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NEAL CONAN, host:

From NPR News in Washington D.C., I'm Neal Conan, and this is TALK OF THE NATION. With two new members on the Supreme Court of the United States, the South Dakota legislature has approved a bill which would ban most abortions. South Dakota pro-life advocate Leslee Unruh.

Ms. LESLEE UNRUH (Founder, Abstinence Clearinghouse): We're been very successful to chip away at the laws of Roe v. Wade in South Dakota, and we think the rest of the country should really be following us and following the heartland. This is definitely planned to go after Roe v. Wade.

CONAN: But some pro-life advocates oppose a frontal assault on Roe while some in the pro-choice camp say, Bring it on. The new tactics of the abortion debate, plus the Court hears cases on campaign contributions and gerrymandering, and we'll visit Mardi Gras in New Orleans. It's the TALK OF THE NATION, after the news.

CONAN: This is TALK OF THE NATION. I'm Neal Conan, in Washington. Abortion remains one of the most divisive issues in American politics today. It acts as a kind of political magnate, pulling moderates swiftly to opposing ends of the political spectrum. The issue erupted again in South Dakota this month, as that state legislature passed a bill that would ban almost all abortions. The bill is designed as a challenge to Roe v. Wade. If Governor Mike Rounds signs it, as he says he's indicated he's inclined to do, it would likely start a process that could eventually bring the legislation before the Supreme Court.

South Dakota is not alone. It's just the first to push this far. Legislators in Georgia, Indiana, Kentucky, Ohio, Tennessee, Missouri, West Virginia, and Oklahoma introduced bills this year to ban most abortions. What it signals is a change in tactics. Pro-life groups have long favored incremental restrictions on abortion, like waiting periods and parental consent. The full-frontal assault on Roe is new and controversial. Some pro-life advocates think it's too risky. On the other side of the debate, some pro-choice advocates are quietly saying that it may be time to change their tactics too. Instead of defending Roe to the last ditch, they say letting it go could transform the debate and mobilize voters on their side.

This hour we'll talk about the new politics of the abortion wars, how both sides are changing and what the road to the Supreme Court might look like. Whether you're pro-choice or pro-life, how do you think your side should fight this fight? Our number here in Washington is 800-989-8255, that's 800-989-TALK. The email address is talk@npr.com. Later in the program we'll talk about election laws in the Supreme Court and make a visit to Mardi Gras. But first, I'm joined by NPR Health Policy correspondent Julie Rovner. Nice to have you on the program, as always, Julie.

JULIE ROVNER, reporting:

My pleasure.

CONAN: And let's start at the top. This new bill in South Dakota basically bans all abortions, doesn't it?

ROVNER: Pretty much. There's an exception for the life of the pregnant woman, but not for her health, and up until now the Supreme Court has said that there must be a health exception. There's also no exceptions for rape, or incest, or some of the sort of traditional exceptions that even many pro-life people say they want to have.

CONAN: Including President Bush?

ROVNER: Including President Bush.

CONAN: Now this would seem to be a direct challenge to the law of the land, Roe v. Wade.

ROVNER: Absolutely, as we heard in the introduction, that the people who designed it, who wrote it, designed it as such. It's not really intended to take effect, or to much affect South Dakota, which only has 800 abortions a year anyway. It's intended to spark the Court challenge that could get this to the Supreme Court.

CONAN: And there's another interesting part of this bill. The conclusions of the South Dakota Task Force on Abortion is referenced in the bill, and it says life begins at conception, specifically, that life is unique immediately at fertilization. What does that mean?

ROVNER: Well, it's interesting. It has serious implications for the use of contraception. Interestingly enough, this bill tries to get out of that fight by including in it, and I have it in front of me, a phrase that says, that the bill is not intended to ban contraception, "if it's administered prior to the time when a pregnancy could be determined through conventional medical testing." That of course is not conception or fertilization, but implantation, which happens somewhat later. That's when the woman starts secreting the hormones that can be detected by a pregnancy test. So this kind of gets around what would otherwise, perhaps, be a ban on even some birth control pills, by inserting that.

