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State skirmishes

Abortion | State lawmakers roll back the Roe v. Wade onslaught one hill at a time

Issue: "Hope or hype?," Jan. 20, 2007

The crush of an election year and flashpoint controversies over abortion bans and embryonic stem-cell research took a toll on legislative progress on some life issues in 2006. Meanwhile, resounding success in previous years left lawmakers in many states with fewer options.

Overall, state lawmakers introduced fewer bills regulating abortion and protecting women from its harmful effects, according to Americans United for Life, which tracks pro-life legislation in the states. AUL vice president and legal director Denise Burke pinpoints two reasons for that: "First, election-year debates shifted away from abortion to other life issues, such as cloning, end-of-life concerns, and destructive embryo research," she said. "Second, so much significant state legislation has already passed."

Among some lawmakers "there was a little bit of the thought process, 'We've done everything we need to do' on abortion," Burke said. "Also, I think the whole debate over whether or not we should have abortion bans sucked a lot of air out of the room."

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At least 21 states considered significant bans on abortion in 2006, according to AUL's 2006 legislative sessions report. Among 57 measures banning all or most abortions, the key area of difference was in the types of exceptions provided. Most bills contained an exception only to save the mother's life. Four states-Indiana, Iowa, Louisiana, and Minnesota-added exceptions for health, rape, and incest.

Though most bans never made it out of their respective statehouses, one that did-South Dakota's HB 1215-became the focal point of pro-abortion fire and went down to defeat in a November referendum. Lawmakers had crafted HB 1215 with an end-game in mind: a high-court challenge to Roe v. Wade. That, said Burke, "took a lot of attention away from incremental legislation that can reduce the number of abortions happening today."

But some states did move in that direction, enhancing "informed consent" laws by adding requirements that women be educated about fetal pain and/or be offered the option of seeing their unborn children via ultrasound. Oklahoma enacted the "Unborn Child Pain Awareness Act/Prevention Act," while both Oklahoma and Michigan enacted ultrasound requirements.

Other legislative action included:

  • Pennsylvania further regulated abortion clinics, requiring them to implement a patient safety plan and to begin reporting "serious events."
  • South Dakota now requires that the Department of Health inspect and license abortion facilities.
  • Oklahoma enacted a measure prohibiting public funding of any "entity" associated with another "entity" that provides, counsels, or refers for abortions and prohibiting organizations receiving state funds from counseling or referring women for abortion services. Oklahoma and Utah both upgraded existing parental-notice laws to require parental consent for minor girls seeking abortions.
  • Massachusetts clarified previous laws delineating the types of facilities that may perform abortions after the first trimester, and defining licensing requirements for each type of facility.
  • Vermont passed a law providing "safe havens" at which parents could safely and legally abandon infants, while South Carolina expanded its safe-havens list.
  • Georgia enacted a "conscience clause" law protecting health-care providers and private institutions that object to performing or participating in abortions.

Pro-abortion activists won a few rounds, too. Lawmakers in at least four states-California, New York, Rhode Island, and Washington-considered measures that would create "buffer zones" around abortion clinics, limiting access by pro-life protesters.

Washington's measure became law. Arizona Gov. Janet Napolitano (D) vetoed two pro-life measures passed by the legislature: one, a parental-consent law, the other prohibiting insurance coverage for government employees' abortions. Meanwhile, California lawmakers officially declared that Congress and the president should uphold Roe v. Wade.

Burke said 2007 will likely yield a continuing debate on abortion bans, as well as legislative attempts to improve informed-consent laws. Meanwhile, bioethics issues are likely to again overshadow abortion. "It's interesting to talk with pro-life legislators in states that have done very well on the abortion issue," Burke said. "There's kind of a subtle shift away, as though they're thinking, 'OK, we've shored that up for now, let's go look at these other bioethics issues.'"

But with about 1 million unborn children still dying each year in U.S. abortion clinics, she thinks it's a better idea to work on both bioethics and abortion at the same time.

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