John McCain knows how to dog-whistle.

At Wake Forest University two weeks ago, in a speech outlining his judicial philosophy and describing the judges he would nominate for the Supreme Court, McCain decried justices who use " ‘penumbras,’ ‘emanations,’ and other airy constructs…as poor substitutes for clear and rigorous constitutional reasoning." There wasn’t a word in McCain’s speech about abortion, or Roe, but there didn’t need to be – he was referring, obliquely but distinctly, of course, to the "zones of privacy" found in the "penumbras and emanations" around certain amendments to the Constitution. "He’s learning the secret code," Elizabeth Shipp, political director at NARAL Pro-Choice America, said in response. "The secret code is what he has to say in public when people are actually paying attention to him to appeal to independent and pro-choice Republican voters. He can’t come out in a major speech and say, ‘Yeah, I want to see Roe v. Wade overturned.’"

Anti-choice activists nationwide hear the whistle and are getting ready for him – and his judicial nominees. If McCain wins his bid for presidency, has the opportunity to nominate a Supreme Court justice, and puts forth a nominee who shares his disparaging view of the foundation of the right to privacy, Roe’s vulnerability is guaranteed – and the legislative landscape in states across the country will have been strategically prepared. Meanwhile, Americans are aware that federal protection of abortion is vulnerable, but 58% are not aware of the laws protective of or hostile to abortion in their own states.

A widely-noted strategy of the anti-choice right is to introduce outright, immediate bans on abortion, bans state legislatures know are unconstitutional and pass with the explicit intention to challenge Roe at the Supreme Court level – a strategy that got underway in 2004, when South Dakota introduced the first abortion ban to be considered by state legislature in over a decade. The most notorious of such bans, lacking even an exception for rape, incest or a woman’s health, the South Dakota ban was passed and signed into law in 2006, but blocked from going into effect by a successful popular referendum process to overturn it. This fall, South Dakota again will consider an outright ban, this time with exceptions for rape and incest.

The Second Prong

While the outright outlawing of abortion puts a particularly urgent face on the issue of judicial nominees, there’s a second, subtler prong to the strategy, one that suggests that anti-choice activists are setting their sights on a time far beyond Roe’s reversal. States with anti-choice legislatures have hit upon a novel way to use the law, creating bans on abortion that are not in constitutional conflict with Roe because they go into effect, or are "triggered," only upon the overturn of Roe. So-called "bans-in-waiting" go beyond states’ proclamation of their intention to outlaw abortion when they can constitutionally do so to outline what specifically would be illegal and what penalties would be incurred for illegal abortion when it constitutionally can be outlawed.

As recently as 2004, no state had a bans-in-waiting on the books. In 2005, in the wake of failure of the state’s immediate abortion ban to survive popular referendum, South Dakota passed the first; in 2006, Louisiana followed, and Kentucky and Missouri considered bans-in-waiting. In 2007, Mississippi and North Dakota added bans-in-waiting to their books and Oklahoma, Texas, and Utah all considered them.

Bans-in-waiting reflect anti-choice activists’ confidence that Roe will be overturned, says Katherine Grainger, vice-president of NARAL Pro-Choice New York, and demonstrate that "anti-choice activists are not waiting for Roe to fall to shape the post-Roe world." For Sondra Goldschein, state strategies attorney at the ACLU Reproductive Freedom Project, bans-in-waiting are "just the same" as immediate bans. "They show legislative intent to ban abortion," she says, and they "come as no surprise" to the advocates on the ground who are well-acquainted with their state legislature’s hostility to women’s health and well-being.

Perhaps the most insidious aspect of bans-in-waiting is that because the bans are not currently in effect, and because there is therefore no individual who has standing to challenge the law, such bans cannot be challenged in court once they are passed into law. "Courts stop laws from going into effect – there has to be some kind of immediate urgency that the court has to rectify. And the bans-in-waiting don’t have that effective date," Grainger explains. Goldschein notes that it’s "unprecedented" for a legislature to pass laws with an unspecified future effective date. While in some states, the state’s own constitutional provisions on privacy – often far more expansive than federal constitutional protections – could conflict with the bans, reproductive rights litigators can’t make any arguments in court against the bans until they effectuate.

So, in the twenty-five states without a popular referendum process, the only way bans-in-waiting can be overturned is if the legislature that passed them will repeal them. But legislatures passing bans-in-waiting are "packed with anti-choice legislators that keep getting re-elected year after year," Grainger notes, so "the possibility of that occurring is slim."