CONAN: Mm-hmm. Now, the bill makes it a crime for doctors to perform abortions. They're not yet willing to hold the pregnant woman responsible.

ROVNER: No, and we've really seen this again and again in a lot of these bills that seek to criminalize either specific procedures. The partial-birth abortion ban act that the Supreme Court has already agreed to hear also criminalized it for the doctor but not for the woman. That's a political decision, another strategic decision that they don't want to criminalize it for the woman. The pro-life side sees women as victims in all of this.

CONAN: Mm-hmm. Now the Governor of South Dakota has intimated that he's inclined to sign this bill. If he does, what happens next?

ROVNER: It will be, well, if he does, then Planned Parenthood, which is the sole abortion provider in the state of South Dakota has already said it will sue. And there's every reason to believe it will be instantly enjoined, because it obviously conflicts with all of the Supreme Court precedents that are currently on the books.

CONAN: Mm-hmm.

ROVNER: So, I mean, so the lower courts would basically have no choice but to enjoin it.

CONAN: When, there is precedent for this, when other restrictions on abortion have been approved that seem to violate Roe v. Wade, again, these laws never take effect until they're, sometimes they do when they go to the Supreme Court, but before that.

ROVNER: Yes, the vast majority of, I think, abortion laws in the states aren't, are somehow enjoined and not, either not in effect, or not being enforced, due to a variety of court challenges. I think parental notification laws are pretty much the exception because the court has made it fairly clear that, you know, that's okay and here's how you do it. But for a lot of these banned and some of these, you know, newer restrictions, many of them, while passed and signed into law, are not being enforced or have never taken effect.

CONAN: Mm-hmm. All right. So once it's in the federal court system, how long, well, it can take years before it gets to the Supreme Court, if ever.

ROVNER: Absolutely. And I think the partial-birth abortion ban act is a good example. It was signed in November of 2003, and actually, I thought that it would go just kind of sweeping through the court system very quickly, because it was very clear that it conflicted with decision that the Court had made in the year 2000 on a similar law from Nebraska. But as it turned out there were three lawsuits, there were trials, in all three lawsuits, and then they went to the appeals court, and the appeals court took some months, and that case didn't even count, was not even appealed to the Supreme Court until just a few months ago, and the Court only just decided that it would hear it next year. So that's going to be almost three years from the time it was signed to the time it actually go to the Supreme Court. And that's quick.

CONAN: And that's quick, as you point out. But that is an example of the, what I guess we can call the old tactics, sort of the incremental approach to whittling away at abortion.

ROVNER: And that has been, I mean, this is something that President Bush has talked about. That you, that the nation is probably not ready to ban abortion until we change the culture of life and the feelings of the public. And of course this, you can see this in public opinion polls too. I saw just one this weekend that said, do you think Roe v. Wade should be overturned, and I think 69% said no. Now, when you go back and ask the public, do you support this restriction or that restriction or this restriction, then you tend to get majority support.

So, the public has always been conflicted, and I think the pro-life side has been following the public on this, thinking that if you can build up these restrictions, A, you can make abortion unavailable without actually banning, which, as far as they're concerned, is a fine thing, and you can help change people's mind, and perhaps bring them to a position where there would be more acceptance if abortion were to be banned.

CONAN: Now, what would the, let's talk true speculation at this point. Say, there are two members of the Supreme Court, let's say that this case does reach the Supreme Court and that the justices do vote to overturn Roe v. Wade. What would be, what would actually change?

ROVNER: Well, most people think that that would make abortion immediately illegal, and that's not the case. What it would do is it would return the state of the law to what it was on January 21st, 1973, which is to say, it would be up to the states. So, there are several states, South Dakota is one of them, that have what are called trigger laws, that if Roe v. Wade were to be overturned, they would immediately have bans that go into effect.

Other states I think you would see kind of, all out, you know, war in some of these state legislatures. And there's much speculation that sort of the blue states would make abortion legal, or insure that it remains legal, and some of the red states would make it illegal. And in fact, that was the case in, you know, in 1972 and 1973, that some of the states, the more liberal-leaning states, were moving to actually make abortion more easily available.

