Then what?

Roberts is on the bench. Alito is on the bench. Abortion opponents hope that, now, the abortion rollback starts. Are abortion supporters prepared?

On Oct. 3, 2005, George Bush greeted U.S. Supreme Court Justice Sandra Day O’Connor, who had just announced her retirement. O’Connor provided one of the votes that protected legal abortion on the court.

On Oct. 3, 2005, George Bush greeted U.S. Supreme Court Justice Sandra Day O’Connor, who had just announced her retirement. O’Connor provided one of the votes that protected legal abortion on the court.

She remembers what it was like.

“It turned out to be safe, but I didn’t know that then,” she said. “I could have died. Plenty of women did, then.”

Eleanor, now in her 80s, underwent an abortion in the days when it was still against the law. Her most vivid memory—and this is common among women who had the experience—is of the paint on the ceiling. It was the 1950s. The abortion took place in another state, and Eleanor eventually moved to Nevada.

“I wouldn’t want a girl, a woman, to go through that now,” she said, worrying about the possibility of illegal abortions coming back.

It would be an arresting headline. “Supreme Court overturns Roe.”

Democratic candidate for governor Dina Titus has sounded the alarm: “If, or more likely when, the new Supreme Court overturns Roe v. Wade, the nation’s governors will be the last line of defense for reproductive freedom.”

Not in Nevada.

Columnist Katha Pollitt has written, “But, of course, if the Supreme Court overturned Roe, abortion would not be off the table at all. It would be front and center in 50 state legislatures.”

Make that 49 state legislatures. Not Nevada.

How did Nevada become an exception in the politics of one of the nation’s hottest issues? Because post-Roe, 49 state legislatures would have authority to pass laws making abortion legal or illegal. The Nevada Legislature would not.

Before Roe
In the late 1960s and early ‘70s, there was a legislative and political process underway in which abortion supporters were making their cases in communities and legislatures. States were slowly changing laws, and there were organizations—such as the California Bar Association—who proposed that government simply get out of the role of deciding the issue. Abortion bans had originally been adopted not because of moral issues but because the procedure was risky and often fatal. With antibiotics at hand and antiseptic procedures in place, risk was no longer an issue. Abortion advocates argued that there was no longer any reason for government to be more involved abortions than in appendectomies. On July 2, 1970, the huge Lutheran Church in America accepted abortion.

Half the legislatures in the nation, including Nevada, were considering abortion bills and starting to enact them. In Nevada, moderate groups and churches supported change and held educational events. A conference on abortion was held in the state capital on Nov. 22, 1968. The Women’s Society of Christian Service held another one at St. Paul’s Methodist Church in Reno. Another, a gathering of physicians and ministers, was at the Clergy Counseling Center in Las Vegas.

In California, the Legislature and Gov. Ronald Reagan made abortion legal. In Nevada, the Assembly approved a bill making the procedure legal, but it was killed without a hearing in the Senate—a highly unusual procedure.

Then, when abortion was suddenly made legal by judicial edict in the 1972 U.S. Supreme Court decision Roe v. Wade, it energized the religious and cultural right at a time when they were already organized and on the move against the Equal Rights Amendment. The two causes were married by the right, and moderate churches, taken aback by the firestorm, mostly fell silent. The religious view became a rightist one.

U.S. Justice Ruth Bader Ginsburg is a supporter of abortion rights, but she also believes that Roe interfered with the grassroots movement in which a cultural and political consensus was evolving. She has said, “Roe v. Wade … halted a political process that was moving in a reform direction and therefore, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

After Roe, supporters of abortion did little to secure their victory, relying instead on court power to assure abortion rights. That worked as long as there was a pro-Roe majority on the court. Advocates let down their guard, figuring the right to abortion was secured for all time, and mostly turned to other issues. Educating the public became less urgent. The women’s movement failed to continue building its political base on the issue or making its case, instead leaving the initiative to the right and merely putting out fires whenever anti-abortion measures were proposed. A similar lassitude prevailed in Nevada.

Anticipating that the U.S. Supreme Court might one day change its position on abortion, Sue Wagner came up with a strategy that took abortion out of the hands of the Nevada Legislature.

Photo By David Robert

But then in 1990, under the leadership of Washoe County Sen. Sue Wagner, Nevada abortion supporters broke out of that lethargic cycle. Wagner proposed that they use the state referendum law to put abortion up to a vote of the public.

A referendum is different from an initiative petition. The initiative proposes a new law. The referendum takes an already existing law and puts it on the ballot for a vote of approval or disapproval. Wagner wanted to put Nevada Revised Statute 442.250, which was enacted to bring the state into compliance with Roe, on the ballot for a public vote.

What Wagner had in mind was more than just winning public support for the law. Nevada’s referendum law says that once the public puts its stamp of approval on a statute, it cannot be changed by the Legislature without another public vote.

