There has long been a debate raging within the anti-abortion movement between those who have mapped out a careful strategy to slowly chip away at Roe v. Wade through incremental restrictions on abortion and those who want to launch legal broadsides against abortion rights in the hopes that one will take Roe down once and for all.
The incrementalists will have their big day in court on March 2, when the Supreme Court hears arguments in Whole Woman’s Health v. Cole, a challenge to a set of laws in Texas that seeks to cut off access to legal abortion even as the procedure remains legal. Whole Woman’s Health is the culmination of a decades-long strategy by groups like Americans United for Life to choke off abortion access by creating unnecessary regulations on clinics. These groups are also hoping to get the Supreme Court to reconsider Roe in the form of laws banning abortion after 20 weeks of pregnancy, just before when the court has said that abortion bans are legal.
But those who want to find a silver bullet to end abortion rights completely just had a day in court too … and it didn’t go well for them.
The Supreme Court today declined to hear an appeal of a lower court ruling that struck down North Dakota’s “fetal heartbeat” law, which would have banned abortion at about six weeks of pregnancy, before many women even know that they are pregnant. The law was clearly unconstitutional — one prominent anti-choice lawyer has called such efforts “futile” — but North Dakota Gov. Jack Dalrymple said that it was an “attempt by a state legislature to discover the boundaries of Roe v. Wade.”
The boundaries of Roe v. Wade, it turns out, however much they may be weakened by incremental restrictions, still prevent banning almost all abortions.
Yet today’s rejection is unlikely to halt the efforts of “heartbeat bill” crusaders, the most prominent of whom is Religious Right activist Janet Porter, who is currently running for the legislature in her home state of Ohio in an effort to push such a bill through.
A Republican state legislator in North Dakota who used a smartphone app to send unsolicited explicit photos to another man has revealed that he is bisexual after the recipient leaked the photos to the press.
The Forum, a North Dakota-based newspaper, reported that the man who received the photos from the lawmaker, Randy Boehning, was upset that Boehning had voted against a sexual orientation nondiscrimination bill.
According to a voter guide [PDF] issued by the North Dakota Family Alliance, the state affiliate of the Family Research Council, Boehning said he supports North Dakota’s constitutional ban on same-sex marriage and opposes laws barring discrimination on the basis of sexual orientation and gender identity. He also said he opposes “adding ‘sexual orientation’ to the list of criteria used to determine anti-bullying policies in our public schools.’”
The exchange came to light when Dustin Smith, a 21-year-old Bismarck man with no known connections to the Capitol, contacted The Forum earlier this month, saying he recognized Boehning from a gay dating smartphone app called Grindr. Chatting under the user name Top Man!, Boehning sent Smith sexually suggestive messages and, in the early morning hours of March 12, an unsolicited photo of his penis, according to exchanges reviewed by The Forum.
"How can you discriminate against the person you're trying to pick up?" Smith said in a recent interview.
Boehning, who is not married, said there are people who know he is gay, but many of his family members and friends do not. He said Saturday he is also attracted to women and was relieved to come out because he no longer has to worry about being outed.
"The 1,000-pound gorilla has been lifted," he said. "I have to confront it at some point."
Gualberto Garcia Jones, the prominent anti-choice activist who drafted all three losing “fetal personhood” ballot measures in Colorado, is calling on his movement to abandon state-level ballot initiatives in favor of local initiatives that might have a better chance at passing.
Jones’ post-election analysis is likely to exacerbate an already bitter split within the personhood movement. Jones, who previously worked for the Colorado-based Personhood USA — which is dedicated to pushing state-level initiatives — recently defected to the newly created Personhood Alliance, a network of “personhood” groups that announced before the election that it would be pursuing a local-level strategy. Although Personhood USA at first supported Personhood Alliance, it soon distanced itself, accusing the new group of infringing on its territory.
In an article on Friday for LifeSiteNews, Jones followed up on his prediction that last week’s elections would “either collapse or ignite” the personhood movement. Huge losses on personhood amendments in Colorado and North Dakota, he wrote, mean that statewide ballot initiatives “dead for now.” Rather than fighting for personhood at the state level, Jones wrote, the movement should start “engaging the enemy in municipalities and counties that we know we control.”
The rest of conservative America may be celebrating, but for the Personhood movement, it is time for some sober analysis.
Tuesday’s election results were certainly not good for pro-abortion Democrats, but they were even worse for the Personhood movement. I have to admit that my own predictions were off and I am sorely disappointed.
After the defeat of Measure 1 in North Dakota by an unexpectedly wide vote of 64-36 and of the Brady Amendment in Colorado by an almost identical margin of 65-35, it isn’t an overstatement to say that the statewide personhood ballot measure is dead for now.
Had the Brady Amendment performed just a little better and the North Dakota amendment passed or been close to passing, then the claim could be made that the movement was growing and that there was a realistic chance of passing a personhood amendment in another state in the near future. As it is, the crushing defeat of the North Dakota amendment and the lackluster improvement in Colorado should make Personhood supporters stop to think about the strategy going forward.
