Abortion Battle At The Crossroads

Analysis: 30th Anniversary Of Roe Vs. Wade Ushers In Critical Era

(CBS)  The ongoing battle over abortion has shifted ground in the three decades since the landmark Supreme Court ruling that made it legal. CBSNews.com's Jarrett Murphy has the story.

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Thirty years after it became legal in the United States, the politics and reality of abortion may be moving in different directions, as the abortion debate expands to cover new territory while the number of abortions shrinks.

Because of these trends, the possibility that a Supreme Court vacancy will tip the balance against Roe v. Wade is far from the sole concern of abortion rights opponents and supporters. Instead, their efforts target state and federal laws that restrict abortions, as well as subtle changes in federal policy that could confer a different legal status to fetuses.

As the debate strays far from the court that made it legal, abortions have declined. The Centers for Disease Control reports there were 862,000 abortions in the 46 states that reported them in 1999, the last year for which statistics are available — an 8 percent drop since 1996. The overall national trend has been downward since 1990.

The cause of that reduction is subject to disagreement.

Kate Michaelman, who heads NARAL Pro-Choice America, said some of the fall-off is the result of increased use of emergency contraception, the so-called "morning after pill," which can prevent conception if used within 72 hours of intercourse.

Darla St. Martin, assistant executive director of the National Right To Life Committee, said abortion rights opponents "have done a good job of educating about what the unborn child is." Technology has also helped, she says, as most mothers now get to see an ultrasound "that brings the reality, the humanity of an unborn child to everyone."

But both women acknowledge the impact of laws at the state level that have imposed waiting limits, parental and spousal notification, and other restrictions on abortion.

"I do think that when abortion is not as readily available, people can't be pushed into it or slide into as easily," St. Martin said. For her part, Michaelman says the hundreds of state abortion restrictions passed since 1995 "make it very difficult for women to effectuate and act on their choice."

Part of the reduction might be due to the fact that abortion providers are harder to find. Researchers at the Guttmacher Institute found an 11 percent decline in the number of abortion providers from 1996 to 2000, leaving 87 percent of American counties without such services. This could be due to lower demand, higher malpractice insurance, or the effect of protests — and threats — on clinics.

State laws also play their part, and state abortion statistics point to uneven access. Abortions took place in only three of Nebraska's 93 counties in 2001, apparently leaving roughly half the population in counties offering no services. In Pennsylvania, statistics from 1996 show that 19 out of 67 counties recorded abortions, with more than 60 percent of Pennsylvanians living in counties that did have abortion services.

Several years ago, some abortion opponents said they would target state laws as a way to drastically reduce abortion without facing the strategic challenge of a full assault on Roe. St. Martin denies there was any end-around.

"Our focus has always been the same," she said. "We want to pass legislation and save as many lives as we can, but we also have a long-range goal, and it's been succeeding."

Republican victories in recent elections have allowed abortion rights opponents to repeat some of their state-level success in Congress and in the federal bureaucracy.

The House has passed laws banning late-term abortion, which abortion rights opponents call "partial birth abortion" and equate with infanticide, four times. The ban would outlaw procedures in which a fetus is partially delivered before it is aborted — unless the doctor charged with violating the law could prove that the woman's life was at stake.

Late term abortion is rare: 98.5 percent of abortions took place in the first 20 weeks of pregnancy, the CDC reports. The procedure used in so-called "partial-birth" abortions is also uncommon, encompassing about 0.17 percent of abortions, according to the Guttmacher institute. The Supreme Court has said "partial birth" abortion is sometimes medically necessary.

The Senate has passed similar bans three times. Twice the two houses sent bills to President Clinton. Twice he vetoed them.

Abortion rights opponents had better luck with the Born Alive Act, which prohibits destroying a fetus that emerges alive from the mother at any stage of gestation — even if it is the result of an attempted abortion. The president signed that bill into law last August.

Now abortion rights opponents are hopeful that the Republican-controlled Congress will enact several key laws during the next session, including another attempt at a late-term abortion ban.

