Pro-life advocates increase, but abortion remains complicated and divisive
A growing schism
When surveys ask Americans to pick the most important societal issues, a very small segment always puts abortion at the top.
"Americans care about jobs, the economy, education," Hall says. "But interest groups are active in America; they push these kind of bills out."
But pro-life interest groups are growing a bit more divided on their approach, as one side presents incremental laws they believe will create slow, but sustainable changes, while the other side presents bills that will almost inevitably result in lawsuits and thus, they hope, challenges to Roe v. Wade before the Supreme Court, Jelen says.
Before any such bill could succeed there, however, Spaulding Balch says they have to be sure they'll have five justices on their side. Experts say Justice Anthony Kennedy is one of the most powerful men in the country, as it's his swing vote that both sides want on issues like this.
Parental consent — a law in 21 states — is one type of incremental law, which requires that one parent be aware and give consent for an abortion in girls younger than 18. Utah now requires counseling, then a 72-hour wait period before an abortion can be performed. South Dakota's similar law last year is being challenged in the courts.
In Arizona, Oklahoma and Pennsylvania, bills explicitly ban sex-selective abortions, something the House on Thursday rejected. Before the vote, opponents warned it could prompt scrutiny of women seeking abortions based solely on their race.
Fetal pain bills, which exist in seven states, illicit similar heated responses, as they ban abortion at 20 weeks by relying on what some say is shaky medical evidence that a fetus can feel the pain of the procedure.
And Ohio has earned national attention for its "heartbeat bill," which passed in its House last June and is awaiting action by a Republican-controlled Senate. It would outlaw abortion after a heartbeat is detected, which can be as early as six weeks. Many of these bills are only possible because of technology, says Spaulding Balch. When Roe v. Wade passed, ultrasound didn't exist. Those images, so common now, have "changed everything," she says. "People have pictures of their grandchildren and children as early as a few weeks on their refrigerator. Ultrasound has opened a window to the womb."
That's why some abortion opponents support bills that require screens to be viewable, if desired, to a women who is having a pre-abortion ultrasound to date the pregnancy. Louisiana just passed a law that requires doctors to offer women the chance to hear the baby's heartbeat during a pre-abortion ultrasound. Women can refuse.
"This is an important part of informed consent, (and gives) the woman the same objective medical information that the doctor has," says the bill's author, Dorinda Bordlee, senior counsel at Bioethics Defense Fund, a public interest law firm that advocates for human life.
"So we're putting in reasonable measures of informed consent and giving women information ... before they go down this very, very painful road ... that may help them choose life."
But there's still disagreement over how to define life.
Controversial personhood amendments would declare that life beings at the moment of conception and thus criminalize abortion (including in cases of rape or incest yet excluding some medial emergencies), as well as some birth control, including IUDs. Such amendments have been proposed by legislators in a handful of states, and in others, advocates are gathering signatures to put the question on upcoming ballots. Mississippi rejected such a proposal in November.
Despite significant controversy, these bold proposals may actually be helpful, says Borgmann, because they "portray the (pro-life) movement for what it is."
"Anti-abortion is not about these incremental restrictions," she says. "They've always been steps on the way to the ultimate goal of outlawing all abortions." She says some are growing impatient with an incremental strategy.
But there's a winning strategy in the making, says Bordlee, who has litigated pro-life legislation for 17 years.
"Like in every effort, there are different schools of thought," she says. "Some are more aggressive than others, but we have to be careful that aggressive doesn't become reckless."
In her mind, the best laws will be both pro-women and pro-child.
"We really believe you can't separate the two," she says. "What is good for the woman is good for the baby, and we can find more humane ways to help women in unplanned pregnancies than put them through the trauma of abortion and death of their babies."
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