Abortion rises again as election issue

Abortion is on the ballot in several states this fall, in measures that could have profound implications for the national debate on the issue.

In South Dakota, voters will weigh in – for the second time in two years – on a ballot measure that would ban nearly all abortions in the state.

Advocates are optimistic that this time, with added exceptions for rape, incest, and the health of the mother, voters will approve it.

In Colorado, a proposed amendment that could have sweeping implications for abortion, fertility clinics, and stem-cell research would officially define any fertilized egg as a “person” under the state constitution.

And in California, voters are seeing the third effort in four years to enact a law requiring parental notification before a minor can have an abortion.

While it’s not unusual for abortion-related issues to be on state ballots, the South Dakota and Colorado measures, in particular, are far-reaching and could ultimately form the basis of a challenge to Roe v. Wade, if either passes.

Those two measures have also been unusually divisive among the antiabortion community, and they offer a window into the direction that the abortion conversation is headed in the United States.

“Both the South Dakota and Colorado initiatives are really striking at the heart of Roe,” says Nancy Keenan, president of NARAL Pro-Choice America. “Both of them, if passed and there were litigation, would put them into the pipeline to eventually get to the Supreme Court.”

Last month, many pundits were predicting a reignition of the culture wars, as Sarah Palin’s nomination got Americans talking about abortion. But since then, the economic crisis has wiped cultural issues from the pages of newspapers and, perhaps, from many voters’ minds.

“The extraordinary economic events of recent weeks sort of drove them off center stage again,” says Gary Bauer, president of American Values, an antiabortion advocacy group in Washington. In the first two presidential debates, he notes, no questions focused on “values” questions. Still, Mr. Bauer says, “These issues will continue to be powerful, and contrary to the conventional wisdom, I think that long term, they will continue to hurt politically liberal candidates and help conservative candidates.”

In South Dakota, people are voting, essentially, on whether abortion should be legal. In a conservative state that is staunchly antiabortion, it would seem to be a no-brainer. But when voters faced a similar referendum two years ago, they voted it down 56 percent to 44 percent.

Many voters at the time said that they felt the law as written was too unforgiving: Abortion would be forbidden in cases of rape, incest, or the mother’s health. Polling data after the vote caused the law’s advocates to bring it back, this time with exceptions for those cases.

The exceptions made the major antiabortion group in the state withdraw its support, but backers hope that the referendum will be more palatable to voters teetering in the middle. “We’ve talked to a lot of people who said, ‘I voted no,’ and they said, ‘You have rape and incest exceptions. This time I can vote for it,” says Leslie Unruh, campaign manager for VoteYesForLife.com.

Whereas last time opponents of the measure focused almost exclusively on the bill’s lack of exceptions, this time they’ve appealed to the strong libertarian streak in many residents.

South Dakota “is very much a pro-life state,” says Chris Cassidy for the South Dakota Campaign for Healthy Families, which opposes the measure.

“It’s a question of what that means to each individual person. Not everyone who’s pro-life is willing to force their views onto others, and not everyone is willing to put them into government hands.”

Ms. Unruh says her only goal is to change law in South Dakota, but most experts are looking to the inevitable legal challenges. One legal memo from Harold Cassidy (no relation), an antiabortion lawyer in New Jersey, says, “Whatever the make-up of the Supreme Court in 2011, it may well be the best Court we will have for the next ten to fifteen years [to overturn Roe], and even beyond.”

Still, antiabortion groups have been far from uniform in their support of either South Dakota’s or Colorado’s measure, often questioning the timing and legal wisdom of bringing such a direct challenge. Colorado’s measure, in particular, has earned opposition from several Catholic bishops, National Right to Life, and the state’s Democratic, antiabortion governor.

Critics of the proposed amendment have charged that the measure – which would redefine a “person” as any fertilized egg – could have far-reaching and still unknown consequences.

“At a minimum, it would ban all abortions,” including in situations of rape or incest or to save the mother’s life, says Eve Gartner, deputy director of public policy litigation at Planned Parenthood Federation of America. It could also have implications, she says, for the healthcare of pregnant women, in vitro fertilization, contraception, and even tax laws.

“I’m speechless even thinking about the possible permutations this could take if it were passed,” she says. “This would be entering into uncharted territory.”

Kristi Burton, the amendment’s sponsor, counters that the law would only change the definition in three sections of the constitution and that such fears are unwarranted. “This just lays a common-sense foundation” for what constitutes a person, she says.