John McCain's Anti-Choice Dogwhistles

Originally posted at RH Reality Check.

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 percent 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.