CONAN: Now, you've been talking to people on the pro-life side, some of whom worry about this. They worry that if the Supreme Court does review it, either it could uphold Roe v. Wade again, which they would not like, or, that if it overturned Roe v. Wade, a lot of the political energy of this debate would shift from the pro-life side to the pro-choice side.

ROVNER: One of the paradoxes of the abortion debate, for really the 35-plus years its been going on in full-fledge is that whichever side is kind of going, doing better in the legislature and in the courts tends to energize the other side. So, after Roe v. Wade, which legalized abortion nationwide, you had the real rise of the pro-life movement. In 1989, after the Supreme Court suggested in Webster that is might be willing to look at some more restrictions and that perhaps it would be willing to take a new look at Roe v. Wade, you energized the pro-choice side. And there was a lot of concern that Congress actually started, that's where we first got the rape and incest exception that came back into federal law. So every time one side does better, one side wins, the other side's energized.

CONAN: Mm hmmm.

Ms. ROVNER: So, there is a concern I think among pro-lifers, I think, that if Roe v. Wade were to actually be overturned, that it would wake up the, what the pro-choice side say is the pro-choice majority, obviously mostly what we have is a muddled middle.

CONAN: Let's get some listeners in on the conversation. Our number 800-989-8255, 800-989-TALK, the e-mail address is talk@npr.org and let's begin with Joe. Joe's calling us from Grand Rapids in Michigan.

JOE (Caller): Yes, hello?

CONAN: Hi, go ahead, Joe.

JOE (Caller): Yes, thank you. My question had to do with what pro-life and pro-choice parties are doing cooperatively to lower the number of abortions and how effective is it since no one is really comfortable with the advocating for abortions, rather they advocate for choice...

CONAN: Mm-hmmm.

JOE: ...but I really want to find out if there's any communication or cooperation between these parties.

Ms. ROVNER: There are a lot of sort of small projects. There is some reaching out going on to, certainly around contraception, to try and find ways to prevent pregnancy rather than have it be terminated with abortion, but that you very quickly get into sort of more difficulties because you've got a lot of people on the pro-life side who have troubles with certain kinds of contraception, so they're not really anxious to do that, it gets into questions of sex education in the schools, which makes some people uncomfortable. Sort of all the things where there should be common ground, there is some, but not always a lot. There are certainly efforts to bring the two sides together, but again, the sides kind of thrive on being as far apart as they possibly can.

CONAN: But they do work together on trying to prevent things like teenage pregnancy, which is going down.

Ms. ROVNER: Absolutely.

CONAN: Yeah. Joe?

JOE: On a broader scale relative to types of educational medical support or something like, any incentives on a broader policy that would cause more women not to choose abortion because of less burden on their future children?

Ms. ROVNER: There are certainly efforts at more social supports for women and teens with unwanted pregnancies. There was a lot of agreement around the welfare law, for instance, in the mid-1990s about sort of not encouraging women to have abortions by cutting off payments for extra children and making it easier for, you know, women to work and go to school and support children and get child care. There are a lot of things that there is some common ground on which is to say, to make abortion not necessarily, to not have a woman feel that that's her only option.

CONAN: Joe, thanks very much for the call.

JOE: Thank you.

CONAN: We're talking about Roe v. Wade and what might happen if a challenge to that landmark Supreme Court decision makes its way back to the Supreme Court. We'll be talking with supporters of both sides of the abortion debate after we come back from a break. If you'd like to join us 800-989-8255, 800-989-TALK, e-mail us, talk@npr.org. We're talking about the shifting tactics of the abortion debate. I'm Neal Conan, this is TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION, I'm Neal Conan in Washington. Lawmakers in South Dakota have set in motion a process that could put Roe v. Wade back before the Supreme Court. Today we're talking about what such an outcome might mean for people who work on both sides of the abortion debate. Our guest is NPR Health Policy Correspondent Julie Rovner and joining us now is Professor Richard Duncan. He teaches law at the University of Nebraska and joins us by phone from his home. Nice of you to join us.

Mr. RICHARD DUNCAN (Professor of Law, University of Nebraska): Nice to be here, thank you very much.

