Flashback: Here Comes John Roberts, There Goes Roe v. Wade

Ayotte v. Planned Parenthood is only the start

Ayotte is far from the only abortion-related case in the pipeline. In the hope that Bush will succeed in appointing two justices who will rule against Roe, opponents of choice have been laying the groundwork for a Supreme Court test case for more than a year. “With the court in transition, anti-choice forces are aggressively putting through legislation that could be used to test Roe v. Wade,” explains Nancy Northup, president of the Center for Reproductive Rights. Indeed, in just the first five months of this year, 20 states enacted 27 laws designed to restrict access to abortion and reproductive health.

While many of the possible challenges to Roe aim merely to weaken or undercut the right to abortion, even the most optimistic on the pro-choice side are grappling with the possibility that the ruling could fall altogether. If it does, decisions about choice would revert to the states, some 30 of which stand to take abortion rights away, according to a report by the Center for Reproductive Rights. For service-providing groups, much of the preparation for this possibility consists of logistical problem solving. “We have people trying to answer questions like 'How will our clinics in bordering states help women who will have to start traveling? And what do we do when a woman shows up on our doorstep bleeding' ” from a self-induced abortion, says Planned Parenthood's Berner.

Others are working to strengthen state laws that would protect abortion. The Center for Reproductive Rights has been poring over state constitutions and laws to see what past measures might possibly be resurrected post-Roe. “It's going to be incredibly important not just to make sure that we can remove the old laws but also to continue to move forward when one can,” says the center's Northup. And while six states already have “trigger laws” designed to outlaw abortion if Roe is overturned, the center is pondering how to create what might be called reverse-trigger laws, which would kick in to protect abortion rights. The center's lawyers are working with legislators and attorneys general to strengthen and protect the right to abortion by passing legislation and updating state constitutions. At the same time, they are looking at ways to defang anti-abortion laws that have been on the books since before 1973.

Even while pro-choice groups are scrambling to figure out what will happen state by state, they may have to pay as much attention to what's going on in Congress. “It's going to be worse than it was pre-Roe,” warns Gloria Feldt, author of The War on Choice. “Then the fight was only at the state level.” Already Senator Rick Santorum, a fierce opponent of abortion, has said he would support legislation that would make it illegal to cross a state line to get one if Roe were overturned.

Advocates don't have time to worry about such a law yet, though. For now, most are using their energy to prepare for the imminent crises. This defensive stance leaves little time for being thoughtful about the future, according to Wendy Chavkin, chair of the advocacy group Physicians for Reproductive Choice and Health.

“We've certainly realized since the last election how critically important it was to have a long-term strategy,” says Chavkin. “The problem is that we're so busy fighting brush fires that we have no time to come up with one.”

Sharon Lerner is a senior fellow at the Center for New York City Affairs at Milano Graduate School at the New School.

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