Antiabortion Movement Begins to Crack, After Decades of Unity – The Wall Street Journal

Antiabortion and abortion-rights demonstrators in front of the Supreme Court in January. Photo: saul loeb/Agence France-Presse/Getty Images

Close to five decades after the Supreme Court’s Roe v. Wade ruling enshrined a woman’s constitutional right to terminate a pregnancy, the unity of the antiabortion movement is cracking.

For years, those opposed to abortion have largely hewed to a legal strategy to pass laws adding incremental limitations to the historic 1973 ruling.

Now, an ascendant, activist wing is pressing for legislation that doesn’t just limit the procedure, but outlaws it. Emboldened by President Trump’s Supreme Court picks, the activists have grown impatient with what they see as small developments, and instead are actively seeking a legal fight with the goal of overturning Roe.

This year, seven states—Kentucky, Georgia, Mississippi, Missouri, Alabama, Louisiana and Ohio—have made head-on challenges to Roe by passing laws that move the cutoff point for a legal abortion deep into the first trimester, some making no exceptions for rape or incest.

The so-called heartbeat bills, which ban abortions after a fetal heartbeat can be detected, at around six weeks of pregnancy, have brought the internal rift over strategy to a crisis.

“We need to raise our expectations in the pro-life community about what is possible,” Ohio activist Ed Sitter said at an antiabortion meeting in the state, according to a video. “We are committed to the abolition of abortion in our lifetimes.” In an interview, he said: “We need to be pushing the envelope.”

The more-traditional wing of antiabortion groups says the bigger ambitions bring bigger risks: The Supreme Court could reinforce its Roe principles by leaving lower court rulings against heartbeat bills in place, stalling momentum toward greater restrictions. And if the court took a case, it could reaffirm Roe v. Wade, as it did in the early 1990s, or even reinterpret the right to abortion more broadly under the Constitution.

“The last thing we want to trigger is reaffirming Roe v. Wade,” said James Bopp, longtime general counsel of the traditional group National Right to Life, in an interview. “That would be a disaster of epic proportions.”

Change in Strategy

Antiabortion activists are split on whether to directly challenge Roe v. Wade with heartbeat bills, or whether to continue the strategy of working to add incremental limitations on abortion. At the same time, a few states have eased abortion restrictions, which has motivated the opposition.

States enacting abortion bans in 2019*

States expanding abortion rights in 2019

Percentage breakdown of abortions by how far along the woman was in her pregnancy when it was performed, according to the most recent data (2015)

6 weeks or less

21 or more

New law: Complete ban

New law: Abortion Banned After 6 Weeks

Mississippi

New law: Abortion Banned After 8 Weeks

New law: Abortion Banned After 18 Weeks

States enacting abortion bans in 2019*

States expanding abortion rights in 2019

Percentage breakdown of abortions by how far along the woman was in her pregnancy when it was performed, according to the most recent data (2015)

6 weeks or less

21 or more

New law: Complete ban

New law: Abortion Banned After 6 Weeks

Mississippi

New law: Abortion Banned After 8 Weeks

New law: Abortion Banned After 18 Weeks

States enacting abortion bans in 2019*

States expanding abortion rights in 2019

Percentage breakdown of abortions by how far along the woman was in her pregnancy when it was performed, according to the most recent data (2015)

6 weeks or less

21 or more

New law: Complete ban

New law: Abortion Banned After 6 Weeks

Mississippi

New law: Abortion Banned After 8 Weeks

New law: Abortion Banned After 18 Weeks

States enacting abortion bans in 2019*

States expanding abortion rights in 2019

Percentage breakdown of abortions by how far along the woman was in her pregnancy when it was performed, according to the most recent data (2015)

21 or more

New law: Complete ban

New law: Abortion banned after 6 weeks

New law: Abortion banned after 8 weeks

New law: Abortion banned after 18 weeks

For decades, National Right to Life, the largest and oldest antiabortion group in the country, and Americans United for Life have sought to chisel at abortion protections by successfully passing bills for stricter health regulations, longer waiting periods, higher hurdles for minors, mandatory ultrasounds and the defunding of clinics. Their efforts have helped lead to a decline in the number of abortions and, particularly in rural areas, the number of clinics available to women.

In Ohio, the fight over strategy split the movement. In December 2016, then-Gov. John Kasich, a Republican, vetoed a heartbeat bill, saying it clearly conflicted with Supreme Court rulings and would saddle the state with legal fees to defend it.

The top officials of the traditional Ohio Right to Life, the state’s largest antiabortion group, agreed with him. Such a sweeping ban, the leaders felt, would mire the state in a losing court battle.

Activists running Ohio Right to Life’s largest city chapters were outraged. They saw the veto as a betrayal of the cause.

