Roe in retreat?

A pair of gavels last month rained two more blows on the federal law banning partial-birth abortion (PBA). Appeals courts for the 2nd and 9th circuits on Jan. 31 affirmed lower-court rulings striking down the 2003 statute. But the law is not dead yet: The Justice Department had already appealed a similar 8th Circuit ruling to the U.S. Supreme Court.

Despite what looks like a setback, that appeal, set for high-court consideration this month, stands among a number of abortion-related turnabouts across the nation. The confirmations of Chief Justice John Roberts and Justice Samuel Alito have galvanized some pro-life activists and state lawmakers who believe the fresh dose of judicial conservatism may signal the beginning of the end of Roe v. Wade.

New faces on the high-court bench aren't the only things adding intrigue to the PBA ban appeal. Now-retired Justice Sandra Day O'Connor also stirred the pot in the court's Jan. 18 opinion in Ayotte v. Planned Parenthood, a case about parental involvement with minors obtaining abortions in New Hampshire. Attorney General Kelly Ayotte had argued-and the court agreed-that even if one or more parts of New Hampshire's parental-consent law were unconstitutional, the court would not necessarily invalidate the statute wholesale. Writing for a unanimous court, Justice O'Connor suggested that the high court in 2000 might have upheld portions of a Nebraska PBA ban it struck down in Stenberg v. Carhart had the parties asked for, as Ms. Ayotte did, "relief more finely drawn."

The Supreme Court is set to confer Feb. 17 on the federal PBA ban appeal, and could announce as soon as Feb. 20 whether it will accept the case for review.

Meanwhile, in the wake of the high-court reconfiguring, abortion activists and at least one media outlet have suggested that an all-out assault on Roe v. Wade has already begun. A January article in Stateline.org, an affiliate of the Pew Research Center, suggested that "with the Bush administration's reshaping of the U.S. Supreme Court, legislators in at least five states are proposing bold anti-abortion measures with a goal of challenging Roe v. Wade."

From the pro-abortion standpoint, however, the situation isn't quite that dire. Only Indiana and South Dakota are pushing "bans"-measures that would prohibit abortion, except to save the life of the mother-introduced since the composition of the high court changed. (South Dakota lawmakers passed a similar law in 2003, one that was vetoed by Republican Gov. Mike Rounds.)

Lawmakers in Georgia, Ohio, and Tennessee hardly seem on a Roberts/Alito-inspired crusade: Measures that would prohibit abortion in those states were introduced in early 2005, before Justice Sandra Day O'Connor announced her retirement, and have since stalled in committee. The Tennessee ban, sponsored by Republican Sen. Jeff Miller, was quixotic from the beginning, given that the state Supreme Court in 2000 found a "right" to abortion lurking in the penumbras of the state constitution, a ruling that rendered any state law restricting abortion dead on arrival.

Tennessee state Sen. David Fowler believes state constitutions are "the new horizon" for pro-abortion activists. "That's where I think pro-choicers will go, to try and get liberals on state supreme courts to read a right to abortion into state constitutions," he said.

Mr. Fowler has fought since 2001 to amend his state's constitution to allow laws regulating abortion. In Mississippi, a group called the Ultimate Coalition for Unborn Children would go further. The coalition has organized a petition drive that would place on the state ballot a "Human Life Amendment" that would change the state constitution to prohibit abortion, except to save the life of the mother.

"We are organizing and training church and civic groups throughout the state to carry out a targeted door-to-door petition drive," coalition director David Rogers of Biloxi told the Associated Press. "It is very possible that before the Human Life Amendment gets to the Supreme Court that another justice might also retire," Mr. Rogers said.

But not all pro-lifers support such measures. Americans United for Life senior counsel Clark Forsythe called efforts to pass laws that ban abortion outright-including statehouse bids in South Dakota and Indiana-"imprudent in the light of compelling evidence that federal courts will immediately strike them down and invalidate them. While I sympathize with the goal," he said, "those efforts are simply premature."

He argues that a wiser use of resources (including taxpayer monies paid to the American Civil Liberties Union, Planned Parenthood, and other pro-abortion groups when states lose cases) would be to focus on winnable battles. Such battles include the reintroduction in California of a ballot measure requiring parental notification. Voters rejected a similar measure, Proposition 73, by 53 percent to 47 percent during a special election last November. But that election drew a slew of liberal voters bent on dealing a blow to Gov. Arnold Schwarzenegger's reform agenda, of which Prop 73 was not a part.

"It would be foolish to not put [the measure] before the voters in a larger general election," said Algin Rhomberg, a spokesman for the initiative.

In other state efforts, a South Dakota proposal would require abortionists and other clinic personnel to treat patients like, well, patients.

South Dakota Rep. Roger Hunt, a Republican, said a 2005 task force studying abortion learned that women seeking abortions at the Planned Parenthood clinic in Sioux Falls receive scant individual attention. Instead, they listen to taped messages before making their abortion appointment and then, after arriving at the clinic, watch videos about the procedure.

Other than placing their legs in the stirrups on command, patients have little interaction with actual physicians, whom Planned Parenthood imports from other states to perform the abortions, according to Mr. Hunt. HB1216 would require that clinic personnel individually explain to women the "psychological and mental post-abortion problems that women who have had abortions encounter," he said.

Ironically, Dave Gerdes of the South Dakota Medical Association decried Mr. Hunt's efforts to protect women's health as "illegal" and "grossly unfair." This though abortion activists in Ayotte, Stenberg, and cases involving the federal PBA ban have invoked "women's health" and the sprawling and ubiquitous "health exception" as reasons to quash pro-life legislation.

In its 48-page Jan. 31 ruling striking down the federal PBA ban, the 9th Circuit spent 15 pages unpacking the "health exception" definition that sprang from Doe v. Bolton, the 1973 companion ruling to Roe, and has since become like an infinite series of legal nesting dolls, permutations without end. In Doe, the high court "defined health in a unique and expansive way that applies only to abortion law," said Mr. Forsythe, and encompasses "all factors," including physical, emotional, psychological, familial, and the woman's age.

If Roe erected a wall around a woman's "right" to abortion, then Doe has proved handy at guarding the gate. Chief Justice John Roberts joined in the unanimous Ayotte decision that bounced New Hampshire's parental-consent law back down to a lower court based in part on its lack of a health exception. And in the 2000 case Planned Parenthood of Central New Jersey v. Farmer, then-Judge Alito ruled with a 3rd Circuit majority that a New Jersey PBA ban was unconstitutional because it lacked a health exception.

Those rulings may signal that pro-life optimism over Roe's imminent demise is premature.