Thoughtful reconsideration of the strategy of the Personhood movement is what the movement needs right now.
It should be noted that the same goes for the entire pro-life movement. The narrow victory of the Tennessee amendment that safeguards the right to legislatively address abortion, is a victory, but the bar is set painfully low.
These initial years of the personhood movement have taught us a lot. I believe that we now know how to fight to win against Planned Parenthood. And the key is being able to control the battleground.
When you look at electoral maps of the country, it is readily evident that majorities in almost every metropolitan area of the country are opposed to our worldview. These metropolitan areas are also the major media centers and accumulate large percentages of the voting population in every state.
Right now, fighting the abortion industry at the state level is akin to having lined up a battalion of colonists against the well-trained and well armed redcoats. We need to start engaging in more asymmetrical tactics, and this means engaging the enemy in municipalities and counties that we know we control.
This can be done at the legislative and political level, as Georgia Right to Life and other groups have done by the endorsement of state officials, or it can be done by engaging in municipal ballot measures.
Local laws deal with many powers that touch upon the personhood of the preborn, from local health and building codes to local law enforcement such as child abuse prevention. It is time to establish the recognition of universal human personhood into these laws.
Yesterday, voters in Tennessee approved a ballot measure amending the state constitution to remove all legal protections for abortion rights, paving the way for state lawmakers to pass broad abortion restrictions. At the same time, voters in Colorado and North Dakota overwhelmingly rejected “personhood” measures that would have given the full rights of citizenship to zygotes, thereby criminalizing all abortion along with some forms of birth control. In Colorado, where the nation’s foremost personhood advocacy group is based, it was the third time such a measure had been rejected by voters.
Yesterday’s results are the product of a split among the anti-choice movement about how to achieve the goal of criminalizing all abortions. While most of the movement shares this end-game, its leaders are bitterly divided over the best strategy to achieve it.
The nation’s largest and best-funded anti-choice groups, including National Right to Life, Americans United for Life and the Susan B. Anthony List, favor an incremental approach to chipping away at the protections guaranteed in Roe v. Wade. The incremental strategy has had tremendous success in recent years as measures on the state level have forced scores of abortion clinics to shut their doors. Women in Cincinnati, for instance, still have a legal right to an abortion. But thanks to a recent law aimed at shutting down abortion providers, they may soon lose access to the city’s only clinic that provides the service.
And even in North Dakota, although zygotes won’t be given the legal rights of people (at least for the time being), anti-choice activists are targeting the state’s sole abortion provider, which was struggling to keep its doors open and was recently banned from administering medical abortions.
The personhood movement is angry at mainstream anti-choice leaders for being willing to accept “compromise” legislation that includes exceptions for survivors of rape and incest. But it also thinks that the incremental strategy won’t work. Instead, personhood advocates seek to take advantage of a loophole in Roe v. Wade by which, they believe, if a zygote or a fetus is defined by law as a legal person, Roe’s abortion protections will fall. Groups pushing the so-far unsuccessful personhood ballot measures have allies in this strategy in some far-right judges, most notably on the Alabama Supreme Court, who are trying to build a legal framework for undermining Roe.
On the electoral level, the personhood strategy’s biggest flaw may be it is just too honest about the goals of the anti-choice movement. While Americans are fairly evenly split between those who call themselves pro-choice and those who choose the label pro-life, 70 percent want to keep Roe v. Wade and only 24 percent want to overturn it. Americans have muddled views about circumstances under which they think abortion should be legal, but know that they don’t want it to be completely criminalized.
Groups like Americans United for Life and the Susan B. Anthony List know this and have stayed far away from personhood measures. When a Mother Jones reporter asked AUL for a comment on North Dakota’s measure, a spokeswoman replied, “AUL does not handle personhood issues.”
But other national groups have supported these measures. While National Right to Life’s affiliate in Colorado opposed that state’s measure , saying it would be “immediately overturned in court,” the national group’s North Dakota affiliate backed its state’s even more extreme measure. And while Colorado Republican senator-elect Cory Gardner ran away from the personhood issue, both of North Dakota’s senators supported the ballot measure in their state. The Family Research Council’s North Dakota affiliate also got behind the measure in its state, along with the state chapter of Concerned Women for America and the North Dakota Catholic Conference.
And despite the unpopularity of their bills at the ballot box, personhood advocates still have a strong hold in Congress, where “life at conception” bills have 22 sponsors in the Senate and 133 in the House.
But in the end, even as anti-choice Republicans won handily in Colorado and North Dakota, the personhood measures went down in flames, leading the proponents of the Colorado proposal to rejoice that they at least lost less badly than they had in the past.
The victory of the measure in Tennessee — which will allow legislators to broadly cut off access to abortion rights without explicitly criminalizing abortion — shows that, for now, the incrementalists’ strategy is winning. Even voters in dark-red states like North Dakota can’t stomach a bill that outright criminalizes all abortions. But the anti-choice movement’s strategy to approach the same goal through different means is, so far, working.