Within weeks, they had formed a new coalition. They vowed to get the heartbeat ban enacted and to promote legislation outlawing abortion from the moment of conception, and never to compromise.

The heartbeat bills’ proponents say the strategy shift is warranted because they think the case against abortion has gotten stronger—pointing to science and medical advances that have increased understanding of fetal development at earlier stages of gestation—and the Supreme Court will want to hear it. They have grown more confident with the recent confirmation of two conservative justices and the departure of Justice Anthony Kennedy, who joined the 1992 Planned Parenthood v. Casey decision reaffirming the core of Roe. They also believe that the Trump administration will offer support.

James Bopp, center, shown in 2015, general counsel of National Right to Life, has argued against heartbeat bills. Photo: Alex Wong/Getty Images

Even though the laws aren’t being enforced because they don’t comply with Roe, the proponents see a practical necessity in enacting them. “If a legislature is not going to do this, why should we expect the Supreme Court to get out ahead?” said Georgia Republican Rep. Ed Setzler, a heartbeat bill sponsor.

The Roe v. Wade ruling first established a woman’s constitutional right to have an abortion before viability, defined by justices as when a fetus can realistically survive outside the womb. In Roe and subsequent rulings, the Supreme Court held that the government has an important interest in protecting fetal life throughout pregnancy, but until the fetus attains viability, that interest can’t impose an “undue burden” on a woman’s right to the procedure.

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The traditional legal strategy of abortion opponents has focused on pursuing regulations and restrictions that can be defended as protecting fetal life without putting substantial obstacles in the path of a woman seeking an abortion.

Proponents of the heartbeat bans aren’t just trying to stretch the notion of an undue burden but are instead challenging the concept of viability.

Above, antiabortion demonstrators kneeled on the steps of the Supreme Court in 1985. Below, marchers in Washington in 1981 protested against Roe v. Wade. Photo: Bettmann Archive/Getty Images
Photo: Herbert k. White/Associated Press

Nearly a decade ago, Ohio Christian activist Janet Porter—recently a spokeswoman for Alabama Senate candidate Roy Moore—saw the potency in connecting an abortion ban to a beating heart. “If there’s a heartbeat, there’s a life,” Ms. Porter said in an interview. “Everybody understands that.”

Early on, she enlisted some 20 attorneys across the U.S. to help draft language that could be used in legislation. Among them was Cleveland State University law professor David Forte, who seized on medical research indicating cardiac activity was a key predictor of infant survival. He wrote an analysis that framed legislation not as a blunt attack on Roe, but as flowing out of the doctrine of Roe and later Supreme Court cases.

Mr. Forte made the case to state lawmakers that the viability standard was too ambiguous and subject to varying opinions. He said detection of cardiac activity is a clearer, more precise dividing line, and would offer conservative Supreme Court justices an attractive alternative.

Activists now are focused on Michigan, where conflicting sides are vying to enact two different bills.

A coalition of evangelical and Republican activists is trying to collect hundreds of thousands of voter signatures to help enact a heartbeat bill. If successful, the petition drive would enable Republican lawmakers to enact it without the signature of Michigan Gov. Gretchen Whitmer, a Democrat who opposes it.

Ohio Christian activist Janet Porter, who helped develop the strategy around heartbeat bills, in May. Photo: Maddie McGarvey for The Wall Street Journal

Right to Life of Michigan, a traditional group, has refused to help with the coalition’s drive. A lobbyist for the organization, Genevieve Marnon, said passing a heartbeat ban could put at risk a Michigan abortion prohibition dating back to the 1800s. The old law—still on the books but unenforced in the modern era—was even stronger, criminalizing all abortions, and would come back into effect if Roe were overturned, the group said.

Instead, the group is lobbying for its own bill, a ban on a common second-trimester surgical procedure—what abortion opponents call “dismemberment abortion”—that they believe could pass constitutional muster.

Corey Shankleton, a real-estate agent and former pastor behind the Michigan heartbeat coalition, bristles at the slower approach.

“A lot of these national organizations have been involved in the fight for 46 years with very few victories to show for it,” he said. “This is the best opportunity we’ve had in a generation to send a real challenge to Roe.”

The antiabortion movement is still united in its end goal, said Andrea Miller, president of the National Institute for Reproductive Health, an abortion-rights advocacy group.

“The challenge they’re now facing is that one wing is explicit about their end goal and the other is trying to camouflage it,” she said. “The incrementalists have made huge strides in undermining access to abortion largely because they did so without the vast majority of the public being aware of the attack.”

She said the heartbeat bills have “pulled back the veil” and resulted in public outcry, and “that’s why they’re fighting with each other.”

In Missouri, antiabortion activists skirmished with the state’s Right to Life affiliate over a heartbeat bill.

