Settle ban in court

Supporters of a ban on certain types of abortion will present the Legislature with petitions bearing an impressive 82,372 verified signatures, twice the number necessary to send the issue to a public vote. Considering that a prime argument by opponents is that the ban is unconstitutional, however, lawmakers should should use their option of simply approving the proposal, setting it up later for a fight in the courts.

The judiciary is the proper place for this issue to be aired because this is not directly about banning a procedure referred to in the petitions as partial-birth abortion. There have been only two abortions in Maine in the last 15 years that could be characterized as such. This means, from the pro-life side, that the total number of abortions are unlikely to change under the ban and, similarly from the pro-choice side, that access to an abortion would barely be reduced.

This vote, instead, is about positioning. The pro-life side, having lost the constitutional fight 25 years ago, looks for any way possible to erode the right established in Roe v. Wade, build a public mandate and send a message to congressional leaders. The pro-choice position is largely defensive; it sees any infringement on the ability to choose an abortion leading to further infringements. The public referendum process is too blunt a tool to slice the stated arguments from the inferred.

The courts, however, have dealt repeatedly with the question of whether states can prohibit a certain abortion procedure. In every state where the law has been challenged, it has been thrown out or has yet to be decided. If opponents of the ban believe the Maine proposal is similarly flawed, they will want to see it in court as soon as possible.

It is likely that groups such as the Christian Civic League can rally enough voters in a slow election year to pass the abortion ban. But even if they cannot, the ban has enough support to merit consideration by the court. Rather than forcing the state to endure six months of debate that could well prove pointless, legislators can put this question of a fast track to a conclusion.