Law student Burton developed the personhood initiative.
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.
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."
Because the implications are so far-reaching, abortion-rights leaders say that they're confident all ban proposals will fail. Libertarian Colorado is a long shot, at best. Even among the state's Republicans, a full 50 percent consider themselves pro-abortion rights, according to a 2005 poll. Of all the states, Georgia is most likely to pass a personhood measure, but whether or not the Supreme Court acts—or how—is an open question.
"There are five members of the court who support Roe," insists O'Steen of National Right to Life. And even if that were not the case, many believe that while the court might approve further restrictions on abortion, it would never overturn such a prominent piece of jurisprudence. "The institutional and reputational damage...would be too great," says David Garrow, a historian and expert in abortion law. But young Kristi Burton is just one of many who believe ending abortion is a moral imperative. "I always think right now is the right time to do what is right." Of course, what has brought the country to this point today is that for the past three decades, the abortion-rights movement has felt the same way.
