The 2006 election season has been an especially busy one for the pro-life movement. Many pro-lifers have been actively supporting Republican Senate candidates in the hopes that a Republican-controlled Senate will give President Bush’s judicial nominees a better chance of confirmation. The referendum on South Dakota’s abortion ban has received considerable media attention. Furthermore, in recent months many pro-lifers are focusing their efforts on stopping a Missouri initiative that would protect cloning. However, receiving considerably less attention, are a pair of important citizen initiatives in California and Oregon that would require minors to notify their parents before having an abortion.
These two ballot initiatives appear at a time when there is a greater scholarly consensus about the effectiveness of parental-involvement laws. I recently analyzed data from five states that passed parental-involvement laws after 1995. Since this time, the reduction in teen abortions was considerably greater in these five states than in the nation as a whole. Furthermore, in these five states, the incidence of abortion for minors fell faster than the incidence of abortion for non minors. Additionally, comprehensive studies which have appeared in journals as diverse as Journal of Policy Analysis and Management, The New England Journal of Medicine, and Contemporary Economic Policy have found solid evidence that parental-involvement laws are correlated with reductions in teen-abortion rates.
Even though these kinds of parental-involvement laws are effective and have enjoyed popularity among pro-lifers, many in the right-to-life movement have frowned upon using the citizen initiative as a mechanism to advance pro-life legislation. Statewide ballot campaigns typically require expensive media campaigns. Furthermore, pro-lifers often find themselves outspent by abortion advocates who have a financial stake in maintaining easy access to abortion.
Many of these of these concerns are legitimate. However, the citizen initiative process does offer pro-lifers some advantages. First in many states, gerrymandered legislative districts have all but assured that Democrats will maintain majority control of the state legislature for years to come. This often makes it very difficult for pro-life legislation to even receive consideration. Furthermore, placing pro-life legislation directly on the ballot will prevent any kind of legislative compromises that would damage or weaken the legislation. However, perhaps even more importantly, citizen initiatives can often be used to amend state constitutions. This makes it harder for legislation to be nullified by a hostile judiciary.
Interestingly, California provides a good example of how judicial activism can obstruct statutory pro-life legislation. In 1987 a pro-life parental-consent bill was enacted in California. However, an injunction prevented enforcement of this legislation and it was not until 1996 that the bill reached the California supreme court. In a 4-3 ruling the California supreme court actually upheld the constitutionality of the bill, but allowed time for a rehearing. Unfortunately for pro-lifers, one of the judges in the majority retired before the re-hearing and the new appointee voted with the three in the minority to create a new majority against the law. Similarly pro-life parental-involvement laws have been either delayed or struck down by state courts in Georgia, Minnesota, Mississippi, South Dakota, and Tennessee.
Now, the fact that there are many ballot questions involving pro-life issues this fall may seem a bit unusual to young pro-lifers. However, this should be nothing new pro-life veterans. Before the Supreme Court’s Roe v. Wade decision, pro-life battles were fought at the state level. Supporters of abortion rights made progress in the late 1960s expanding access to abortion in California, New York, Hawaii, and Alaska. However, in the early 1970s, supporters of abortion lost high profile referendum campaigns in both Michigan and North Dakota despite dramatically outspending their pro-life opponents. These losses, coupled with the fact that New York state legislature nearly passed a law which restricted access to abortion, led many to believe the abortion-rights movement was losing momentum in the early 1970s.
Needless to say, pro-lifers in California and Oregon still have their work cut out for them. It is typically far easier to defeat an initiative than to enact one. And once again pro-lifers will likely be outspent by their pro-choice counterparts. Still pro-lifers have reason to be optimistic. The partial-birth-abortion campaign has been effective at shifting public opinion in a more pro-life direction during the past several years. Furthermore, pro-lifers have become more adept at using the media to promote and defend their position. These facts, and the willingness of pro-lifers to seize the initiative, may well win them some unexpected blue-state victories in 2006.
– Michael J. New is an assistant professor at the University of Alabama