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 The law was repealed by voter ballot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.

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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.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions


Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.


But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.


The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.


In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Roundups Politics

Campaign Week in Review: Trump Selects Indiana Gov. Mike Pence to Join His Ticket

Ally Boguhn

And in other news, Donald Trump suggested that he can relate to Black people who are discriminated against because the system has been rigged against him, too. But he stopped short of saying he understood the experiences of Black Americans.

Donald Trump announced this week that he had selected Indiana Gov. Mike Pence (R) to join him as his vice presidential candidate on the Republican ticket, and earlier in the week, the presumptive presidential nominee suggested to Fox News that he could relate to Black Americans because the “system is rigged” against him too.

Pence Selected to Join the GOP Ticket 

After weeks of speculation over who the presumptive nominee would chose as his vice presidential candidate, Trump announced Friday that he had chosen Pence.

“I am pleased to announce that I have chosen Governor Mike Pence as my Vice Presidential running mate,” Trump tweeted Friday morning, adding that he will make the official announcement on Saturday during a news conference.

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The presumptive Republican nominee was originally slated to host the news conference Friday, but postponed in response to Thursday’s terrorist attack in Nice, France. As late as Thursday evening, Trump told Fox News that he had not made a final decision on who would join his ticket—even as news reports came in that he had already selected Pence for the position.

As Rewire Editor in Chief Jodi Jacobson explained in a Thursday commentary, Pence “has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs.” Jacobson further explained: 

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a ‘religious freedom’ law that would have legalized discrimination against LGBTQ persons and only ‘amended’ it after a national outcry. Because Pence has guided public health policy based on his ‘conservative values,’ rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

Trump Suggests He Can Relate to Black Americans Because “Even Against Me the System Is Rigged”

Trump suggested to Fox News’ Bill O’Reilly that he could relate to the discrimination Black Americans face since “the system [was] rigged” against him when he began his run for president.

When asked during a Tuesday appearance on The O’Reilly Factor what he would say to those “who believe that the system is biased against them” because they are Black, Trump leaped to highlight what he deemed to be discrimination he had faced. “I have been saying even against me the system is rigged. When I ran … for president, I mean, I could see what was going on with the system, and the system is rigged,” Trump responded.

“What I’m saying [is] they are not necessarily wrong,” Trump went on. “I mean, there are certain people where unfortunately that comes into play,” he said, concluding that he could “relate it, really, very much to myself.”

When O’Reilly asked Trump to specify whether he truly understood the “experience” of Black Americans, Trump said that he couldn’t, necessarily. 

“I would like to say yes, but you really can’t unless you are African American,” said Trump. “I would like to say yes, however.”

Trump has consistently struggled to connect with Black voters during his 2016 presidential run. Despite claiming to have “a great relationship with the blacks,” the presumptive Republican nominee has come under intense scrutiny for using inflammatory rhetoric and initially failing to condemn white supremacists who offered him their support.

According to a recent NBC News/Wall Street Journal/Marist poll released Tuesday, Trump is polling at 0 percent among Black voters in the key swing states of Ohio and Pennsylvania.

What Else We’re Reading

Newt Gingrich, who was one of Trump’s finalists for the vice presidential spot, reacted to the terrorist attack in Nice, France, by calling for all those in the United States with a “Muslim background” to face a test to determine if they “believe in sharia” and should be deported.

Presumptive Democratic nominee Hillary Clinton threw her support behind a public option for health insurance.

Bloomberg Politics’ Greg Stohr reports that election-related cases—including those involving voter-identification requirements and Ohio’s early-voting period—are moving toward the Supreme Court, where they are “risking deadlocks.”

According to a Reuters review of GOP-backed changes to North Carolina’s voting rules, “as many as 29,000 votes might not be counted in this year’s Nov. 8 presidential election if a federal appeals court upholds” a 2013 law that bans voters from casting ballots outside of their assigned precincts.

The Wall Street Journal reported on the election goals and strategies of anti-choice organization Susan B. Anthony List, explaining that the organization plans to work to ensure that policy goals such as a 20-week abortion ban and defunding Planned Parenthood “are the key issues that it will use to rally support for its congressional and White House candidates this fall, following recent setbacks in the courts.”

Multiple “dark money” nonprofits once connected to the Koch brothers’ network were fined by the Federal Election Commission (FEC) this week after hiding funding sources for 2010 political ads. They will now be required to “amend past FEC filings to disclose who provided their funding,” according to the Center for Responsive Politics. 

Politico’s Matthew Nussbaum and Ben Weyl explain how Trump’s budget would end up “making the deficit great again.”

“The 2016 Democratic platform has the strongest language on voting rights in the party’s history,” according to the Nation’s Ari Berman.