New Abortion Wars

An age-old fight is heating up in the states

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Law student Burton developed the personhood initiative.

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COLORADO SPRINGS, COLO.—If America is racked by a culture war, Starbucks must be neutral territory. Amid the thrum and churn of caffeinated teenagers, antiabortion activists and Christian missionaries Keith Mason and Cal Zastrow sip coffee while they explain to volunteers their plan to overturn Roe v. Wade.

Lattes, it seems, aren't just for liberals. And while activists grinding out hours in the local cafe are nothing new, a nascent grass-roots movement in the antiabortion community is recasting an old fight and pushing abortion back to center stage in 2008. Like many morally opposed to abortion, Zastrow, 47, and Mason, 26, are disillusioned by self-described pro-life politicians and powerful advocacy groups like National Right to Life, which have achieved success only in restricting abortion access. Now, the two are rolling across the Rockies in a worn Kia station wagon to train volunteers and stoke passion for a petition drive to amend the state Constitution.

The idea is as simple as it is bold. Developed by a deeply religious 20-year-old law student, Kristi Burton, the initiative declares a fertilized egg a "person" who enjoys "inalienable rights, equality of justice, and due process of law." Intended as a direct challenge to Roe, the proposed amendment mentions nothing of the implications for banning abortion or some birth control. Over opposition from abortion-rights supporters, the language sailed through the state Supreme Court on a 7-to-0 vote. And it is a virtual lock to make the ballot.

So, when voters step into the booth next November to select a president, they'll also very likely be voting on whether to thrust Colorado into the newest theater of abortion's long war. "The fight is coming to the states," says Kathryn Wittneben of NARAL Pro-Choice Colorado, which is preparing for a massive countercampaign. Support for similar "personhood initiatives" is swelling in Georgia, Mississippi, Wisconsin, Michigan, Montana, and Oregon. And 11 outright bans on abortion—similar to South Dakota's headline-grabbing measure in 2006—were introduced in state legislatures last year. Many are in conservative states where antiabortion forces dominate: Alabama, Mississippi, and the Dakotas among them. And all are designed to challenge Roe before the recently realigned Supreme Court. The bills could see action as state legislatures reconvene early this year. "What we're seeing now is not just the chipping away at protections of Roe v. Wade," says Nancy Northup, president of the Center for Reproductive Rights, "but a full-scale attempt...to recriminalize abortion."

Incremental moves. Roe turns 35 this month, and, according to a recent Gallup Poll, it has the support of 53 percent of Americans. But most also favor the types of incremental restrictions that have been won by antiabortion groups led by National Right to Life. The government restricts funding of abortions for women on Medicaid. Thirty-one states require counseling or a waiting period, while 44 states require parental notification for minors. And in 2003, Congress passed a "partial-birth" abortion ban. "All these things are saving lives," says David O'Steen, executive director of National Right to Life.

But the numbers still outrage abortion foes. In 2004, the most recent year for which data are available, about 840,000 abortions were reported to the Centers for Disease Control and Prevention. And that number excludes California. From 1973 through 2002, at least 42 million abortions occurred in the United States. For activists like Zastrow, measures that simply regulate abortion are hardly worth celebrating. In a jab at National Right to Life, Zastrow says, "We didn't regulate Auschwitz. We abolished it."

Whether or not abolishing Roe is even possible is fracturing the antiabortion camp. When conservative Justice Samuel Alito replaced retiring pro-abortion-rights Sandra Day O'Connor in 2006, some anti-abortion activists believed their time had come. Most legal experts still counted a 5-to-4 majority supporting Roe. But others considered Justice Anthony Kennedy a potential swing vote—should a case present itself. Legislators in South Dakota, who had attempted an abortion ban a year earlier, quickly passed another ban to send a test to the Supreme Court. But abortion-rights groups rallied to move the measure to a public ballot. National Right to Life, which has cultivated a mainstream image, stayed clear of the fight, infuriating many in its grass-roots base. South Dakotans defeated the measure. Now, antiabortion activists believe lessons learned from South Dakota could lead to victory in other states. Among those lessons: knowing they shouldn't count on National Right to Life.