Campaign for choice

This is the year of abortion law. In Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, North Dakota, Ohio and Utah legislatures, there have been measures introduced to try to limit, if not outlaw, abortion.

Meanwhile, in Illinois, Maryland, Nevada, New York, Rhode Island, Vermont and Virginia, there were corresponding efforts to protect abortion.

It took some people who watch politics by surprise.

“I did not see it coming,” said Nevada political scientist Fred Lokken. “No, but Trump has delivered on these federal judges. It’s being pushed by the Trump base, evangelicals and those in the South.”

But it wasn’t just the South. Ohio is a big urban state where surveys show a tie between pro-abortion and anti-abortion sentiment, yet the legislature chose the anti-abortion side.

As all this was happening, something interesting has been going on. The public nationally reacted to the new threats to legal abortion by becoming more militant on the issue, according to a Reuters/Ipsos poll released May 26. It showed support for abortion rising from 50 percent in a similar survey last July to 58 percent last month. That rises to 80 percent support for abortion availability in cases of rape or incest.

It’s easy enough to see why anti-abortion sentiment is strong in Southern states like Georgia or Northern rural states like North Dakota. But why Ohio?

In all likelihood, it’s because of a situation that once prevailed in Nevada—politicians believed that the politically safe default position in the state was opposition to abortion. This was because they observed both sides, and the opponents of abortion were more active and more outspoken, which translated to politicians as more likely to turn out to vote. Supporters of abortion were less visible, less active. Only when there appeared to be a real threat to abortion rights were they heard. Opponents were always vocal, not just when their side needed to speak out. Putting it simply, opponents scared the politicians more.

As a result, the Nevada Legislature regularly enacted anti-abortion bills—parental consent, limits on late term, a state legislative call for a national constitutional convention. Pro-abortion bills were rarely, if ever, introduced. Indeed, the abortion support side was essentially defensive. Abortion supporters would not even say the word “abortion” if it could be avoided.

One of the consequences of the politicians’ practical political calculation is that over time, their political judgment was assigned to everyday Nevadans as their sentiment. Nevada was widely regarded as an anti-abortion state.

There was little evidence for the notion. Polls were rare in Nevada, but there had been a Rocky Mountain Poll in the 1970s that found Nevada was the most pro-abortion state in the intermountain West, but it received very little attention in Nevada. Conventional wisdom, once formed, is very difficult to sweep away.

In Nevada and elsewhere, anti-abortion legislation became a staple of politics. In 1989, several Nevada women’s rights leaders started talking about a remedy—taking the issue to the ballot in 1990.

It was a stroke of genius. After the Roe v. Wade ruling by the U.S. Supreme Court decision made abortion rights a reality, Nevada legislators had rewritten the state abortion law to bring it into compliance with the ruling. What the women’s leaders were considering was not an initiative petition but a referendum petition. An initiative proposes new law, thus asking voters to make changes. But a referendum puts an already existing law up for a vote of approval or disapproval, thus asking merely for ratification of the status quo. And by 1990, Roe had been the status quo for 18 years and the republic still stood. Politicians might consider the anti-abortion stance the safe position, but the voters might well find the existing state law the comfortable vote.

One night a couple of years before the vote, I got a sense of how strong the status quo might be as a ballot line. Washoe County Sen. William Raggio, the Republican floor leader of the Nevada Senate and a Catholic, was the guest on a taping of my Sunday interview show on KTVN, Face the State. Afterward, he, his wife Lucille and I went to dinner at Rapscallion in Reno. I don’t know how we got onto the topic of abortion, but he said casually that he was satisfied with the state of the law in Nevada. I was uncertain I had heard him accurately and followed up. He made clear that I had heard him correctly, although he had no interest in publicizing that stance.

A gambling state

The referendum was a gamble, and there were those who did not want the leaders to take it. The National Organization for Women, recalling that Nevadans in 1978 had voted down the Equal Rights Amendment in a landslide, had no interest in supporting the referendum.

Planned Parenthood was similarly scared of the risk. But the Nevada women leaders moved ahead with their plan.

Once the signatures were gathered to gain ballot status, there was another way—besides the status quo angle—that the leaders were in a strong position. This was their public posture. In that 1978 campaign, they had not wanted the ERA on the ballot and, in fact, went to court to try to stop it, while ERA opponents supported a vote of the public. It was not difficult for voters to figure out which side had confidence in their ability to win. The supporters were perceived as weak.

But in 1990, the referendum was launched by abortion supporters. They raised the money for a signature drive to qualify for the ballot, and they campaigned confidently once it was on the ballot. Opponents were lethargic. It was not difficult for voters to see that one side was in a commanding stance, and perceptions in a campaign are important.

Nearly everything went right for supporters during the campaign. One hit opponents scored was in getting inexperienced reporters to regularly repeat as fact their claim that Nevada had “the most liberal abortion law in the nation.” Actually, it was nonsense. State legislators had brought state law into line with Roe, and—this being Nevada—had stopped there. It was the same thing most states had done.

