New Abortion Wars

Law student Burton developed the personhood initiative.

The frustration with the incremental gains championed by National Right to Life is perhaps most palpable in Colorado. The state chapter was kicked out last year after sharply criticizing the national group's failure to back the growing push for abortion bans or initiatives that grant rights to fertilized eggs. Brian Rohrbough, a former president of Colorado Right to Life whose son was killed in the Columbine massacre, assails what he sees as the country's "culture of death" and calls the national organization "one of the enemies of everything I do." The abortion restrictions to date "are not victories," he says. "These entrench abortion. If anything, they make it more palatable." O'Steen says Right to Life believes Roe should be overturned, but with this court, at least, the group regards that as unlikely. It focuses its efforts on legislation it thinks can be upheld—"to save those children we can." In short, observers say, the group fears that hard-line tactics are so extreme they could endanger the whole movement.

So state activists are going it alone, newly motivated by the Supreme Court's upholding of the controversial 2003 federal Partial-Birth Abortion Ban Act. Kennedy's vote with the majority thrilled many antiabortion activists and lent support to the belief that after siding with the plurality in the last major challenge to Roe in 1992, Kennedy is ready to switch sides.

Brian Rooney of the Michigan-based Thomas More Law Center, which has provided legal support to many of the personhood initiatives, brings up another piece of the calculus: the strong chance that the next president will be a Democrat appointing abortion-rights judges. "If any time is the right time to overturn Roe, it's now."

Having abortion bans on the ballot is also a way to drive conservatives to the polls in critical swing states, as Colorado will most likely be in 2008. Even in Republican Georgia, the proposed personhood amendment is considered politically strategic. If the Republican nominee is "a less-than-stellar conservative," such as Rudy Giuliani, "it could hurt your down-ballot races," says Martin Scott, a state representative who is sponsoring a personhood amendment. "With an amendment like this, it would drive up the pro-life, traditional-values voter."

Or it could further drive away moderates. Many abortion-rights leaders regard the personhood proposal as an act of desperation with no chance of passage. Like fringe activists who blockaded clinics or attacked abortion providers a decade ago, these proposals could be perceived as overreaching by mainstream America and marginalize the antiabortion movement—exactly what National Right to Life has sought to avoid.

Burton says the proposal seeks only to "define what life is under Colorado law." It's not criminal legislation, but it would open the door to a full abortion ban. It could also affect contraception used by millions of women, like the IUD or the morning-after pill.

Eggs with rights. While both methods are designed to prevent fertilization, they also work to keep a fertilized egg from implanting in the uterine wall and growing. If every fertilized egg were deemed to have rights, such contraception could be jeopardized—and the doctor who prescribes it or the woman who uses it criminalized.

"Personhood" rights for fertilized eggs would also pose a risk to invitro clinics, which routinely create and freeze multiple embryos to increase the chances of pregnancy. Some of those embryos die in the process, and some fertilized eggs naturally pass through the woman without implanting. Burton and Rohrbough both say they seek to end only the intentional termination of a fertilized egg. Extending the rationale for the ban leads to the question: What happens to a woman who is deemed to have somehow prevented a fertilized egg from implanting? Scott says, "The taking of a life, no matter how old or how young, demands justice."