CONAN: You hold a pro-life position, but as I understand it, you're not sure that this frontal assault on Roe v. Wade is the right idea.

Mr. DUNCAN: Well, I think that's right. I, sort of speaking to friends on the pro-life side as sort of the legal counsel and a political counsel rather than as a sort of pro-life advocate, I think that maybe this is too much, too soon. And I think that's true for a number of reasons, one is it is clear that the law will be struck down as unconstitutional, and it's clear to me as a scholar in the area of constitutional law that there aren't five votes to uphold the law, we still have the four liberals, for want of a better word, Stevens, Ginsburg, Breyer and Souter.

And then Justice Kennedy is still on the court and Justice Kennedy, of course, is the author of one of the Troika Opinion, a three-judge opinion in the Casey decision that reaffirmed Roe. So there's no chance of overturning Roe, all you may do is convert Roe into a super precedent, what some people are talking about as a super precedent, the more times a case is revisited and reaffirmed, the stronger that precedent becomes.

CONAN: So, the tactic then, preferred tactic would be the continued whittling away, for example the, challenge to the late-term abortion ban bill?

DUNCAN: I think that's exactly right. I think that's, a very similar strategy to the strategy that the civil rights movement had when they were basically challenging Plessey v. Ferguson and the idea of separate but equal schools, separate but equal public facilities. Their goal was not to confront Plessey v. Ferguson head on, to not ask the court to overrule it, until they were sure that they had a strong majority and public support for overruling it.

Instead they worked to erode it and to chip away at it. I think that's the same strategy that will work here. I think things like partial-birth abortion laws, I think with Justice O'Connor being replaced by Justice Alito, there's more chance that a partial-birth abortion law will be upheld. Maybe things that involve pre-abortion notification, a kind of law that I think would be really a good pro-life law would be something that would require an ultrasound before abortions take place. There's a lot of evidence that when women see the developing life in the womb through an ultrasound, they're much less likely to abort it. They see it much more as a person, as a baby, much less as a sort of an unwanted part of their body. So, I think those kinds of laws might have a chance of being upheld, you work to build a strong consensus. When you've chipped away at enough of the foundation of Roe, then and only then is it time to kick it over and seek to overrule it.

CONAN: Let's get another caller on the line. This is another Joe, this one calling from Charleston, South Carolina.

JOE (Caller): Hi Neal, thank you.

CONAN: Go ahead please.

JOE: The question that I have is, I was wondering if the pro-lifers are naive enough to believe that if abortion is outlawed, that the practice will just cease, or do they recognize that making abortion illegal would actually drive it underground, drive it somewhere outside of a sterile environment like we have now, where it's regulated and, you know, can be seen by government agencies and private...

CONAN: Mm-hmm.

JOE: ...medical establishments?

Mr. DUNCAN: Well I could answer that, I, number one reversing Roe will not make, I think the point has already been made by your correspondent, reversing Roe will not make abortion illegal in America. It will return the issue to the states, return the issue to the political process, which is where a lot of pro-life people think it ought to be. It ought to be an issue to be debated in legislatures, not an issue to be decided by a body of unelected lawyers, so...

CONAN: But in many states, it would be illegal and in, there are other, you know, practical effects. I think there's one abortion clinic now in South Dakota. So, I mean, to some degree as a practical matter, it's almost illegal.

Mr. DUNCAN: Yeah, I think that's right, but instead of driving across the state of South Dakota, you might have to drive to Denver to get an abortion. It might make it a little more difficult to get, but it would still be legal in probably more than half the states, and it may well be that even Congress would pass some kind of pro-choice, there was, I think somebody mentioned in the late '80s, when it looked as though there was a chance that Roe would be overruled, Congress was poised to pass the Freedom of Choice Act, which would have basically legalized abortion under federal statutory law throughout the United States, but even that's better than the courts, because then there's still a forum to debate this. People who lose this year can go back to Congress next year, seek amendments to the legislation, seek repeal of the legislation. But the problem with the Supreme Court decision is the constitution is a trump card. Once the court's spoken, there is no other forum, there is no tomorrow. There is no other place where you can debate the issue until the court is ready to overrule itself.