Also on their wish list is a law to prohibit anyone from evading parental notification laws by taking minor girls across state lines for abortions. Another proposal, the Unborn Victims of Violence Act, would treat fetuses as victims of crimes on par with their mothers which some claim would establish a legal precedent for treating fetuses as people.

A top priority, according to St. Martin, is the Abortion Non-Discrimination Act. Federal law already prohibits federal, state or local government from cutting off funding to or blocking contracts with doctors who do not conduct abortions. The Abortion Anti-Discrimination Act would expand this protection to include hospitals, insurance companies and HMOs.

None of the bills directly attack the legality of abortion. But, says Michaelman, "these are all designed to weaken the foundations."

Abortion rights opponents may be enjoying similar success at federal agencies. The National Cancer Institute came under fire this fall for removing from its website information that cast doubt on a suspected link between abortion and breast cancer. Now the website says more study is needed. The NCI denies politics had anything to do with the move.

Last February, the Department of Health and Human Services made unborn fetuses — not their mothers — eligible for prenatal care under the Children's Health Insurance Program. Abortion rights supporters thought this was a stealthy attempt to establish a legal basis for claiming fetuses are persons. St. Martin disputes that.

"What shocks me is that anyone would resist just because they're afraid" it could be used to reduce abortion, St. Martin said.

The recent changes were largely made possible by the elections in 2000, and prospects for additional legislation improved after the 2002 vote — simply put, more Republicans in power means better chances for abortion rights foes. It might be one of the few major issues where a clear division between the parties is still visible.

While most Democrats have embraced welfare reform and the death penalty and many Republicans have softened their stance on gay rights, the party's positions on abortion remain firm.

The GOP's platform supports "a human life amendment to the Constitution" and "the appointment of judges who respect traditional family values and the sanctity of innocent human life."

On the other hand, the Democratic Party's official line is that it "stands behind the right of every woman to choose, consistent with Roe v. Wade, and regardless of ability to pay."

Signs of a split over the issue in the Republican Party have never materialized, but at least four Senate Republicans support legal abortion. That does not worry abortion rights opponents.

"I think the Republican Party has always had both points of view in it. I don’t think this is anything different," St. Martin said. She pointed to the fact that "the vast majority of Republicans are pro-life" and the presence of "some very courageous pro-lifers" in the Democratic caucuses of the House and Senate, such as Sen. Ben Nelson of Nebraska.

The question of which party is more in step with public opinion is an open one. According to a CBS News poll conducted Jan. 4-6, 2003, 38 percent of those surveyed feel abortion "should be generally available to those who want it," while 37 percent think abortion should be available " but under stricter limits than it is now." Twenty-two percent thought the procedure should be banned outright.

Michaelman contends that polls don't reflect actual feelings — that when the public learns the consequences of restrictions on abortion, "they vote them down." Still, concedes Michaelman of her opponents, "They occupy an enormous advantage now."

The biggest worry for abortion rights supporters is the courts. President Bush has already shown a willingness to appoint controversial abortion rights opponents to federal circuit courts, and even to re-nominate judicial candidates rejected by the last Congress.

Especially distressing to NARAL and allied groups is Texas judge Priscilla Owen, whom Mr. Bush has again named for a seat on the 5th Circuit court. Even the White House counsel, Alberto Gonzales, criticized Owen for inserting her own views about abortion into a court ruling when the two were colleagues on the Texas Supreme Court.

Some see these appointments as a forerunner of whom the president might name to the Supreme Court if liberals Ruth Bader Ginsburg or John Paul Stevens or swing-vote Sandra Day O'Connor retires.

"What we are close to in the Supreme Court is not total reversal of Roe v. Wade. What we are close to is a state partial birth abortion bill upheld. The Supreme Court is currently so radical that it does really represent the people of the United States," said St. Martin.

Not surprisingly, Michaelman sees the scenario differently. She said her group is planning a massive mobilization effort to fend off a threat to overturn Roe itself.

"We have a very serious problem here," she said. "It could happen. It really could happen."