But that tactic didn’t matter. Nearly two decades of legal abortion in the state had not brought forth much evidence of whatever a “most liberal” law was supposed to produce that might alarm voters, who went to the polls and voted to retain the law in a 63 to 37 percent landslide. Even a last minute flap over a dead newborn in a Las Vegas hospital that was drummed up by a Las Vegas columnist to hurt the referendum did not defeat it. (The incident was later investigated by a grand jury which found no reason for action.)

The vote did more than just uphold the statute. It shook the confidence of politicians in their view of what Nevadans believe, shifting influence to abortion supporters. It gave new stature to those who had led the campaign and drew many women into activism. And, under a provision of Nevada referendum law, the state abortion law could no longer be changed by the legislature. Any changes lawmakers wanted would have to go on the ballot for another public vote. Abortion rights in Nevada were as strong as the state could make them, and if the U.S Supreme Court ever overturned Roe, empowering state legislatures to enact new laws, Nevada would be shielded from those who wanted to outlaw abortion.

Flashback

There has always been a group within abortion supporters who feel that Roe v. Wade was a mistake. At the time the ruling came down, the nation’s legislatures were in a multi-year process of moving toward change in their abortion laws. Some, such as New York in 1970, had already changed their laws. This process was certainly underway in Nevada.

In 1967, the Nevada Medical Association endorsed reducing abortion restrictions to make the procedure more available.

In 1968, the Nevada Committee for the Rights of Women sponsored a conference on abortion in Carson City.

In 1969, physicians Stanley Ames and Louis Tyrer spoke on the medical features of abortion before an audience of ministers at the Clergy Counseling Center, a Las Vegas association created to counsel women on alternatives to illegal abortions or, when unable to dissuade them, to aid them to obtain safe abortions.

In 1969 and 1971, the Nevada Legislature processed abortion bills. They did not pass but they were seriously heard and served to further educate the public—and a bill was expected to return in 1973.

In a speech at New York University in 1993, civil rights attorney Ruth Bader Ginsburg gave voice to the view that Roe went too far.

“The 7-2 judgment in Roe v. Wade declared ’violative of the Due Process Clause of the Fourteenth Amendment’ a Texas criminal abortion statue that ’[excepted] from criminality only a life-saving procedure on behalf of the [pregnant woman].’ Suppose the court had stopped there, thus declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force? Would there have been the 20-year controversy we have witnessed[?] … In most of the post-1970 gender-classification cases, unlike Roe, the court functioned in just that way. It approved the direction of change through a temperate brand of decision-making, one that was not extravagant or divisive. Roe v. Wade, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

A change that comes from the public’s elected representatives is always more likely to be accepted than one that is handed down as an edict from an unelected judiciary. There is a place for such sweeping rulings, but there is also a place for judicial restraint. One of the effects of Roe is that abortion supporters did not continue their efforts at changing state laws, to secure their victory against future court rulings. They mostly turned to other issues.

From time to time, women would become alarmed and re-enlist in the issue, but it was usually temporary. In 1992, the U.S. Supreme Court ruling Planned Parenthood of Southern Pennsylvania v. Casey allowed abortion restrictions—in the immediate case, “informed consent” and a 24-hour waiting period—which, coming 20 years after Roe, seemed to younger women to signal a new and unaccustomed official hostility to abortion rights, inspiring a new wave of activism that waned after a year or two.

As good as a mile

Elsewhere in that same 1993 speech, Ginsburg made reference to recent events, which likely included the 1990 Nevada referendum when Nevada women got out in front of the problem. She said:

“The most recent [Casey] decision, although a retreat from Roe, appears to have prompted renewed dialogue, a revival of the political movement in progress in the early 1970s. That renewed dialogue, one may hope, will, within a relatively short span, yield an enduring resolution of this vital matter.”

What had happened in Nevada certainly suggested a course of action for other states, where politicians similarly took the safe, anti-abortion stance and assumed the public approved. Sue Wagner, elected Nevada lieutenant governor in the same election when Nevadans voted for legal abortion and a principal in the refeendum, did some missionary work among officials of other states, to make sure they knew what happened with the referendum and its value in removing abortion as an issue from election campaigns. At meetings of groups like the National Conference of State Legislatures, she raised the matter as something that could work in their states.

Just over half the states have referendum laws. Not all those states were fertile ground for ballot measures on abortion, but some states were. And politicians weary of the abortion issue would likely have seen what was in it for them. Had women in several states launched referendums, it would have sent a powerful message, revitalized the listless abortion movement and gotten a whole new generation involved.

But no such thing happened. There was always resistance, and the national organizations never changed their reluctance to trust in popular support. Meanwhile, justices of the U.S. Supreme Court kept retiring and kept being replaced, moving the court closer and closer to an anti-Roe majority.

Political scientist Lokken said of the abortion issue: “In a lot of those states, they would have taken it off the table. They missed a real opportunity.”