Political Animal


September 04, 2012 12:44 PM A Glimpse of a Post-Roe World

By Ed Kilgore

Thanks to Todd Akin, there’s renewed scrutiny of the positions and rhetoric of major Republican candidates and office-holders about abortion. It’s no longer enough to call oneself “pro-life” and let it go at that; it’s beginning to dawn on both political observers and voters that there is a vast landscape of wackiness in the “pro-life” camp that goes vastly beyond the suggestion that these folk are just sensitive souls who want to stop late-term abortions or make sure sex-selection of offspring doesn’t sweep the nation.

The latest exhibit of antichoice extremism is from another Republican nominee for the U.S. Senate, Rep. Rick Berg of North Dakota, who is in a competitive race with former attorney general Heidi Heitkamp.

As reported by BuzzFlash’s Zeke Miller, as a state legislator Berg voted for a bill to make performance of (or administration of drugs leading to) an abortion a major felony offense (punishable by sentences up to life-without-parole). Miller suggests the bill didn’t have exceptions for pregnancies caused by rape or incest, but did provide for legal abortions if the woman’s life was in danger. Think Progress’ Annie-Rose Strasser reports the bill had no exceptions at all.

As the Miller/Strasser difference of opinion indicates, scrutiny of crazy abortion proposals is still focusing on exceptions to general abortion bans, creating (I fear) the distorted impression that they matter more than the basic position on the legality or illegality of the 99-plus-percent of abortions that don’t fall into the excepted categories. Aside from that problem, the bill Berg voted for illustrates a different and potentially even more explosive issue: the definition of abortion. The North Dakota bill, like many others (not to mention the Personhood Amendments that seek to place a total abortion ban into state or federal constitutions), defines abortion as the termination of pregnancies after fertilization of the ovum. That means birth control methods that rely on or may involve interference with the implantation of a fertilized ovum in the uterine wall—most obviously “Plan B” contraception, but also intrauterine devices and the common oral contraceptives taken by many, many millions of women—would be prohibited. To put it even more bluntly, such legislation would mean that a pharmacist dispensing “the pill” could be locked away for life without parole.

Now obviously, the North Dakota bill in question, had it passed, could not have been enforced without a successful constitutional challenge (or at least that’s what we assume). But such legislation is designed (a) to create the foundation for a direct challenge to Roe v. Wade when the time is ripe, which would almost definitely arrive if Mitt Romney is elected president and gets a Supreme Court appointment confirmed, and (b) to establish a hard-line state position on abortion to take effect if and when Roe is overturned and abortion policy becomes a state matter once again.

In other words, despite its hypothetical matter, these laws are a serious business. We already know from the failure of “Personhood Amendment” ballot initiatives in Colorado and Mississippi that sizable majorities of Americans think criminalizing the termination of pregnancies after fertilization—regardless of the rare exceptions allowed—is not a real good idea. But it’s reasonably clear supporters of these initiatives benefitted from the absence of any real fear they’d actually take effect; it seemed a sort of angels-dancing-on-the-head-of-a-pin metaphysical argument on “when life begins.”

It’s far past time for prochoice advocates to go to the trouble of explaining how close we are to a post-Roe world where crazy bills passed by Republican-controlled state legislatures stop being a widely-ignored sop to loud conservative interest groups, and start becoming a real threat to the most basic reproductive rights. Forcing Rick Berg to defend or repudiate the North Dakota bill, and in any event holding him accountable for supporting it, would be a good start—along with abandonment of the exclusive focus on highly marginal “exceptions” to bans on abortion and on types of birth control most people consider contraceptives.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • Diane Rodriguez on September 04, 2012 1:31 PM:

    The majority of discussion around minimizing rights of women is done by men. Certainly, that is no accident. I continue to assert that all this crazy shit around implementing inferior status to women, denying control of our bodies (and people of color, poor people in other regressive policies) will backfire in the voting booth.

    It's really part of a growing impotence and desperation among the group of white males who have always held power while exerting little effort to do so. When you look at the situation in perspective, rage gives way to annoyance. Demographics will make them irrelevant, hopefully sooner rather than later.

    Women won't support being shoved back into the 19th century.

  • jsjiowa on September 04, 2012 1:33 PM:

    I think some of this is occurring. I was especially struck by a quote from an interview with Madeline Albright yesterday, that focused on how these ideas marginalize women:

    "Her reference was to language in the GOP platform that outlaws abortion even in cases of rape or incest. It's a policy that Romney's running mate, Rep. Paul Ryan (R-Wis.), has embraced throughout his career, before distancing himself in the wake of Akin's remarks. Romney has always supported such exceptions. Even so, Albright argued, he had "become captive to a party that does in fact think that women should not have voices."