CONAN: Mm-hmm.

Mr. DUNCAN: So, and it's very difficult to amend the constitution, to overrule the court. So, I think a lot of, at least conservative lawyers believe that this issue, that the constitution does not speak to abortion, it says nothing about abortion, it says nothing about privacy, this is simply a case of judicial activism, and that this issue belongs in the political process where, you know, people can debate it and argue for it and ultimately the legislatures of the states and Congress will decide the issue.

CONAN: Joe, thanks very much.

JOE: Thank you.

CONAN: And, let me ask you what you make of the, again, as a political observer, of the argument that if Roe v. Wade were to be overturned, a lot of the political energy would switch to the other side of the debate.

Mr. DUNCAN: I think that that's a very good point. I think my colleague Sandy Levinson has made that point and will probably be making it later on this show.

CONAN: In about three minutes I think, yes.

Mr. DUNCAN: I think that is a very good point. You know, what happens is whichever group loses the debate in the courts then becomes more politically active. If you're a pro-lifer and the court says Roe v. Wade is the law of the land, then you'd better elect Republican presidents for the next 20 or 30 years, in order to get conservatives appointed to the Supreme Court of the United States. And that's the only way to change the court is to change the personnel on the court. And the only way to change the personnel on the court is to elect a Republican President and a Republican Senator if you're a pro-lifer.

My guess is the opposite would be equally true. If Roe is reversed, particularly if we saw many states prohibiting abortion, my guess is the pro-choice people would be much more activated in the political process, it would be a great boost to a liberal Democratic presidential candidate to a Democratic senatorial candidate. So, I think Sandy is probably right about the political effects of the court overruling abortion.

CONAN: Professor Duncan, thanks very much.

Mr. DUNCAN: You're welcome, pleasure to be here.

CONAN: Richard Duncan teaches law at the University of Nebraska and joined us by phone from his home, and well, as he mentioned Sanford Levinson is about to join us. He's a Professor of Law and Government at the University of Texas at Austin. He's with us today from the studios of member station KUT in Austin, Texas, and it's nice to have you on the program.

Professor SANFORD LEVINSON (University of Texas, Austin): Pleasure to be here.

CONAN: Again, can you just run through that logic for us, the political logic again, of maybe suggesting that it's time to let Roe v. Wade go.

Professor LEVINSON: Well, my view is that Roe v. Wade, in effect, has been the gift that has kept on giving to the Republican Party. It was a very powerful reason or explanation for the mobilization of the anti-abortion movement in the mid-'70s, end of the '70s, for reasons that are interesting, I don't think it had to be this way, but it turned out to be that way. The Republican Party became identified as the anti-abortion party and a lot of people who, in terms of their general social position, their class position, their interests, say, in health insurance, minimum wages and the like, might have continued to be traditional kind of New Deal Democrats, were lured into the Republican Party because they thought the Republican Party really meant it when they promised they were anti-abortion.

The Democratic Party, for a variety of reasons, became identified with a strongly pro-choice position. I think there's a lot of bad faith in the Republican Party about the commitment to a pro-life stand. The Economist magazine, about a couple of years ago or so, in one of their columns on Washington politics and abortion, concluded it by saying that Karl Rove is just as likely to run naked around the Lincoln Memorial as he is actually, really and truly, to support the overruling of Roe. And I really have no doubt that that is basically true of Rove. I don't think it's true of all pro-life Republicans. I think Senator Coburn from Okalahoma, Rick Santorum from...

CONAN: Pennsylvania...

Professor LEVINSON: ...Pennsylvania, are really sincerely committed on that issue. I happen to disagree with them, but I respect the integrity of their commitment. I think a lot Republican politicians have taken refuge in Roe in that they can posture and strongly anti-abortion stand secure in the knowledge that they're not really going to have make policy, because, you know, Rick Duncan and I agree completely that the South Dakota statute will be struck down by the Supreme Court unless the membership changes, So it is a lot of posturing.

