November 10, 2008

measure11_no_5ae67.JPGOverlooked perhaps in the historic vote that made Barack Obama the nation's first African-American president is something that didn't happen. With the defeat of the McCain/Palin ticket and its extremist anti-abortion platform, Americans voted against an abrogation of women's reproductive rights that might have taken a generation to undo. And by rejecting draconian ballot measures in Colorado, South Dakota and California, voters protected a woman's right to choose - at least for now.

To be sure, Obama's victory prevented the emergence of conservative Supreme Court supermajority committed to sweeping away Roe v. Wade. With the potential retirement of Justices Stevens (88) and Ginsburg (83), Obama may the opportunity to make at least two nominations to the Court. (There may be 14 openings on the nation's appellate courts, all but one which currently has a Republican majority.) Given Justice Kennedy's condescending and paternalistic opinion in the 5-4 Gonzales v. Carhart case upholding the so-called federal partial birth abortion ban, the direction of the Court and the fate of Roe surely hung in the balance last Tuesday.

On that point, John McCain, Sarah Palin and the Republican Party were quite clear. McCain not only supported judicial appointees in the mold of John Roberts and Samuel Alito, he reversed course to support overturning Roe v. Wade. And to be sure, the 2008 Republican platform incorporated Palin's extremist views on abortion, banning the procedure even in cases of rape and incest:

"We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children."

In Colorado, anti-abortion activists tried – and failed - to enshrine the GOP plank's logical extreme in the state constitution.

The ballot measure known as Amendment 48 would have defined a "person" as "any human being from the moment of fertilization." That ultra-hard line position would not merely have prohibited abortions in the state, as the New York Times noted, "it could ban widely used forms of contraception, curtail medical research involving embryos, criminalize necessary medical care and shutter fertility clinics." Opposed even by National Right to Life and Focus on the Family (groups which argued the measure's "timing and language are not right"), the amendment was overwhelming rejected by Colorado voters by a lopsided 73% to 27% margin.

In South Dakota, too, residents voted down harsh new abortion restrictions designed to prompt a constitutional challenge to Roe. Two years after voters narrowly beat back a ban on all abortions in the state, Measure 11 supporters crafted a new amendment offering limited exceptions for incest, rape or the life and health of the mother. (That would be the same "health of the mother" John McCain derided with air quotes during his final debate with Barack Obama.) By 55% to 45%, South Dakotans said no to the unconstitutional infringement of women's reproductive rights.

Even California had abortion restrictions on the ballot. For the third time, Golden State voters faced a measure putting in place onerous new requirements for parental notification. (As the Times noted, "would make it difficult for young women caught in abusive situations to obtain an abortion without notifying their parents, even in cases where the father or stepfather is responsible for the pregnancy.") By a narrow four point margin (52% to 48%), Proposition 4 and its 48 hour notification rule were rejected by Californians.

Of course, while pro-choice advocates may have won some battles on Election Day, the war is far from over. Across the nation, anti-abortion forces continue to advance "slippery slope" laws design to gradually undermine the pro-choice consensus in the United States.

In the wake of their victories with so-called partial birth abortion laws and the Unborn Victims of Violence Act, abortion foes continue to push legislation advancing pseudo-scientific (and unsubstantiated) claims about "fetal pain" and "post-abortion syndrome." (The demeaning language of the latter played an essential role in Justice Kennedy's shocking Gonzales v. Carhart opinion.) Other states look to enact fraudulent health warnings and burdensome new regulations on the operation of family planning center, laws which have left the entire state of Mississippi with a single abortion clinic. And 4 states - Alabama, Louisiana, Mississippi, and Oklahoma - now require mandatory ultrasound procedures for all women seeking an abortion.

When all else fails, there is demonization. The day after Barack Obama's historic election, Jill Stanek, the source of the discredited "infanticide" smear against him, denounced the President-elect as a "barbarian."

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