E-Mail This Article to a Friend Last choice In the wake of Bush’s re-election, a triumphant right is planning its assault on reproductive rights BY DEIRDRE FULTON

FOR MANY PEOPLE, George W. Bush’s re-election serves as both a wake-up call and a warning that women’s reproductive rights are in grave danger. The next four years could well see a push to overturn Roe v. Wade; however, before mounting that assault, anti-choice activists will support a collection of legislative initiatives designed to chip away at Roe’s legal underpinnings until it is too weak to withstand a court challenge.

Conservative-Christian forces used similar tactics in Bush’s first term, and were mostly successful — Bush nominated 20 anti-choice judges to federal appellate courts and signed two major pieces of legislation (the Partial-Birth Abortion Ban and the Unborn Victims of Violence Act) aimed at weakening abortion rights. And right-wingers wielded significant influence during the recent presidential election, working hard to make sure Bush and other pro-life lawmakers would again dominate the political landscape.

"The president has a mission, and he has full support, to restrict access to abortion, contraception, and comprehensive sex education," says Melissa Kogut, president of the Massachusetts chapter of NARAL Pro-Choice America (formerly the National Abortion and Reproductive Rights Action League). "With the Republicans in control, the leadership is just dead set on restricting access to abortion. There’s just this complete synergy between the president and Congress on that."

But while Christian fundamentalists and other anti-choice conservatives are "certainly taking credit for the president’s re-election and they’re certainly a powerful lobby in the administration," they don’t have "a monopoly on morality," insists Vicki Saporta, president of the National Abortion Federation (NAF). Nor do they speak for most Americans on the issue, she says: "There is no mandate to overturn Roe." Indeed, despite the post-election emphasis on "moral-values" voters — 28 percent of whom defined moral values in terms of abortion (preventing it, presumably) — polls conducted earlier this year showed that 57 percent of Americans support some version of a woman’s right to choose.

Accordingly, pro-choice advocates stress that for the next four years, women must be vigilant, involved, and forceful in reminding Congress and the Bush administration of the pro-choice majority — particularly in relation to the following key issues, which will surely be part of the right wing’s coordinated assault on women’s health.

• Roe v. Wade. The scariest prospect is that a reconfigured Supreme Court, stacked with Bush-appointed anti-choice justices, will have the opportunity to overturn the landmark 1973 Supreme Court decision legalizing abortion. This would strip women of federal constitutional protections, giving individual states the ability to impose abortion restrictions — or to ban the procedure entirely. The New York–based Center for Reproductive Rights estimates that if Roe falls, women in 30 states (such as Rhode Island and many Southern states) could lose their right to choose; the group classifies 21 of those 30 states as high risk. The nation’s other 20 states (including Massachusetts, Maine, New Hampshire, and New York) seem to be safe (see map).

However, several pieces would have to fall into place before this could happen. Replacing Chief Justice William Rehnquist, who voted against Roe in 1973, would not alter the 5-4 majority in favor of abortion rights that exists on today’s Supreme Court. Bush would need the opportunity to replace Sandra Day O’Connor, John Paul Stevens, or Ruth Bader Ginsburg (all rumored to be nearing retirement) to swing the court against Roe. Bush’s "model justices," Antonin Scalia and Clarence Thomas, are strictly anti-choice; it’s likely that his nominee would be, too.

"We have a very fragile balance on the court currently," says NAF’s Saporta. "And his appointees to the lower courts have consistently been very conservative and anti-choice. So that doesn’t bode well for him appointing a moderate."

If the balance does shift, it would take just one case to erase 31 years of reproductive freedom. Here’s how: anti-choice forces would appeal the decisions, made by three different US District Court judges in three different states, that declared the Partial-Birth Abortion Ban unconstitutional because 1) it does not include a provision allowing an abortion to preserve the health of the mother; and 2) the wording is too broad and could go beyond barring just so-called partial-birth abortions to ban second-trimester-abortion procedures that are safe and legal.

Such an appeal could end up at the doorstep of an anti-choice Supreme Court — and if it opted to take the case, then the government could give the justices the occasion to "revisit" Roe, a move that even advocates admit involves questionable legal reasoning. (Louise Melling, director of the ACLU’s Reproductive Freedom Project, notes that the government did just that in the most recent cases dealing with reproductive rights.)

Overturning Roe would leave what the Center for Reproductive Rights calls "a patchwork of rights." Some states have existing bans (called "trigger laws") that would go into effect the moment Roe falls. Others have bans that have been stymied by state-court injunctions; if given the opportunity, anti-choice forces would certainly move to have those injunctions lifted. Some state legislatures would likely propose, and pass, new bans. In still other states, abortion rights are protected under the state constitution (as in Massachusetts) or by existing laws and statutes (as in Maine).

• Child Custody Protection Act. If it passes, this bill would make it a federal crime for an adult to help transport a minor across state lines for an abortion unless that minor has met every one of the home state’s requirements. Supporters call it a safeguard against circumvention of abortion laws, but pro-choice advocates — who have dubbed the bill the "Teen Endangerment Act" — say it ranges from inconvenient (in some towns, the nearest clinic might be across state borders) to unsafe (as John Kerry pointed out during the second presidential debate, it could be dangerous "to require a 16- or 17-year-old kid who’s been raped by her father and who’s pregnant to have to notify her father") to illegal (state laws, they argue, cannot travel with you).

"Most minors involve their parents in their decision to have an abortion," Saporta points out. "And those who do not, usually do so for very good reasons — because they’re in dysfunctional families where they actually fear repercussions and violence. And you would want teens in difficult situations to turn to a trusted adult — an aunt, a grandmother, a sister, a clergyperson. And to prosecute those people for helping that teen obtain abortion care only seeks to put those teenagers at risk."

Passage of the Child Custody Protection Act would affect teens here in Massachusetts, where the law requires minors younger than 18 to get the consent of one parent.

• The Weldon Amendment. Over the weekend, House and Senate negotiators approved the Weldon Amendment, originally known as the Abortion Non-Discrimination Act (ANDA), cleverly embedded with the provision for federal family-planning funds in the House version of the 2005 appropriations bill. Under today’s laws, health-care entities — physicians, hospitals, HMOs, insurance plans — are required to provide abortion access; individual providers can opt out on moral or religious grounds, but the clinic or organization is required to provide referrals. However, the Weldon Amendment limits the ability of federal, state, and local governments to withhold federal money from those entities that don’t follow the rules.

The Weldon Amendment will have particularly harmful repercussions for low-income women, who depend on federal money to ensure they get the information, care, and referrals necessary for their health. By nullifying or qualifying that promise from the government, the Weldon Amendment will make it more difficult for low-income women — who might not be able simply to go to another clinic — to get the services they need.

Melling, of the ACLU, calls the legislation radical, and says it "suggests a purposefulness as [anti-choice forces] go forward now." Acts such as this serve as "signals," she explains, that encourage and reassure them of a shared goal.