It was a risky strategy. National organizations like NOW, remembering that Nevada voters had defeated a 1978 Equal Rights Amendment ballot measure, opposed Wagner’s idea. But her instincts were right. By 1990, abortion had been legal for 18 years. It had become the status quo. In the Legislature, some conservative Republicans had expressed discomfort with disrupting that status quo. The public, it turned out, felt the same way and voted 201,004 to 115,707 to enshrine Roe in state law. Whatever happened to Roe, legal abortion would stand undisturbed in Nevada.

Recognizing allies and adversaries
The result of that vote was a jolt to state politicians, who had long assumed that the anti-abortion stance was the popular one. That was shown most dramatically in July 1989 when the U.S. Supreme Court upheld Roe but allowed some abortion restrictions by the states. Nevada Gov. Robert Miller responded by switching sides, from support to opposition to abortion.

There had always been a problem with defining who were abortion supporters. Journalists tended to use support or opposition as shorthand for candidates’ stances on women’s rights generally. (It’s easier to ask, “Are you for abortion?” than to master the subtleties of employment discrimination or displaced homemaker issues.) In addition, reporters—unless they’ve covered a legislature—are not usually sophisticated about issues related to abortion, which are the whole ball game in Nevada. And some abortion supporters themselves tended not to nail candidates down on those matters related to abortion. Merely asking a candidate, “Are you for or against abortion?” is not very helpful, especially in Nevada, where the voters control the basic abortion law.

By contrast, Wagner (in her recently published oral history) recalled her response when a candidate asked for her endorsement. “But anyway, I wanted to know how he felt on this issue, and I just did not want a response to, ‘Are you pro-choice?’ because the real issues are … the secondary issues—notification, consent, access, etcetera, etcetera. Maybe even stem-cell research.”

It became more important to do that after the 1990 referendum, and it will become even more important if the U.S. Supreme Court overturns Roe. In Nevada, with the prospect of outlawing abortion off the table as a result of the referendum, the only option left for abortion opponents at the Legislature will be to try to enact restrictions on abortion. Advocates on both sides of the issue will have to get a lot better at screening candidates and their positions. Because it has not been done well in the past, some politicians have flown below the radar.

For instance, there is Republican James Gibbons, now a member of Congress running for governor. For many years, women’s leaders accepted at face value his statements, which he had been making since he entered politics as a candidate for the Legislature, that he was an abortion supporter.

However, as a member of the U.S. House, he has voted repeatedly for restrictions on abortion, and he has taken to using abortion supporters as a rhetorical punching bag, as in his famous plagiarized Elko speech ("I want to know how these very people who are against war because of loss of life can possibly be the same people who are for abortion?"). He has voted to ban late-term abortions, to forbid stem-cell research, to make it a crime to harm a fetus during commission of another crime, to make it a crime to drive a teenager to get an abortion, and to ban the use of U.S. aid to other nations for family planning.

In an insightful January article in the Las Vegas Review-Journal, Jane Ann Morrison was the first reporter to draw attention to the conflict between Gibbons’ votes and his supposed pro-abortion stance. Morrison pointed out that Gibbons had called himself a “pro-choice Republican” when he ran for governor and lost in 1994. She quoted a Reno Gazette-Journal article during that campaign that said he “favors abortion on demand as a pro-choice Republican.”

When she called Gibbons about his congressional votes, he said, “I support existing Nevada law, and as a governor, I’ll support Nevada law. I do not support government funding of abortions, and I do not support late-term abortions. … I still say that I have not changed my position. I don’t believe government ought to be making decisions for individual people.”

Gibbons has a zero rating from the National Abortion Rights Action League, as do Nevada’s other congressmembers John Ensign and Jon Porter. Harry Reid has a 29 percent score while Shelley Berkley has a 100 percent.

Language as strategy
If the Supreme Court overturned Roe, that would not make abortion illegal. It would just return the issue to the states. In Nevada, the only thing legislators could do on their own would be to restrict how abortions were performed. Besides, at the moment, there are still five pro-Roe votes on the nine-member court.

However, abortion opponents hope that the court, with the addition of justices John Roberts and Samuel Alito, will give state legislatures greater latitude to restrict the conditions under which abortions can be performed.

There is a considerable history in Nevada of attempts by state legislators to restrict abortion. These measures aren’t always intended to be enacted. Because virtually every bill gets a hearing, anti-abortion bills are sometimes introduced, not with any hope of enactment, but in order to get horrific language associated with abortion publicized in the press, thereby reducing support for abortion.

Discussing a 1983 measure that would have required a certificate of death and formal burial or cremation of aborted fetuses, Wagner says, “That, again, goes back to the whole idea that you make this uglier and uglier, if you will, to make people say that it is just getting to be so awful that you’d have to have a death certificate and then cremation of an aborted fetus, that that’s something that’s so distasteful to the average public.”

Sen. Maurice Washington sponsored legislation to require parental consent before teens can get abortions. The measure failed to pass, but Washington could sponsor additional measures to restrict abortions.

Photo By David Robert

Former Nevada governor and senator Richard Bryan says, “The classic case in point—partial-birth abortion. That is not a recognized medical procedure. That is a crafted description that makes people recoil.” Yet abortion opponents have had great success in getting most journalists to use it instead of “late-term abortion.”

