Advocates and politicians who oppose legal abortion often claim they only want to "send the issue of abortion back to the states," and the current round of state ballot initiatives reinforces the impression that this is the case. But this position is a bait-and-switch tactic that should not be trusted.
Abortion opponents' unabashed goal is to ban abortion throughout the country. Their initiatives at the state level are just one part of that plan. In fact, two of the three measures voters will decide this Election Day are intended to provide a direct challenge to Roe v. Wade and open the door for a national ban on abortion.
South Dakota's Measure 11 would ban abortion except in narrow circumstances, and Colorado's Amendment 48 would define a fertilized egg as a person, which would severely restrict access to abortion, contraception, fertility treatments, and scientific research. In contrast, California's Proposition 4 attempts to limit but not ban abortion by requiring parental notification for minors.
On the surface, these initiatives seem quite different. But while they represent different strategies--an absolutist versus an incrementalist approach--they are all linked by a common agenda: to end legal abortion across America.
California Proposition 4 is endorsed by Americans United for Life, among others. This is an organization that has worked to slowly erode women's access to abortion care with bills that limit available abortion methods after 12 to 13 weeks of pregnancy; require waiting periods, biased counseling, and ultrasound viewings prior to an abortion; create burdensome and medically unnecessary regulations for abortion clinics; assert that fetuses feel pain during an abortion; and allow health care employees to refuse to counsel, refer, or treat patients for any service to which they object.
In other words, Americans United for Life and its allies favor laws that make it exceptionally hard to get an abortion--through cost, distance, stigma, and delay--but do not explicitly ban abortion. It is largely due to such efforts that Mississippi, North Dakota, and South Dakota now have only one remaining abortion clinic each, that 87 percent of U.S. counties do not have an abortion provider, and that approximately one-third of low-income women who want an abortion find themselves forced to carry their pregnancies to term.
Proponents of Colorado Amendment 48 and South Dakota Measure 11, in contrast, hope that if one of these measures passes, it will be immediately challenged in court. Their calculation is that by the time the case reaches the Supreme Court, there will be a majority of justices willing to overturn Roe.
With the current balance on the Court, that is a somewhat risky strategy, but nevertheless a real threat. Four justices are firmly against Roe, but it is not clear if they are all willing to expressly undo the settled precedent. Four justices are firmly in support of Roe, but some of them may retire soon, and whether their successors agree or differ with them will largely depend on who the next president is.
The ninth vote--Justice Anthony Kennedy--currently represents the ideological center of the Court, and it is not easy to predict how he would rule. Based on the decision he authored in the 2007 case Gonzalez v. Carhart, it is clear that he harbors significant misgivings about abortion rights. On the other hand, he did concur in the landmark Planned Parenthood v. Casey decision, a case that both sides thought would mark the end of Roe but instead strongly reaffirmed its core principles.
For these reasons, not all abortion-rights opponents are on board with the absolutist plan. Many fear it is too soon for the all-or-nothing approach. They are concerned that if the gamble does not pay off, the result will be another precedent that affirms the central holding of Roe, which might make it harder to eventually overturn.
What voters should understand is that, regardless of their various strategic determinations, the leaders behind these initiatives are all working with the common goal of undermining Roe in the short term and reversing it in the long term. They have already achieved too much of this plan and we should not allow them to go any farther.
Do not be deceived by the promise that the abortion debate will finally quiet down with Roe's demise. Rather than turning attention, for instance, to providing families with the supports they need to raise healthy children, the antiabortion movement would launch a 50-state referendum on abortion coupled with a national campaign to ban it in the U.S. Constitution or with federal legislation.
The leaders of the movement to outlaw abortion are fully dedicated to the idea that the right to life--or, more accurately, the right to birth--is a fundamental right that should be the law of the land, not just the law in some of the land.
Passing one state initiative will most certainly pave the way for other rollbacks in the states and eventually nationwide. Unless voters in South Dakota, Colorado, and California defeat these measures this Election Day, an abortion ban may be coming soon to a place near you.
Jessica Arons is the Director of the Women's Health & Rights Program at the Center for American Progress Action Fund.