Using “States’ Rights” to Restrict Abortion

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Using “States’ Rights” to Restrict Abortion

Wendy Norris

Conservative activists are gearing up to enact state laws to restrict abortion. Colorado is once again serving as a political incubator in yet another attempt to chip away at Roe v. Wade, this time in the form of an amendment stating that life begins at conception.

The first in a series of reports exploring the ramifications of the controversial Colorado state ballot measure.

"States rights" has been the battle cry of modern-day social
conservatives over the last 50 years to oppose everything from racial
desegregation and gay marriage to gun control. But no issue has raised culture warrior hackles more than abortion.

Less well-known than the landmark 1973 Roe v. Wade decision, the
Supreme Court’s 1989 ruling on Webster v. Reproductive Health Services
set the stage for a series of state skirmishes on restricting abortion
and influencing public opinion through constitutional amendments,
efforts that continue to this day.

Webster is a Missouri state law that restricts the use of state funding, employees and facilities to provide abortions.

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However, the real test lies in the language. The law added a strict Christian construct to the preamble of the Missouri constitution — that life begins at conception and therefore unborn children have protectable rights.

Now 20 years after Webster became law, a similar initiative is being
attempted in Colorado through a proposed ballot measure to amend the
state constitution:


Be it Enacted by the People of the State of Colorado:

SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read:

Section 31. Person defined. As used in sections 3, 6, and 25 of
Article II of the state constitution, the terms "person" or "persons" shall include any human being from the moment of fertilization.

According to the Guttmacher Institute,
only Missouri has successfully added religiously inspired conception
language to its constitution in an attempt to negatively sway public
opinion on abortion. Despite decades of trying, no other state has
succeeded with this controversial approach. Alabama, Georgia, Maryland,
Oregon, Tennessee and South Carolina attempted either legislatively or
via citizen initiative to codify personhood for fertilized eggs but
every effort was soundly defeated, reports Dionne Scott of the Center for Reproductive Rights.

To Anita Allen,
a University of Pennsylvania professor in both law and philosophy,
states run into trouble with these efforts when they attempt to apply
the conception language.

"The Court has emphasized that Roe v. Wade implies no limitation on
the authority of a state to make a value judgment favoring childbirth
over abortion," says Allen. "The preamble can be read simply to express
a value judgment. A state is free through a referendum, preamble or law
to state that life begins at conception but they don’t have the
constitutional right to regulate abortion or any other practice."

Supporters of Colorado’s proposed ballot measure argue on the Colorado
for Equal Rights Web site that "the simplicity of the text of this
initiative speaks for itself."

However, Allen, an expert on privacy laws and ethics, isn’t convinced
that the measure is not simply a ploy to avoid the much more difficult
persuasion campaign against birth control, emergency contraception,
in-vitro fertilization and, ultimately, abortion itself. That debate
has largely been long lost in the court of public opinion. A November
2006 Ciruli Associates poll reported that 56 percent of Colorado voters are pro-choice, a figure on par with the rest of the nation.

Thus, it would appear Roe v. Wade isn’t going anywhere soon.

"It’s a strategy," says Allen, of the proposed amendment. "And
certainly a moralist could say, ‘I really want to believe that from the
moment of conception life begins and that that life deserves some legal

"But there are huge numbers of fertilized eggs that don’t ever implant
and implanted eggs that spontaneously abort. Plus, it raises the whole
question about eggs that are fertilized outside the human body."

It’s those not-so-simple questions that has some longtime anti-abortion activist groups lending less-than-tepid support.

The Colorado Catholic Conference refuted statements by Colorado for
Equal Rights that the state’s three bishops endorsed the proposal,
according to a February press account.
Further, Jennifer Kraska, executive director of the conference, raised
concerns about the ballot group’s structure, finances and tactics in
she wholly dismissed any possibility of support by the Catholic Church.

Also notably absent is Focus on the Family, the Colorado Springs-based
multi-million dollar ministry and catalyst for much of the evangelical
culture wars over the last three decades.

The prime backers of the ballot measure, namely American Right to Life Action, have a long and ugly history of calling out
its putative allies. One spat last year resulted in National Right to
Life yanking the charter of the state affiliate for attacking Rev.
James Dobson in newspaper ads for not being anti-abortion enough. From
the ashes of Colorado Right to Life rose the hard core American Right
to Life Action, which is heavily engaged in petition-circulating efforts for the group Colorado for Equal Rights.

The splintering of what one would assume are allied groups over this
ballot measure comes as no surprise to Clemson political science
professor Laura Olson, an expert on religion and politics.

"Colorado is a real locus of religious right activism," states Olson.
"There’s lot of folks who are conservative evangelicals — you would
think that this is a core issue. If this initiative is having trouble
getting support, I think it’s a real commentary on how evangelicals are
a lot more politically diverse than they’re given credit for being.
This is not the kind of tactic that a lot of people are going to sign
on to, quite literally."

And that dissension among the ranks of conservative evangelical
Christian and Catholic leadership leads to a whole host of questions —
namely, what if this thing does pass, then what?

Olson believes that the end point — a total restriction on abortion —
isn’t the real goal no matter how clever the political strategy may be
to push for zygote civil rights.

"One of the things about the abortion issue more than any of the other
culture war issues that’s been so interesting is that both sides get
so fired up," she says. "But I don’t think either side wants things to
change in any real perceptible way. It’s a mobilizing tool."

And high-intensity fundraising and voter turnout is what fertilized-egg
activists will be doing leading up to the November election.

But beyond the boots-on-the-ground tactics, Olson raises an interesting
analogy in the national 2004 push to pass state Defense of Marriage
Acts (DOMA) as a strategy to for getting re-election support for
President Bush from anti-gay marriage, religiously motivated voters."
It was the perfect get-out-the-vote strategy for conservative
candidates/causes up and down the ticket by pairing an important
federal race with a red-meat state ballot measure for the GOP faithful
to gnaw on.

So in the context of the "fertilized egg as a person" amendment, if the
Colorado Secretary of State approves the measure for the ballot this
year, will those highly motivated "values voters" sit out the
presidential election or will they if not enthusiastically, at least
consistently, pull the lever for the GOP’s presumptive nominee, Sen.
John McCain, a candidate who has had a great deal of difficulty making
inroads with the conservative religious right?

Which seemingly puts the spotlight squarely on Colorado this cycle — a
traditional political swing state with a boisterous evangelical
activist movement countered by an equally raucous libertarianesque
civil liberties streak. Couple those forces with what is likely to be a
very close 2008 presidential election, in addition to several other
highly partisan state races and ballot measures, that will have the
hard-core politicos salivating in the voting booth.