    That attempt to treat women as irrelevant has been what has bothered me most. In the GOP's eyes, only the fetus has a right to life, a right to be protected. The pregnant woman is only an incubator, not a living, breathing, thinking adult human who has any rights. That is especially offensive.

    Add to that they want women to be deprived of birth control that enables them to time their families, and how that would restrict women who want to pursue education or career first. I do not want to go back to a time when women had no choices. It would start with curtailing reproductive choices, and ripple to other areas that would restrict and limit and discriminate against women, I'm certain. I don't know if younger women really understand what's at stake, but they need to. It's frightening.

  • TCinLA on September 04, 2012 1:39 PM:


  • martin on September 04, 2012 1:42 PM:

    Why oh why can't liberals protect their rights the same way the NRA does. No concessions, no compromise, no exceptions and demonize all who oppose them. There are more women than gun owners in this country, maybe it is time they got together.

  • Leopold Von Ranke on September 04, 2012 1:51 PM:

    Been waiting for someone to see that the narrowing of the argument to "rape, incest, life of the mother" is a red herring designed to overturn Griswold, both legislatively and Constitutionally. Thanks.

  • c u n d gulag on September 04, 2012 1:52 PM:

    These are the same type of people who in the past centuries were against civil rights for women, blacks, and gays.

    And they realize they've looked like assholes each time. And lost each time - at least so far.

    So, to stop looking like the hateful types of assholes who try to deny rights to other people, they needed to pick a civil rights issue, so they could look like hero's.
    And they chose - zygotes.

    Other, real live people can still go and feck themselves, and die, or get sick, as far as these religious nuts are concerned.

    But, a tiny of cluster of cells - ah, now THAT must be protected!

    I swear, these people look at themselves as the Martin Luther King Jr's of Zygote Civil Rights.

  • Mimikatz on September 04, 2012 1:56 PM:

    The tendencies described In the article and comments of treating women as irrelevant are especially ironic in light of articles such as the one in Sunday's NYTimes Mag about how women are more adaptable in the new economy and have often become primary breadwinners as men have lost jobs in the manufacturing sector. And women are the majority of college and graduate school grads, and even show more ambition as teens. Not only has is been much written about, it is my experience working with young people. So who's becoming irrelevant? Plus women vote at a much higher rate than men, comprising 54% of the electorate in 2008 and I bet it will be up to 55% this time. (Black women voted in the highest percentage of any group.)

    I have been arguing for years that the pro-choice movement should copy the tactics of the anti-abortion forces, who made great gains focusing on extremes like late-term abortion, and move the wedge to the other end, highlighting anti-abortion folks' opposition to contraception. Who knew they would do it themselves? Given the trends I discussed in the first paragraph, I expect young women are and will become aware and will vote in large numbers this time around, skepticism to the contrary notwithstandig.

  • c u n d gulag on September 04, 2012 2:13 PM:

    While we on the left look at it as a dystopian novel about a bleak future, The Dominionist Christians have been treating "The Handmaid's Tal," like and instruction manual.

  • c u n d gulag on September 04, 2012 2:15 PM:

    ... "The Handmaid's Tale," like an...

  • exlibra on September 04, 2012 2:22 PM:

    gulag, cheer yourself up; at least your typo didn't read "Handmaid's Tail"...

  • Keith M Ellis on September 04, 2012 2:48 PM:

    The encroaching equivocation of contraceptives with abortifacients is a pro-life strategy that has as its basis more myth and folklore than fact and science.

    The exact rate of efficacy via prevention of implantation for the birth control pill is unknown but is, nevertheless, extremely small. Even in the case of IUDs this is being overstated by pro-life activists — copper IUDs prevent conception primarily by interfering with fertilization, not implantation.

    It's true that these and other forms of birth control would be adversely affected by a legal regime that saw prevention of implantation as being equivalent to killing — such a rationale would necessarily seem to require a zero-tolerance view. On the other hand, such a view would direct close attention to every and all such failure of implantation and, for that matter, very early spontaneous abortions and all factors that arguably contribute.

    Not to mention fertility treatments, which remain conspicuously absent from most pro-life propaganda.

    This is all to say two things: first, that such attempts at equivocation should be countered by the actual science involved, which shows the issues to be much more ambiguous than even in the case of IUDs, where it's thought to be unambiguous. Second, success at this equivocation by pro-life activists will very likely be a pyrhic victory, as the majority of Americans aren't comfortable outlawing first trimester abortions, certainly not with outlawing all abortions; and while outlawing most contraception is the implicit aim of many pro-lifers, to reveal this as the natural consequence of pro-life activism would result in its death as a political movement. Which, you know, would be a good thing.

