist counterattack to try to use state laws to build a sanctuary around abortion. To the contrary, they have largely taken a defensive posture, fending off anti-choice legislation rather than working to introduce initiatives of their own that could preserve, or even improve, access to abortion. “Our pro-choice side has been tremendously deficient in using that strategy,” said Hill, who has worked in the field for 33 years. “There could have been opposing legislation in all of the states against every one of these restrictions, but the pro-choice movement as a whole has not focused on that. We've really played defense instead of offense.”

Larry Rodick, president of Planned Parenthood of Alabama, agreed. “Nationally, Planned Parenthood and other pro-choice organizations like NARAL try to work together on things like that,” he said. “But the difference is that the anti-choice people are much more organized on the local and state level. … Their agenda is to get inroads into every level of American politics, and they're doing a pretty good job of it.”

* * *

The anti-choice incrementalists have had their greatest success in the South and Midwest, with a strategy of veritably drowning state lawmakers with proposals for legislation. So in Mississippi's 2006 legislative session, which came to a close in April, anti-choice legislators introduced 14 measures designed to restrict access to abortion, but pro-choice legislators (yes, there are some) introduced no initiatives that would improve access to abortion or enhance reproductive health.

Together, the states and the District of Columbia have passed a total of 437 anti-choice laws between 1997 and 2005 -- compared to 296 pro-choice bills enacted in the same period, according to NARAL Pro-Choice America. And while the anti-choice tally reflects a broad spectrum, limiting access to birth control and mandating abstinence-only sex education, the pro-choice tally is even broader, encompassing laws aimed at everything from cervical cancer awareness programs to teen pregnancy prevention. As for major legislation related specifically to abortion, states have enacted 194 major restrictions on abortion compared to 39 major laws that protect access, according to a tally based on NARAL Pro-Choice America's research.

The pro-choice movement's relative inaction on abortion-related legislation in the states is especially confounding given the fact that if the Supreme Court ever does overturn Roe v. Wade, the battle over abortion will shift entirely to the state houses. In that case, anti-choice activists, who have used state legislatures as laboratories to test policy options and fine-tune legal language and as staging grounds to build support among the public, will unquestionably hold the upper hand, say advocates on both sides of the issue.

Anti-choice activists will have a “distinct advantage” if the Court ever overturns Roe, Herring said. “Lobbying is one of those things that experience is really your teacher.” Hill agreed: “It puts us at a disadvantage because we've really focused on national issues in Washington,” she said. “It means that the pro-choice movement has to really change all of its tactics.” Karen Cooper, executive director of NARAL Pro-Choice Washington, agreed. “There may down the line be a problem,” she said. “It'll take some training, but we pro-choice people are quick studies.”

In the meantime, however, pro-choice legislators say they could use more help in the states. “National groups working with their state counterparts could become more assertive … in getting out the message and assisting at the local level to put together model legislation,” said Elaine Roberts, a Democratic legislator from South Dakota, which recently enacted a law that bans virtually all abortions. Roberts couldn't recall an instance in which a pro-choice group recommended a legislative proposal to be introduced in the state House -- a tactic commonly used by anti-choice groups.

There are a variety of reasons for comparative inaction at the state level. Some pro-choice activists, like NARAL Pro-Choice America president Nancy Keenan, say it's due to Republican control of state legislatures gained in the 1994 elections. (Today, however, Republicans control 20, the Democrats 19, and anti-choice laws have passed in both). Others say potential activists are scared of violence from those who oppose abortion rights and by the stigma of supporting the procedure in public; that pro-choice activists are emotionally, physically, and financially exhausted; that pro-choice groups have a broader agenda than their rivals; and that they see the solution in the courts rather than in the legislative arena. Still others cited a general complacency ever since abortion was legalized. “The pro-choice people after Roe v. Wade in 1973 decided they had won the ballgame and are sitting back thinking it will always be there for them, and it may not,” Rodick said. “They might have to lose it before they realize it.”

