Access to Abortion Pared at State Level

By Ceci Connolly
Washington Post Staff Writer
Monday, August 29, 2005

This year's state legislative season draws to a close having produced a near-record number of laws imposing new restrictions on a woman's access to abortion or contraception.

Since January, governors have signed several dozen antiabortion measures ranging from parental consent requirements to an outright ban looming in South Dakota. Not since 1999, when a wave of laws banning late-term abortions swept the legislatures, have states imposed so many and so varied a menu of regulations on reproductive health care.

Three states have passed bills requiring that women seeking an abortion be warned that the fetus will feel pain, despite inconclusive scientific data on the question. West Virginia and Florida approved legislation recognizing a pre-viable fetus, or embryo, as an independent victim of homicide. And in Missouri, Gov. Matt Blunt (R) has summoned lawmakers into special session Sept. 6 to consider three antiabortion proposals.

While national leaders in the abortion debate focus on the upcoming nomination hearings of Judge John G. Roberts Jr. to the Supreme Court, grass-roots activists have been changing the legal landscape one state at a time. In most cases, the antiabortion forces have prevailed, adding restrictions on when and where women can get contraceptive services and abortions, and how physicians provide them.

Antiabortion activists say they have pursued a two-pronged approach that aimed to reduce the number of abortions immediately through new restrictions and build a foundation of lower court cases designed to get the high court to eventually reverse the landmark 1973 Roe v. Wade decision making the procedure legal.

On the other side, a handful of states have approved provisions that make it easier for women to get emergency contraception, known as the "morning after" pill. However, two Republican governors, Mitt Romney of Massachusetts and George E. Pataki of New York, vetoed such bills.

Locally, Maryland Gov. Robert L. Ehrlich Jr. (R) has signed legislation that makes a "viable fetus" a distinct victim of a crime such as murder or manslaughter. Virginia did not enact any laws related to abortion.

"Every year, we see a lot of legislation introduced," said Elizabeth Nash, a public policy associate at the Alan Guttmacher Institute, a research group that specializes in family and reproductive health. "This year, we have seen a lot more action than in recent years. The level of bills enacted has been much higher."

David Bereit, director of program development for the American Life League, which opposes abortion in all circumstances, supports both the short-term efforts and the long-term strategy aimed at overturning Roe v. Wade .

"People are becoming frustrated more progress hasn't been made at the federal level and feel they don't have as much control to change things there," he said. "If we can't outright ban abortion, what can we do to make it less prevalent? We see it's much easier to take up funding and parental notification measures at the state level."

In the meantime, "we want to have cases working their way up in the eventuality Roe would be overturned," Bereit said.

South Dakota has been among the most active states, passing five new laws, including a "trigger" law that would impose an immediate abortion ban after any Supreme Court ruling overturning Roe v. Wade .

Last year, "there was an attempt to engage in a full-frontal assault of Roe versus Wade " with an outright ban, said Brock L. Greenfield, a state senator who is director of South Dakota Right to Life. But similar bills have been found unconstitutional, and Gov. Mike Rounds (R) vetoed the bill on technical grounds.

"This year, the pro-life forces united in order to pass some legislation," Greenfield said. The other measures include stricter parental notification requirements and a provision adding an "unborn child" as a distinct victim to the state's criminal code for charges of murder in the first and second degree. In its new informed-consent law, South Dakota requires physicians to tell women seeking an abortion about the "existing relationship between a pregnant woman and her unborn child," and that all abortions "terminate the life of a whole, separate, unique living human being."

The language in that law was written with the expectation it could be used to "help tear down the wall put up by the Roe versus Wade decision," Greenfield said.

For the small and dwindling number of physicians providing abortions, it has been frustrating to encounter new regulations dictating non-medical requirements such as the width of doorways and the size of hallways, said Steven Emmert, executive director of the National Coalition of Abortion Providers.

"Those opposed to abortion are finding new and different ways to increase the roadblocks and the hoops [that] providers and patients have to jump through," Emmert said.

Missouri, for example, has set aside $1 million to encourage low-income pregnant women to carry a pregnancy to full term and potentially give the infant up for adoption.

"A theme we're seeing this session is for legislatures to go back and put on more restrictions," said Katherine Grainger, legislative counsel at the Center for Reproductive Rights. "They passed all these laws, and now they're saying, 'Let's see what else we can get.' "

Lawmakers in several states toughened existing laws affecting girls younger than 18 who seek an abortion. Today, 35 states require parental involvement of some type, according to a tally by, an online public policy journal funded by the Pew Charitable Trusts.

In its end-of-the-session newsletter, Texas Right to Life hinted at the variety of approaches its side pursued.

Supporters "did not muster the strength to pass any of the multiple freestanding pro-life bills," it noted. However, "several major pro-life victories came in the form of 'under the radar' amendments." Those included measures to shift state money to abortion alternatives and health care for unborn children, stricter parental consent requirements and a ban on third-trimester abortions "when the abortion is not necessary to prevent the death of the woman."

Some antiabortion leaders in President Bush's home state attribute their victories to a shift in the political winds.

"Texas, having gone from Democrat to Republican control, makes it much more possible to get into these issues," said state Rep. Will Hartnett (R-Dallas), who sponsored two successful amendments. "Under the Democrats, these died in committee."

Hartnett, who pushed to change the law from requiring parental notification to requiring parental consent, said the earlier language simply "paid lip service" to protecting minors from an unwise decision.

But Emmert, who represents abortion providers, said that in many circumstances, the girl has been impregnated by a male relative or boyfriend of her mother, making parental consent complicated, if not impossible.

Even in some of the 12 states that have state constitutional protections for abortion rights, legislatures have enacted new restrictions, according to the Center for Reproductive Rights. (The 12 are Alaska, California, Florida, Maine, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Tennessee and West Virginia.)

Not all the restrictive measures came from Republican-controlled states. Democratic governors in Kansas and Pennsylvania signed budgets that steer millions of dollars to organizations that provide alternatives to abortion. And in Oklahoma, Democratic Gov. Brad Henry signed a law in May that requires parental notification for minors, deems a fetus a "victim" under assault laws and mandates that abortion providers give specific counseling relating to the developmental stage of a fetus and a list of groups that support women who choose to carry a pregnancy to full term.

California, once deemed a liberal bastion, will consider a ballot question in November proposing to require, for the first time, that most women younger than 18 notify a parent before getting an abortion and to require physicians to report all such abortions.

© 2005 The Washington Post Company