RH Reality Check: The Abortion Battle – Are Pro-choice Litigators Gun-Shy?

There’s no question that the anti-choice takeover of state capitols has emboldened zealots to aggressively push through as many abortion restrictions as possible. It seems like every day there’s news about the hundreds of bills percolating in state legislatures across the country. Bill sponsors keep upping the ante with proposals that significantly intrude on a woman’s personal medical decision to have an abortion or severely limit her ability to get one. And for many pro-choice supporters, the future for abortion rights seems bleak. Media pundits are stoking the anxiety by painting pro-choice litigators as gun shy.  Slate’s Dahlia Lithwick recently wrote a piece suggesting that the pro-choice movement won’t challenge the new abortion restrictions for fear of losing in the Supreme Court. She writes that the Court’s 2007 decision to uphold the so-called “partial birth” abortion act has “frightened those who are pro-abortion rights into being grateful for what they have.” She then asks, “Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical?” Rachel Maddow also aired a segment that delivered a similar message, concluding that so many of the anti-abortion bills that are blatantly unconstitutional have gone unchallenged because the pro-choice movement has “apparently so far made the calculated decision to let it slide” in order to protect Roe v. Wade from being overturned. Nothing could be further from the truth. We filed a host of new lawsuits last year and will do so again before the state legislative year is up. And the robust fight being waged happens long before we get to court. Throughout the sessions, the Center for Reproductive Rights and fellow advocates work tirelessly to beat back bills as soon as they are introduced, so many never see the light of day. Just this month, the Georgia legislature adjourned without passing a single piece of anti-choice legislation, despite the fact that several extreme measures were proposed and considered. While Georgia’s adjournment was an important milestone, many other legislatures remain in session. Bills are still being introduced, debated, and amended. We are fighting hard so that we don’t have to go to court. But go to court we will when necessary. While the number of anti-choice bills we are tracking this year is similar in number to past years – about 600 – they are some of the most extreme that we’ve seen in decades and are passing at a faster rate than in the past. These bills support the anti-choice movement’s dual strategies:  incrementally restricting women’s access to abortion until it’s virtually unavailable, and passing laws that flatly violate Roe v. Wade in hopes that a challenge to such a law will get to the Supreme Court, allowing the justices to rethink and overturn that historic 1973 decision. So we’re now in the midst of preparing lawsuits to challenge this new wave of unconstitutional abortion restrictions that may pass and take effect later in the year. Our track record for success is strong. Even in recent years, state and federal courts have declared many abortion restrictions unconstitutional and blocked their enforcement. For example, Slate’s Lithwick specifically mentions the emergence of a new trend in ultrasound bills, which require women to view the sonogram image and listen to a verbal description of the image before getting an abortion. While several states are considering these ultrasound bills, only one state has enacted such a measure – Oklahoma. And the Center for Reproductive Rights challenged that law immediately and got a state court to temporarily block it pending a final determination in the case. Like any other movement, we make strategic decisions about when, and with what tools to fight for fairness and equality.  We don’t jump just because the anti-choice zealots say jump. We won’t be baited into a lawsuit. If a state passes a law that impairs women’s access to abortion services, and that fails to meet constitutional standards, it will be challenged — when the circumstances and timing are right. To the extent that states have unconstitutional, and unchallenged, abortion laws on their books, it is because those strategic criteria have not yet been met. That has nothing to do with giving up the fight. It has everything to do with ensuring that we devote our resources to the strategies and goals that best serve women’s health and rights in the long run.

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