And what I would like to see and I think this is the virtue, if we Roe was overruled, why Rick and I agree that it could turn out to be a real boon for the Democratic party, is that the posturing would have to stop. And as Rick pointed out, and the polls show overwhelming public support for the kind of clumsy, in some ways logically incoherent compromises reached by the Supreme Court, but the Democrats have a winning issue with regard to, do you want to criminalize abortion. And so the virtue of overruling Roe is that that would become the issue on the table, and it's an issue that I think, as I say, would be a big winner for the Democratic Party and a big loser for the Republicans.

CONAN: A lot of women would fear sentencing some of their sisters in other states to back-alley abortions. Again not everybody can drive 900 miles to Denver.

Professor LEVINSON: This is what certainly gives me pause. The obvious, I view myself as pro-choice, and I've had a lot of conversations, including conversations with my own family, with regard to the implication of this analysis. One of the responses, it was already brought up in your program today, that in a lot of states in the country, South Dakota is a good example, Mississippi is another, abortion is available kind of as a matter of theory. I think there is one abortion provider in Mississippi, there is one abortion provider inn South Dakota.

But I think it is correct to say that in most counties in a number of states, abortion just isn't available. Rick mentioned that it may be that women will have to drive from western South Dakota to Denver or from eastern South Dakota to Minneapolis, or for that matter, cities much closer than Minneapolis. I think that those of us who are pro-choice will not only have to get really involved politically on this issue, but also pony up contributions to Planned Parenthood and the like to make sure that as few women as possible who wish to exercise what I do believe is their right to reproductive choice, will in fact lose it.

I freely admit that my view is really based on my own belief that it's very, very important for the Democratic Party to do better and for the Republicans stop getting what I think is the Roe bounce. If our politics were different, then I might be more truly supportive of maintaining Roe. But what I'm afraid is that the Rick Duncan strategy, which I think is the strategy of most of the politically savvy anti-abortion movement, is to hollow out the right more and more, but still reassure basically suburban Republican, particularly women, but not only women, who may have had abortions themselves, their daughters might wish abortions, to reassure them that they'll be all right...

CONAN: We're talking about the shifting tactics of the abortion debate. You're listening to TALK OF THE NATION from NPR News. And here's an email we got from Burke in New York. The remarkable thing to me is the extremes to which either side takes the debate, pro-choice advocating absolute availability to the point where it becomes a birth control option, pro-life advocating absolute band even in rape and incest and in cases where the mother's life maybe at risk. And again, two of those three are excluded in this South Dakota bill. These polarized views seem not to represent the vast majority of Americans whose opinions fall mostly in between.

Professor LEVINSON: I think it's absolutely right. And I think that if it were returned to the full scale political process, you'd get a variety of bills. I think that probably the most extreme version would be something like the South Dakota bill, which would be restricted to preserving the life of the mother. I tend to doubt that there would be any bills that would be kind of pure abortion on demand, but it's not impossible that one of the 50 states would pass such a bill. But I think that you would have a variety of legislation. Though I do think the wildcard on this whole debate is another thing that Rick Duncan mentioned, which is whether Congress would get involved.

CONAN: One more point, and that is if the Supreme Court is willing to overturn what Senator Specter called the super duper precedent of Roe v. Wade, is there a slippery slope, might Griswold, the right to contraception be next?

Professor LEVINSON: No. I think, first of all, no state, as a practical matter, is going to pass the law these days outlawing contraception. I don't think that's really on the table. Secondly, I think that Griswold has become accepted by the culture at large. You really do have to be pretty extreme, and I use that term in an analytic rather than a pejorative sense, in terms of general view of public opinion, to believe that contraception should be outlawed. There is a difference. And I think most people, whatever side they're on this debate, most people can tell the difference between contraception and abortion. And I think that you get different distributions of opinion on abortion and contraception. So, I would have no fears about Griswold.

CONAN: Sanford Levinson, thank you very much for being with us today.

Professor LEVINSON: Thank you.

CONAN: Sanford Levinson is a professor of law and government at the University of Texas at Austin, and joins us today from the studios of our member station there, KUT. Our thanks, as well, to Julie Rovner, NPR health policy correspondent, who has been with us here in Studio 3A.

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