TEXAS — Framed on the wall in Kyleen Wright's office is a yellowed newspaper clipping from fall 1978.
The black and white photo shows Wright, then a 16-year-old in "very high platform heels," waving a homemade sign within a crowd of three dozen or so anti-abortion protesters.
"The goal was to raise awareness," said Wright, now president of Texans for Life Coalition, based in Arlington, Texas. "To force people to think about something unpleasant that they'd rather it just go away. We were trying to get media attention, and we did for a while."
The anti-abortion movement has gradually shifted its tactics away from the aggressive in-your-face demonstrations to discreetly working the state political system, and observers, legal experts and even pro-abortion rights groups admit the strategy is working. Since 2000, state legislatures have passed 435 abortion restrictions nationwide (260 in the past five years alone), a continuous streak of small, strategic and often overlooked anti-abortion victories.
While some of those laws are under challenge in federal court, November's recent election provided an adrenaline shot as numerous Republicans won previously Democratic-held seats at both the state and federal level, and Tennessee voters approved a dramatic anti-abortion state constitutional amendment.
Despite voters rejecting anti-abortion "personhood" amendments in North Dakota and Colorado, the pro-abortion rights camp remains on the defensive against a deliberate strategy to overturn Roe v. Wade, or at least get the U.S. Supreme Court to address the abortion question again.
"Unfortunately, I don’t think we've ever had the luxury of being on the offensive," said Cristina Page, author of "How the Pro-Choice Movement Saved America: Freedom, Politics and the War on Sex." "I don't see the pro-choice movement stepping up with any kind of inspired agenda other than protecting what we have. And that's been the case for a very long time."
Abortion laws today
A year ago in Texas, women could seek an abortion in 41 clinics. By Oct. 2, the number of clinics had dropped to eight, thanks to an anti-abortion measure passed by a conservative Texas Legislature that required abortion clinics be certified as ambulatory surgical centers and that physicians have admitting privileges at a nearby hospital.
Recently, the U.S. Supreme Court ruled that 13 of the shuttered clinics could reopen while Texas and the suing abortion clinics await a ruling from a panel of the federal 5th Circuit Court of Appeals on the merits of the multi-faceted law. Both sides are expected to file briefs in early December.
The requirement that state abortion clinics mirror the minimum physical and medical standards of an ambulatory or outpatient surgical center had the biggest, immediate impact. Many clinics couldn't afford the renovations and closed overnight.
On the surface, such rules sound either "reasonable or innocuous," said Carole Joffe, a professor at the University of California, San Francisco's Bixby Center for Global Reproductive Health and a professor of sociology emeritus at UC Davis. "But in fact, these restrictions are much more costly — both financially and in terms of literally being able to remain open — than the blockades of the olden days."
TRAP laws — Targeted Restrictions of Abortion Providers — are not a new approach by anti-abortion activists, although they've become much more effective recently, experts say.
Rather than focusing on laws that affect individual women, such as lengthening the required waiting period before an abortion or requiring more thorough parental consent, TRAP laws shut down entire clinics immediately, says Joffe.
And that's on purpose, advocates say.
"One of the things we're really focused on moving forward is clinic regulations," said Charmaine Yoest, president and CEO of Americans United for Life, the self-labeled "legal architects of the pro-life movement." "It's one of the things that upsets the other side the most, because they are profit driven, and the cheaper and shoddier they can provide their horrible product, the higher their profit margin. That's why they're so upset about clinic regulations."
In Texas, the building code for an ambulatory surgical center is 114 pages long and details the setup of the exhaust ventilation system, what ceiling tile and floor materials may or may not be used and how long hallways must be, among many other specifications.
"The TRAP laws, none of those are actually based on medical science," said Donna Barry, director of the Women’s Health and Rights Program at the Center for American Progress. "None of them will improve women's health … (by having) wider hallways or more parking spaces."
Both Mississippi and Alabama are also challenging TRAP laws that would have, in Mississippi's case, closed the state's lone abortion clinic.
"Restriction seems reasonable until someone realizes that there were no clinics (left) in Mississippi the ways the laws have added up," says Ted Jelen, a professor of political science at the University of Nevada Las Vegas. "This is de-facto prohibition even if it doesn't really say that."
Building momentum
Such laws don't pass without supportive elected officials, and thanks to decades of grass-roots efforts "in the trenches," the anti-abortion support team of legislators, governors and attorneys general is increasing, says Mary Spaulding Balch, director of state legislation for the National Right to Life Committee.
Along with expected yearly legislative victories, November's election gave additional energy to the anti-abortion movement as voters handed control of the U.S. Senate back to Republicans, who won control of the U.S. House in 2010. Republicans also made gains in state legislative and executive branches.
These officials help promote NRLC legislation that the public deems reasonable — like requiring that a parent be notified before their minor daughter has an abortion, or requiring that abortion doctors inform women about the development of the unborn child.
There is wisdom in taking small steps toward their goal because it doesn't draw as much attention as going in with guns blazing, says Joshua C. Wilson, a political science professor at the University of Denver.
Because state politics are not the dramatic, chained-to-the-abortion-clinic-door protests of the 1990s, the public has been mostly oblivious to the gradual coalescence of individual anti-abortion statutes into a formidable snowball of deterrents.
"Anti-abortion activists are quite strategic," says Wilson, author of “The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars.” "If they have trouble at the federal level, fertile ground is at the state level. People just don't follow state legislative politics and nobody pays attention."