* * *

Abortion losses began almost as soon as Roe was decided. In 1976, Congress passed a law named after Congressman Henry Hyde of Illinois that laid the groundwork for the anti-choice incrementalists' strategy. The law allowed the federal government to exclude most abortions from Medicaid, the government health-insurance program for the poor. States followed suit; today, 33 states and the District of Columbia prohibit public funding for most abortions. Some states make exceptions for pregnancies that endanger the health of the woman or involve fetal abnormalities, and most make exceptions for pregnancies that are the result of rape or incest. All make exceptions for pregnancies that endanger the life of the mother.

But it wasn't until 1992 that incrementalists won the right to pursue restrictions en masse. That year, the Supreme Court upheld the basic right to abortion but permitted restrictions that did not pose an “undue burden” to abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

State legislators happily took the leeway given them, passing laws that ran the gamut from requirements forcing minors to involve one or both parents before deciding to have an abortion to the required distribution of state-approved but medically specious information about abortion. States also have passed bills that mandate waiting periods before abortions can be performed; that allow providers to refuse to perform abortions for personal reasons; that gag officials at institutions that receive state funds from counseling about abortion; that impose onerous regulations on abortion clinics; and, as was seen in South Dakota, that ban virtually all abortions in the state. Together, these laws have, in places, made abortion access resemble the pre-Roe period.

States in the South and Midwest generally have tightened access more than those on the coasts. North Dakota, for example, has one of the strictest parental consent laws, requiring minors to receive written consent from both parents before having an abortion. In Minnesota, women must receive in person or by phone information approved by the state about alternatives to abortion, the ability of a mid- and late-term fetus to feel pain, and some purported risks of abortion, such as the unproven claim that induced abortion makes a woman more susceptible to breast cancer. (The American Cancer Society, the National Cancer Institute and the World Health Organization have denied that claim.) And Kentucky is one of four states that ban private insurance companies from covering abortions except when the life of the mother is at risk, forcing all women to pay for the procedure out of pocket.

Laws known by critics as TRAPs (Targeted Regulation of Abortion Providers) have been effective in shutting down clinics, notably in Mississippi, where five of the state's six abortion clinics have closed since the 1990s. The regulations -- all 35 pages of them, often more stringent than those for other medical facilities -- offer everything from the size of the parking lot to the width of the hallways to the temperature of the water in clinics. Supporters say the laws make abortion safer. But opponents, noting that abortion is already the safest gynecological surgical procedure performed in the United States, say they are designed to shut down clinics, which in fact they have done by driving up operating costs.

Pro-choice activists are learning from their rivals, said Gretchen Borchelt, counsel at the National Women's Law Center, a liberal women's rights advocacy group in Washington, D.C. “We are trying to be creative and innovative in the way anti-choice groups have been,” she said. The National Network of Abortion Funds, for example, is marking the 30th anniversary of the Hyde amendment this year with a campaign to restore Medicaid funding of abortion in the states.

But by and large, pro-choice groups are not putting their muscle behind state initiatives to protect abortion. Rather, they are pursuing a two-part strategy: push laws that prevent pregnancy, which they say enables them to reach out across ideological lines, and drive a political campaign to elect more abortion-rights supporters to all levels of government. “In our states, especially where we have affiliates, we are working on legislative races, attorney general races and governor races,” Keenan said. “In addition, 2008 will be critical.” To these activists, polls and politics are on their side. And they may have a point. In South Dakota, pro-choice activists have gathered 37,000 signatures -- more than twice the number needed, the Los Angeles Times reported -- to place an initiative to overturn the state's abortion ban on ballots this November.

But some experts caution against placing all bets on politics: Abortion is rarely a defining issue in general-election campaigns for state or federal office and probably won't be unless the Supreme Court considers legislation that would ban the procedure, said Wendy Schiller, a professor of political science at Brown University. “It's hard to mobilize around the issue when abortion is still legal,” she said.

In the meantime, some activists say the pro-choice movement should take a page from their opponents' playbook and fight the anti-choice movement on its strongest turf -- the states. “There's the opportunity at the state level to make a difference,” said Stephanie Poggi, executive director of the National Network of Abortion Funds. “The pro-choice movement has not done that to the extent that we need to.”

Allison Stevens is Washington bureau chief of Women's eNews.

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