For anti-choice activists, bans-in-waiting have another advantage over outright bans – because they can’t be attacked in court, unlike unconstitutional bans on abortion, bans-in-waiting cost the state nothing to defend. Grainger says that the Louisiana state legislature wanted to pass an outright ban shortly after Hurricane Katrina hit the state. When pro-choice advocates asked legislators whether they really wanted to spend millions of taxpayer dollars defending an unconstitutional ban as the state recovered from a natural disaster, legislators responded, " ‘Oh, that’s going to look really bad, let’s make it a ban-in-waiting,’" says Grainger. "I think that’s largely how these things are thought of. ‘We don’t want to pay; we don’t want to look bad. We want to get re-elected, but we also want to outlaw abortion. How can we do that?’" So, ‘bans-in-waiting’ allow them to do so."

Though the period from 2005 to 2007 saw an increase in the number of states introducing and passing bans-in-waiting each year, 2008 has been a slow year for bans-in-waiting, says Celine Mizrahi, legislative counsel for the Center for Reproductive Rights. Only Virginia proposed a ban-in-waiting and it hasn’t moved. In this election year, Mizrahi sees that all the action is on ballot initiatives, including South Dakota’s ban, Colorado’s and Montana’s personhood amendments, and California’s parental notification measure.

A Lab of Our Own

South Dakota has been first out of the gate on both the immediate ban and the ban-in-waiting, turning the state into a laboratory for anti-choice legislation. The pro-choice movement needs a lab of its own, says Grainger. Galen Sherwin, director of the Reproductive Rights Project at the New York Civil Liberties Union, hopes legislation currently being considered by the New York state legislature can be one such model for other, more moderate states.

Roe’s vulnerability has prompted many reproductive rights advocates to consider statutory codification of Roe in state law – analysis done by the Center for Reproductive Rights suggests that if Roe were overturned, abortion would likely become illegal in twenty-one states, remain legal in twenty, and in nine the future of legal abortion is unclear. Sherwin and other New York state reproductive health advocates started working on the state’s Reproductive Health and Privacy Protection Act (RHAPP) in the wake of the federal abortion ban and as Gonzalez v. Carhart was moving through the federal court system. Concerned that New York might be vulnerable if Carhart resulted in a repeal of Roe, New York advocates learned that the state’s own law on abortion had not been updated since 1970. "What we found when we looked at New York law was that in fact because New York changed its laws to legalize abortion in 1970, which was before Roe v. Wade was even decided, it’s now significantly out-of-date and we’ve never gone back and revised it," Sherwin explains. As such, it failed to include the health exception that Carhart itself compromised.

For some pro-choice legislators, RHAPP represents the first opportunity to take a stand on affirmative pro-choice legislation, rather than battling legislation designed to curtail abortion rights. And some of those legislators haven’t been as quick to sign on to RHAPP as they may have been to oppose anti-choice legislation. "New York has not had a germane abortion bill on the floor since the seventies," Grainger explains. "They’ve never had to think about it," says Sherwin. "They’re used to responding [to choice issues] in a defensive posture. We’re working to give them a sense of comfort that protecting women’s health should not be an act of courage it should be the natural part of their job."

In Illinois, reproductive health advocates are pushing what the ACLU’s Goldschein calls reproductive justice legislation: the Reproductive Justice and Access Act would not just codify Roe but ensure access to funding for abortion services – as well mandating comprehensive sexuality education, contraceptive access, and other reproductive health care. Goldschein credits reproductive health advocates in New York and Illinois for being "at the point of legislation" on affirmative reproductive health bills, but notes that states all across the country aren’t just fighting back restrictions but that "all states have as their ultimate goal the right to access the full spectrum of reproductive health care, including abortion." Seven other states have already passed statutory protection for abortion, including California, Connecticut, Hawaii, Maine, Maryland, Washington, and Nevada.

One thing is clear to advocates working on affirmative legislation: no bill could be incremental, or moderate, enough to placate anti-choice protesters. Working on the RHAPP, a bill that does little more than codify existing federal law into state statute, has still aroused the ire – and misinformation – the anti-choice right is famous for. "It’s obvious that opponents are not responding to any particular provision of the bill but that they oppose the notion of women’s reproductive freedom and of the freedom to decide whether or not to become pregnant or whether or not to bear a child," Sherwin observes. "Over-arching protection for liberty and dignity for women: that is what is the focus of opponents." And it will be John McCain’s target too, should he get the chance.

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