“Freedom oF choice” continued from page 12
Civil rights lawyer Ruth Bader Ginsburg said Roe v. Wade overreached. PHOTO/COURTESY ACLU
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 g A m b l i n g s tAt e 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 12 | RN&R | 06.06.19
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.