At the “Pro-Life Action Day” rally at the Capitol in March, traditional members circulated pamphlets that damped enthusiasm for the activists’ proposal: “The courts have ruled that every one of these bills as written and passed in other states, are unconstitutional,” the pamphlets read.

Activist groups such as Missourians for the Unborn and 40 Days for Life continued to push for support on Facebook and other social media. Religious organizations implored their backers to head to Jefferson City to buttonhole lawmakers.

“We went at it pretty aggressively,” said Lisa Pannett, a conservative activist and heartbeat-bill proponent.

The measure passed and was signed by the governor in May.

Several federal district and appellate courts have ruled heartbeat bills unconstitutional. In May, U.S. District Judge Carlton W. Reeves, appointed by President Obama, struck down Mississippi’s heartbeat law, finding the statute in clear violation of Supreme Court precedent. Last year, Judge Reeves ruled against the state’s less restrictive 15-week ban on the procedure, stating in his opinion that Mississippi “chose to pass a law it knew was unconstitutional.”

In May he wrote: “Here we go again. If a fetus is not viable at 15 weeks, it is not viable at six weeks.”

The state has appealed the ruling.

Heartbeat bills got a boost from an unlikely source—abortion-rights advocates. Efforts to loosen restrictions on late-term procedures in New York and Virginia helped to galvanize political support for more uncompromising legislation, according to antiabortion activists and lawmakers. States have also passed legislation allowing nondoctors to perform abortions and requiring insurers to cover the procedure.

The inflamed debate gave conservative legislatures and governors more incentive to seize the issue and take a harder line, activists said.

Mississippi Gov. Phil Bryant signed the state’s heartbeat bill in March. Photo: Sarah Warnock/The Clarion-Ledger/Associated Press

In Georgia, heartbeat bill advocates had the votes to pass the state Senate earlier this year but were bracing for a tough fight in the state House of Representatives.

By February, a radio interview given by Virginia Gov. Ralph Northam, in which the Democrat appeared to endorse a physician’s right to perform an abortion after delivery, helped shift the momentum. Mr. Northam has said his comments were misinterpreted.

“People were in shock and disbelief that a governor would even say such a thing. It was a turning point,” said Virginia Galloway, regional field director for the Faith and Freedom Coalition in Georgia. “It turned up the heat everywhere.”

Georgia lawmakers passed the bill, and Republican Gov. Brian Kemp signed it in May.

In May, Alabama passed the most far-reaching antiabortion bill in a generation, making it a felony for doctors to perform the procedure at any point during pregnancy. Like Ohio’s law, Alabama makes no exception for rape or incest.

Eric Johnston, president of the Alabama Pro-Life Coalition, who drafted the measure, said antiabortion groups in the state for years had successfully pushed for incremental legislation, such as adding regulations on clinics. But the restrictions could go only so far, he said. The new composition of the Supreme Court gives activists a chance to get the court to reassess the basis of Roe and to consider the argument that a fetus is a person, he said.

The Supreme Court still lacks the votes to overturn Roe v. Wade, said Mr. Bopp, the lawyer for National Right to Life. During its most recent session, the Supreme Court largely avoided the issue of abortion, repeatedly denying petitions seeking review of abortion restrictions. Among the five conservatives, only Justice Clarence Thomas has expressed support for reversing Roe v. Wade.

The heartbeat bans present the court with too stark a choice, said Mr. Bopp, a Supreme Court litigator who spearheaded the campaign-finance case known as Citizens United.

Mr. Bopp thinks the court is more likely to re-examine and question Roe v. Wade than to throw it out entirely. The court can consider restrictions on specific procedures, narrower limits to access or clinic regulations without making a dramatic departure from precedent.

Abortion-rights protesters in Missouri in May. Photo: troy swanson/EPA/Shutterstock

He tried to deliver that message to a private gathering of dozens of antiabortion leaders in Titusville, Fla., at the headquarters of a Catholic antiabortion group called Priests for Life.

“We all listened politely,” said Allan Parker, a longtime antiabortion legal advocate and president of the Justice Foundation in San Antonio. “But people get impatient when you’re talking about human rights.”

Mr. Parker said the “facts and circumstances” around abortion have changed in ways that could make the high court less wedded to its historical position.

Clarke Forsythe, senior counsel with the traditional-minded Americans United for Life, sees other potential consequences. He recalled the aftermath of the Supreme Court’s ruling in Planned Parenthood v. Casey that reaffirmed the central holding of Roe, wiping out strict abortion bans enacted in Utah and Louisiana the year before.

“We were in the wilderness for several years after that,” Mr. Forsythe said. “These losses in the court carry risks and have political fallout, loss of momentum and perceived strategic failure.”

Write to Jacob Gershman at jacob.gershman@wsj.com and Arian Campo-Flores at arian.campo-flores@wsj.com

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