Next Stop, Supreme Court: What Happens If Anti-Choice Ballot Initiatives In South Dakota and Colorado Pass?

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Next Stop, Supreme Court: What Happens If Anti-Choice Ballot Initiatives In South Dakota and Colorado Pass?

Kay Steiger

Is it wise for anti-choicers to bring a direct challenge to Roe to the Supreme Court, as they would if either the South Dakota or Colorado ballot initiative passes? Anti-choice activists are divided on the strategy.

This fall, Californians will vote on a ballot initiative
that would require teens to notify parents before seeking abortion care – a measure
designed to erode the reproductive rights of minors – while voters in Colorado and South
Dakota will vote on ballot initiatives designed to be
a direct challenge to Roe v. Wade. Both
the amendment that would chip away at rights and the amendments that would
strip access to abortion altogether are projects of the anti-choice movement,
but the two approaches reveal fissures within the anti-choice movement about
the best strategy to roll back abortion rights.

South Dakota, a largely
rural and socially conservative state, has already shown itself to be a state willing to offer a test case challenging Roe in the Supreme Court. The state legislature already passed
an outright ban on abortion in 2006. The law was repealed by voter ballot
initiative that same year, but supporters of the ban have gathered enough
signatures to put the anti-abortion measure on the ballot this fall — this time
with an exception for the life and health of the mother, as well as for cases
of rape and incest. Nevertheless, it is a sweeping ban that acts as a direct
challenge to Roe if passed.

Colorado’s proposed amendment is still more expansive than
the South Dakota
ban; it would seek to define as a person a fertilized egg, creating the
potential for the banning of birth control and investigate miscarriages as
murder or manslaughter if the measure passes.

The California
ballot initiative, on the other hand, is much narrower than the outright
challenges to Roe because the California Supreme Court has previously
that parental notification laws violate the state’s constitution. Only a ballot initiative that amends the state constitution could
limit abortion in California.

Roe is gone. The chaos is just beginning.

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Whether it’s wise to bring a straightforward challenge to Roe to the Supreme Court is what anti-choice activists can’t agree on.

Ultimately, the division among anti-choice conservatives centers on
how they interpret the positions of the current Supreme Court justices. To more closely examine
this division within the anti-choice movement, one need only look at a memo
(PDF) written last year by James Bopp,
Jr. and Richard E. Coleson, two socially conservative lawyers specializing in
constitutional law in response to Colorado’s
proposed amendment.

Bopp and Coleson noted that the "equal
protection" analysis that Justice Ruth Bader Ginsburg put forth in the Gonzalez v. Carhart dissent in
2006, in which she wrote that "legal challenges to undue restrictions on
abortion procedures do not seek to vindicate some generalized notion of
privacy; rather, they center on a woman’s autonomy to determine her life’s
course, and thus to enjoy equal citizenship stature," has a potentially damaging
impact on the anti-choice movement. They fear that other justices will begin to
agree with Ginsburg, and that once abortion access is inextricably linked with
a woman’s ability to be an autonomous citizen (as it should be!), the anti-choice
movement would lose all political momentum.

Here’s where the strategy gets tricky. Bopp and Coleson argue that even if
a direct abortion ban, like the one that is on the ballot in South Dakota, passes and reaches the
Supreme Court, the
vote on the Supreme Court these days — Justice Anthony Kennedy — would not be ready to overturn Roe. If that were the case, Ginsburg would be the justice writing
the majority opinion rejecting an abortion ban and outlining in greater detail
what "equal citizenship" means. Bopp and Coleson write that they fear this "new
legal justification for the right to abortion would be a powerful weapon" and
they even think it might lead to the Supreme Court, if they were to rule on a
case that directly challenges Roe,
overturning "parental involvement for minors, waiting periods, specific
informed consent information, and so on."

In other words, the two authors of the memo believe that the anti-choice
movement has a long way to go in "hearts and minds of the public" on abortion
before they can try to directly challenge Roe.
They cite polls showing that banning abortion even in cases of rape and incest remain
unpopular in public opinion polling.

Of course, not everyone in the anti-choice movement buy Bopp and Coleson’s
arguments. An opposing memo
(PDF), written by Samuel B. Casey and Harold J. Cassidy, two architects of the
abortion ban in South Dakota, says that the South Dakota abortion ban is "the
best we may have to overturn Roe for the next ten to fifteen years."
They believe that Kennedy has a history of siding with the anti-choice position
on cases like Webster
v. Reproductive Health Services
, a case in which justices limited state
resources for the use of abortion counseling or services.

Casey and Cassidy began their analysis with South Dakota’s "Task Force" on abortion, a politically
motivated group that attempted to "expose" the problems with abortion.
The report
(PDF) the group issued attempts to establish that many women don’t understand
that they are "terminating a human life" and that abortion can be mentally or emotionally
harmful to the woman
who has the abortion. Casey and Cassidy felt that
Kennedy was extremely sympathetic to the task force’s findings, and they
believe that this new strategy powers the anti-choice side.

Caitlin E. Borgmann, an associate professor at the CUNY
School of Law and former state strategies coordinator for the ACLU’s
Reproductive Freedom Project, said she is surprised that some liberal law professors or
commentators side with the idea that abortion should be left to the states.
"These are women’s lives we’re talking about," Borgmann said, and "these are
the women that don’t have political clout."

Ginsburg’s theory of equal participation as a citizen is
particularly poignant when you examine the lives of low-income women in rural
areas. These women would be the ones most disadvantaged in a state-by-state
strategy. We will be left with a patchwork across the country where abortion is
legal in states like New York and illegal in other
states like South Dakota.
"You would not only have geographic disparity, but you would have this
incredible disparity of income," Borgmann said. "That is incredibly

states, like Louisiana, Mississippi,
and North Dakota even
have trigger laws already in place that would ban abortion if the Supreme Court
made it legal to do so. The only way women could obtain an abortion if they
live in states where they are banned is if they could fly or drive — expensive
options these days — to a state where the procedure is legal. As Linda Hirshman outlined
in a recent column
, the potential new laws get even scarier from there; some could even prohibit crossing state lines to have an abortion.

In a way, letting states decide the issue of abortion is
something of a cop out for the Supreme Court. No Supreme Court justice has ever
been interested in defining an embryo as a person, Borgmann said. If they do
not believe that embryos should get equal protection under the law, letting
states decide seems like a rigged game in which the most disadvantaged women
are likely to lose. "These women will not be able participate equally
in society if they don’t have control over their reproductive lives," Borgmann
said. It would be yet another part of our increasing inequality in America where those
who are wealthy have a more equal life than those who aren’t.