  • Daryl McCullough on September 04, 2012 2:50 PM:

    In the same way that G. W. Bush turning budget surpluses into record budget deficits makes a mockery of conservative claims to care about fiscal responsibility, the embrace of draconian anti-abortion positions shows that conservatives don't really mean it when they talk about liberty or limited government.

  • JB Allen on September 04, 2012 3:38 PM:

    Something I don't understand: why hasn't there been more argument about the 13th Amendment's applicability in this case? How is forcing someone to have a child not akin to slavery?

  • boatboy_srq on September 04, 2012 4:37 PM:

    This is a case study in why the US electorate (or any other electorate, for that matter) should never believe a political party whose foundation rests on the extremism of religious zealotry when it says it's focused on economic factors (remember "jobs, jobs, jobs"?). Between the 2000-2006 years when the GOP held sway, and the last 19 months, all we've seen from the GOP is poverty-bashing, woman-bashing and minority-bashing, couched in the quaint phraseology of "personal responsibility," "fiscal responsibility" and "virtues of the free market."

    Diane Rodriguez and CUND are quite right to point out that womens' rights (to healthcare, family planning, careers, etc) are challenged almost exclusively by men - and increasingly, by wealthy white men.

    Mention this to any Tenther woman, and make a point that stopping at the Bill of Rights deprives them of the right to vote: the confused blinking is well worth watching as they digest that these blowhards are intent on making them second-class citizens by law as well as by practice.

    I'd have a glimmer of respect for these blowhards if they took a microsecond to consider the fate of all the foeti they insist be born to breathe the Free Air of America. Instead we have countless instances of slut-shaming for their mothers and hand-washing for the consequences of all the unexpected or unwanted children. "Pro-life" is as much a misnomer for these people as "pro-abortion" (as if anyone thought abortion - in a vacuum - were a good thing) is theirs for any pro-choice perspective.

    This strikes me as one instance where the anti-science bias of the Right can be used against them. AGCC, biological evolution and old earth cosmology are anathema to these people: shouldn't we point out that the zygote-as-citizen meme depends on the same science that supports AGCC and all the other theories they don't like? Shouldn't we force them to find Scriptural proofs for their claims? It would certainly shut them up for a while as they consult their copies of Teh Book.

  • Sam on September 04, 2012 4:48 PM:

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  • Varecia on September 04, 2012 5:04 PM:

    During my pro-choice activism in the early 90's I publicly stated that the ultimate goal of the anti-choicers included banning birth control, and the anti-choice people in my area scoffed and said that was ridiculous. But I read that in some really hard core anti-choice literature at the time and I knew they were deliberately clouding the issue in public. Here we are, about 20 years later and it was in fact on their long term agenda.

    Women WON"T stand for this!!!!

  • TooManyJens on September 04, 2012 6:11 PM:

    "That means birth control methods that rely on or may involve interference with the implantation of a fertilized ovum in the uterine wall—most obviously “Plan B” contraception, but also intrauterine devices and the common oral contraceptives taken by many, many millions of women—would be prohibited."

    Plan B does not interfere with implantation. Research conducted to answer that very question has found no evidence that it does anything but prevent fertilization.


    The evidence for everyday oral contraception interfering with implantation is weak at best. It's 99.999% speculation, all based on an "inhospitable uterine lining" that nobody has ever proven even IS inhospitable during a Pill cycle in which the woman ovulates.

  • latts on September 04, 2012 10:47 PM:

    That means birth control methods that rely on or may involve interference with the implantation of a fertilized ovum in the uterine wall—most obviously “Plan B” contraception, but also intrauterine devices and the common oral contraceptives taken by many, many millions of women—would be prohibited.

    The IUD is really the only method that probably interferes with implantation, and as noted above it most likely prevents fertilization-- almost everyone I know who has one stops having regular periods aside from occasional spotting.

    The irony is that Plan B is the exact same hormone that women use when they want to improve their uterine linings in order to improve conception chances... but only when taken after ovulation. Before, it signals to prevent ovulation, the same way the natural progesterone produced after one egg is released prevents others that have developed from launching. Like most hormonal meds, it functions differently at different times.

  • Keeping Track on September 05, 2012 3:53 PM:

    The whole "when life begins" dustup is a bunch of drama and rhetoric and suffers from a tragic lack of preciseness.
    If "life" begins with the union of sperm and ovum, then how can the sperm and ovum themselves be alive? Clearly "begins" is the problematic verb. For the sperm and ovum to be alive, then the unbroken chain of life must extend backward in time to the first sperm and ovum, either human or going really far back, of any kind. Even the bibleheads would trace the first sperm and ova back to Adam and Eve. So any way you slice it, life doesn't begin at fertilization. Or maybe these paragons of smarts really do think that sperm and ova are dead.