Thursday, March 20, 2003

Abortion debates taken to state level

Opponents work around high court

By Dan Horn
The Cincinnati Enquirer

[photo] Abortion opponent Rudy Fryer, of Mount Washington, marches on Auburn Avenue in front of Planned Parenthood in Mount Auburn on a Saturday morning.
(Steven M. Herppich photo)
| ZOOM |
Despite the U.S. Senate's vote last week to ban so-called partial-birth abortions, most battles over the future of abortion in America are now being waged outside of Washington.

They are taking place in City Council chambers in Cincinnati, courtrooms in Dayton and state legislatures from Ohio to Indiana to Georgia.

More than 330 state laws restricting abortion have been proposed in the United States since 1995, and hundreds of new local laws have won support in communities across the country.

In Cincinnati, City Council recently barred insurance carriers from covering the cost of elective abortions for city employees. In Columbus, the state health department has imposed new licensing rules on abortion clinics.

And in Georgia and six other states, lawmakers are considering bills that critics say would effectively criminalize most abortion procedures.

The activism is part of an increasingly effective strategy that abortion foes devised in the mid-1990s when it became clear they still didn't have the support to ban abortion, either with a constitutional amendment or a major Supreme Court decision.

Their goal now is to fight a series of smaller, more winnable battles at the state and local level while continuing to push for abolition.

Abortion rights activists see the new rules and laws as attempts to undermine a constitutionally protected right. Abortion opponents see them as a common-sense way to regulate abortion and to encourage women to seek other options.

Both sides say the new strategy may be in part responsible for a steady decline in the number of abortions and abortion clinics during the past decade.

"We try to think of ourselves as being pragmatic," said Pat Conroy, president of Right to Life of Greater Cincinnati. "You can make the law so it discourages abortion, so it's not the easy out."

Changing tactics

The strategy began to take shape in the mid-1990s, after the Supreme Court ruled that laws restricting abortion are constitutional as long as they do not place "an undue burden" on the landmark Roe v. Wade decision that legalized abortion 30 years ago.

Since then, state and local lawmakers have tested the meaning of "undue burden" with a wide range of new laws, health codes and licensing procedures.

"That opened the flood gates," said Elizabeth Cavendish, legal director of Naral Pro-Choice America, one of the nation's largest abortion rights groups. "The public wasn't behind them on a constitutional amendment, so they switched their tactics to getting more incremental restrictions.

"It has definitely imposed a burden on women seeking abortions and on doctors providing them."

She said many new laws are little more than harassment, such as a South Carolina licensing rule that requires the temperature inside abortion clinics to remain between 68 and 72 degrees at all times.

Other laws, Cavendish said, represent a gradual erosion of abortion rights. She said those include waiting periods - such as the one in Ohio.

"That's the theme of all of the anti-abortion efforts: restrict access to abortion and wear everybody down," said Al Gerhardstein, a Cincinnati lawyer who represents many abortion providers.

Anti-abortion activists, however, say the new laws have a purpose beyond discouraging abortions. They say the changes have improved safety for women and imposed needed regulations on a business that went too long without adequate government oversight.

An effective strategy

A Supreme Court decision last month illustrates just how effective the new strategy has become.

The case involved an Indiana state law that mandates an 18-hour waiting period for women seeking abortions. The law also requires a woman to be counseled face-to-face about the risks of abortion and to review pictures of what her fetus might look like.

The Supreme Court didn't find it necessary to hear arguments about the case. It simply allowed the law to stand.

The court's decision reinforces the feeling among state and local leaders that they are free to impose a wide range of restrictions on abortion, as long as they stop short of an outright ban.

Abortion foes see this approach as an effective way to limit abortion at a time when a majority of Americans - 57 percent, according to a January poll by the Pew Research Center - still support legal abortion in at least some circumstances.

"The bigger goal is an amendment prohibiting abortion, but how realistic is that right now?" said Chris Monzel, the Cincinnati councilman who pushed for the elimination of elective abortions from employee insurance packages. "The idea is, let's look at state and local regulations. Let's see if we can work around the edges."

The most popular rules - and the first to consistently win approval - are the waiting period laws. Abortion rights activists say the laws, which have been enacted in about half the states, unfairly restrict access to abortion by requiring women to make two trips to a clinic that may be far from their home.

"All of these laws say the same thing," Gerhardstein said. "They say, `Let's make it harder for women to get service.' "

More rules, more debate

The push for new rules and regulations has kept Gerhardstein busy the past few years.

In Dayton, he has argued against an Ohio law banning the so-called partial-birth abortion, a controversial procedure used later in pregnancies. Gerhardstein contends the ban is so restrictive that it would abolish all abortions after the first trimester.

He's also in court in Columbus fighting new state licensing rules that require abortion clinics to obtain "transfer agreements" that guarantee hospitals will accept clinic patients if there is an emergency.

Gerhardstein contends these rules are unnecessary. He said the real purpose is to allow abortion foes to pressure hospitals that are worried about being associated with abortion. If a hospital refuses to sign the transfer agreement, the clinic can't do business.

"It's about intimidation," Gerhardstein said. "It's about forcing doctors out of business so they don't perform abortions."


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