Thus, bills like the one to make it a crime to harm a fetus while committing a different crime serve more than just a law enforcement purpose.

The way terminology can undercut support for abortion was shown by an incident in 1990. A few days before the referendum election, a Las Vegas columnist ran a piece in which he said health care workers at a local hospital put to death a baby that was born alive in an abortion by removing him from oxygen. The columnist gave the baby a name ("Adam") and accompanied the claim with lurid details. Opponents of the referendum seized on the column, mounting a picket line outside a local hospital. Each time the story of the protest was reported by a television station or newspaper, the details of the original incident were repeated. Support for the referendum started falling. The story received no coverage in Northern Nevada, where reporters had heard a similar tale told by physicians who came to the state to campaign against the referendum.

When the election was over, the referendum passed easily, but the majority for it in Democratic Las Vegas was eight percentage points lower than in Republican Reno. (A grand jury investigation of the hospital incident resulted in no indictments or other official action.)

Chipping away
Bryan says he would expect, in the absence of state legislative authority over the basic abortion statute, for abortion opponents to introduce measures that will erode abortion rights or make it difficult to obtain an abortion. “My sense is they try to chip around it,” he said.

Because such anti-abortion measures come before the legislature, and governors must sign them, it makes it even more important for interest groups and journalists to define the issues and press candidates to be forthcoming before the election.

When candidate Bob Beers was asked by Morrison about his stance, he said, “My position on abortion is that it is not a valid measure of candidates for governor or Legislature. The voters put in place a strident pro-abortion law decades ago, and it can only be modified by a vote of the citizens. An abortion bill will not be presented for a governor’s signature.”

In fact, abortion bills may very well be presented to a governor for his signature. Bills dealing with issues like parental notification or a state call for a federal constitutional convention to outlaw abortion have gone to Nevada governors for approval.

Former Nevada assemblymember Robert Sader, an abortion supporter but also a parent, voted for parental notification in 1985. During the next two years, between legislative sessions, he said he picked up information that made it clear that the interest of opponents of abortion was less in notifying parents than enacting a wall of many small restrictions around abortion, effectively preventing the procedure from happening.

“So it seemed to me at the time that in the balance that the rights of the parents were fundamental enough and important enough to suggest that these court procedures ought to be required for minors. Now after that occurred, there was this continuing group of provisions, or let’s say new proposals, consistently proposed by the right-to-life groups that chip away at abortion laws, or a woman’s right to choose.

“I just grew both impatient and exasperated with the constant attempts to curtail that the right to life lobby proposed.”

Past Nevada legislatures have processed legislation asking Congress to consider amending the Constitution to overturn Roe, call for a federal constitutional convention to overturn Roe, require doctors to inform patients of facts associated with abortion, allow hospital employees to refuse to participate in abortions, require hospitals to compile and make public complications resulting from abortions, prohibit commercial use of fetuses, prohibit research use of fetuses, provide vehicle license plates promoting alternatives to abortion, make abortion grounds for divorce, require notice to spouse, require notice to parents, prohibit public financing, require efforts to preserve the life of an aborted fetus.

All these measures could be revived, and all would have publicity value for anti-abortion advocates.

It is uncertain what, if any, measures will be introduced at the 2007 Nevada Legislature. The first list of bill drafting proposals does not come out until July, and any U.S. Supreme Court ruling between now and 2007 could add proposals to the list.

Melissa Clement, a lobbyist for Nevada Right to Life at the 2005 legislative session, says her group would want the Legislature to enact “informed consent” laws governing abortion. Such consent is not usually spelled out in the law to apply to specific medical procedures, but some states—notably Michigan—require that a woman seeking an abortion be given factual information (prescribed by the state) about the medical aspects, alternatives to abortion and assistance that may be available. In Michigan, this material must be supplied to the patient at least a day before the abortion. In addition, Clement says she would want patients informed of a supposed link between breast cancer and abortion. (Scientists say the link, known as the ABC link, is unsupported by evidence.)

She said, “We want to focus on the ones that are going to protect women because, quite honestly, other than the baby, they’re the biggest victim in abortion. So things that—full consent would definitely be something that we would like to work on. We just haven’t had the advocates.”

One such advocate is Assemblymember Sharron Angle of Washoe County, who sponsored legislation in 2001 requiring government publicizing of the alleged ABC link. She would be a likely candidate for proposing such restrictions, but she is running for the U.S. House, so she will not be back at the next Legislature.

Another prospect is Sen. Maurice Washington, also of Washoe, who unsuccessfully sponsored legislation to require parental notification. He says only, “We’re a little ways out from the session right now, so that remains to be seen.”

Women like Eleanor will be waiting.

“I was scared absolutely to death,” Eleanor recalled. “As it turned out, mine was pretty safe—I actually had a real doctor, and he had clean space. Not everyone was so lucky. It wasn’t rare that things went wrong. We were always reading about women dying. I just don’t want to see it again.”