Take Texas, where the general public apparently hadn't paid much attention until Democratic Sen. Wendy Davis filibustered for 11 hours to block a restrictive abortion bill and, as Wilson says, really "woke the country up to what had been going on for years at the state level."
"If you look at the general trend over the last 20 years you can make arguments for the anti-abortion/pro-life side as having the advantage, because they've been successful at the state level," Wilson says. "They really used these years to develop really impressive institutional resources, lawyers. Those things are huge gains on the pro-life side. You could say they have the momentum."
State-level battle
Pro-abortion rights advocates haven't been able to match their opponents' efforts on the state level, experts say.
"We pay for that time after time after time," says Page. "It's a nagging issue. Where we're needed most, we're least likely to have (the help)."
Guidestar.org, a nonprofit group that collects financial data, impact reports and other information from hundreds of thousands of nonprofits, lists 406 organizations under the Right to Life code, while 148 groups identify under Reproductive Rights.
A Wikipedia category search for "pro-choice" organizations in the United States yields 22 results. A search for "pro-life" nets 77.
The anti-abortion campaign is wonderfully diverse, says AUL's Yoest, and the variety of approaches play an important role in the overall strategy.
Some groups reach out to post-abortion women, others educate pregnant women and their partners about alternatives to abortion while others focus on getting anti-abortion legislators elected.
"We deliberately set out to put a strategy together that addressed the fact that the courts were blocking any kind of major overarching strategy," said Yoest. "In actuality, abortion is a lot like marriage, ultimately you want it to be controlled by the states anyway. So (we wanted to) go straight at that and start testing the limits of what the Supreme Court would allow."
Since 2011, AUL has helped enact 74 anti-abortion measures. In addition to the TRAP laws, Tennessee voters narrowly approved an amendment that declares "nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion," thus giving lawmakers more control over restricting abortion.
"The (TRAP) legislation … is perceived as some of the most threatening and pernicious we've ever seen," says Page. "It's extremely effective at shutting down services in a state almost instantaneously while at the same time seeming as if its purpose is safety for women, and (the pro-life) messaging on it is very convincing, even to our supporters.
"I've been working on this issue since 1999 and there have been a lot of annoyances," Page continues, "but this really actually feels like 'go time.’ ”
An optimistic Barry, with American Progress, is encouraged by steps like HB2303, a bill introduced in Pennsylvania to preserve the sanctity of the doctor/patient relationship by preventing the state from requiring that doctors provide their patients with medically inaccurate or non-evidence based information or practices.
"It's possible (the anti-abortion activists) have more stuff up their sleeve we don't know about," says Barry, "(But) once we start pushing some of this more progressive, proactive legislation (it will) show … that we've taken all we can take, and it's time to start protecting the right, instead of continuing to restrict it."
Yet, it's unlikely the anti-abortion side will ever stop fighting or tone down its efforts.
"This is the only social issue on which the conservatives are winning, or at least holding their own," says UNLV's Jelen. "(On) issues of personal morality, the right is losing the culture war. It's losing it on same-sex marriage, marijuana, on all that stuff. This is one where it's not changing, so this is too good an issue for the Republicans to let go."
What's coming
Not every state is pursuing a slow and steady game plan of hitting singles to advance the anti-abortion cause.
In North Dakota and Colorado, activists have been trying "for home runs," says Jelen, by pursuing laws related to "personhood," which would elevate all human beings, including those unborn, to full persons under the law. Although voters in both states rejected personhood amendments at the polls this month, Jelen calls this attempt to overturn Roe "the most drastic, but also the more promising."
The Supreme Court discussed the personhood question (see comments at 56 minutes) during arguments in Roe v. Wade, calling it "critical to this case," but never gave a definitive answer. Subsequent decisions by the Supreme Court have reaffirmed Roe v. Wade while ruling that states could not impose an "undue burden" on a woman's right to seek an abortion.
The result has been a growing patchwork of state laws that require waiting periods, informed consent, parental notification and reporting mandates on abortion facilities as states continue to guess at what does or doesn't constitute an undue burden.
Eventually, the Supreme Court will have to "give guidance and say these (laws) are permissible or they're not," says Caitlin Borgmann, a law professor at CUNY School of Law.
That direction likely won't come as a complete reversal of Roe v. Wade. Instead, the justices may rule on one facet, like the constitutionality of admitting privileges, or what "an undue burden" really means, or how robust the "health justification" of a law has to be, experts say.
"It's important for the public to understand that abortion is still protected under the Constitution, but the states have been allowed to do a whole lot of things that are inconsistent with that," Borgmann said. "The question is how far are they going to be allowed to go? We're still waiting to see what the Supreme Court will say about that."
Meanwhile, Wright spends her days lobbying, researching legislation, fundraising, attending anti-abortion events and speaking with students and civic groups. It's taken decades, but she's finally seeing her work resonate with more and more people.
While in the grocery store recently, a woman approached her and raved about the "pro-life" shirt Wright was wearing, asking where she could get one. And last year at her 35th high school reunion, Wright's formerly disinterested classmates received her with cheers and warmth she never received as an anti-abortion teenager.
"For the first time in 39 years of activism, I am frequently hailed as a hero when I go anywhere," Wright says. "It's kind of sweet after being not always warmly received. It's a new day for pro-lifers for sure."
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