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April 01, 2013 4:54 PM Antichoice Civil War?

By Ed Kilgore

Salon’s Irin Carmon is an intrepid reporter of the wars over reproductive rights, so I’m inclined to defer to her interpretation of the recent cascade of state legislation banning relatively early-term abortions. She thinks it reflects one side of a “civil war” within the antichoice movement:

For years, a civil war has been brewing in the right-to-life movement, between the absolutists, who want to pass Personhood amendments and “heartbeat” bans that grab headlines, and the careful incrementalists, who are mounting a long-term campaign to stigmatize abortion and make it inaccessible through seemingly common-sense restrictions. Jack Dalrymple, the governor of North Dakota, clearly falls into the former camp: “Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,” he said in a statement when he signed several unconstitutional anti-abortion bills. The same thinking applied in Arkansas’s legislature, which passed a twelve-week ban over the objections of the governor, who pointed out it would just be dismissed in court.
They’re wrong, of course. The Supreme Court has repeatedly held that you can’t ban abortions before viability. That’s why the incrementalists hate this stuff — which they, probably correctly, point out just galvanizes pro-choice people.
Jim Bopp, the general counsel of the National Right to Life Committee since 1978, has been blunt about laws like the ones passed in North Dakota and Arkansas: “Useless and potentially dangerous.” In a 2007 memo, Bopp, who is also special counsel to Focus on the Family, plainly laid out the strategy for overturning Roe v. Wade and banning abortion everywhere. “The Supreme Court’s current makeup” — which hasn’t substantively changed since Bopp was writing — “assures that a declared federal constitutional right to abortion remains secure for the present. This means that now is not the time to pass state constitutional amendments or bills banning abortion.” Why? It would be a waste of money at the risk of courts strengthening abortion rights, especially if the Court decided to reiterate its support for abortion rights by saying it’s protected by equal protection under the Fourteenth Amendment.

Clearly both Bopp and Carmon are more certain than I am about Justice Kennedy’s current thinking on the constitutional law of abortion, after his strange majority opinion in the 2007 “partial-birth abortion” case of Gonzales v. Carhart. And I’m not the only one who’s nervous about where the Court stands today, per this reaction to Gonzales v. Carhart from the Gutthmacher Institute:

The longer-term implications of the Supreme Court’s decision to uphold the ban are extremely ominous. The ruling opens the door for states to enact—or reenact—restrictive abortion laws without health exceptions, with an understanding that the courts likely will uphold them. And Kennedy’s paternalistic and moralistic statement of the “reality” that “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” coupled with his “unexceptionable” conclusion (notwithstanding “no reliable data to measure the phenomenon”) that “some women come to regret their choice to abort the infant life they once created and sustained,” appear to invite states to require women seeking an abortion to be provided with “informed consent” information designed to persuade them to continue the pregnancy. Proposals already on the table would require such women to view an ultrasound of the fetus or be told scientifically unsound “facts” linking abortion to breast cancer or future mental health problems. Finally, beyond these incremental restrictions on abortion access, the willingness of the newly constituted Court to depart so dramatically from earlier precedent is seen as a further indication of the fragility of Roe v. Wade itself.

Assuming that reaction was alarmist, and/or that the blatant defiance of Roe being exhibited by Republican legislatures provides Court conservatives with the wrong kind of raw material to undermine abortion rights, then there are a couple of other possibilities explaining antichoice activist behavior (aside from the obvious desire of people who claim to believe we are living through an American Holocaust to publicly posture), per Carmon:

[W][hat are the absolutists after, besides scoring easy points with their base? Well, for one thing, court cases take years to wind their way through, and if Republicans somehow manage to capture the presidency in 2016, they could shift the Supreme Court math in their favor. That seems to be what Mathew Staver of Liberty Counsel was getting at when he said of pro-choice litigators, “They ought to hold off on their celebrations. The cases have a long way to go through the court system.”
There’s another game going on here, called out by Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project, in an interview with the AP: ”I don’t believe these bans are going to take effect, but the danger is that they make the other laws look reasonable.” Indeed. How much have you heard about North Dakota’s requirement to make abortion providers have admitting privileges at a local hospital versus the sweeping bans?

In that reading, the flat “fetal heartbeat” bans are a diversionary tactic, and the real goal is denying reproductives rights in fact if not in law by denying women abortion services. I suspect there are all sorts of overlapping reasons for the sudden extremism, but we should all agree they ought to make prochoice folk wake up and smell the peril.

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.

Comments

  • c u n d gulag on April 01, 2013 6:11 PM:

    Not to sound like TOO much of a religious bigot, I'm concerned about ANY abortion case brought up in front of the SCOTUS, because we have 6 Catholics on the SCOTUS.
    6!!!
    Now, some of them are might be "lapsed" Catholics, but there are 5 Justices, outside of Sotomayor, who could defer to Rome on abortion based on their faith, and what the Pope says.

    So, I'm more than a bit worried if this ends up with the SCOTUS.

  • joanneinDenver on April 02, 2013 11:22 AM:

    I am a pro-life feminist. I believe that the Constitution is the law of the land and also that Roe was wrongly decided because the biology of pregnancy was not accurately described. I believe that life begins at conception. I believe that the only way to reconcile these two beliefs is for SCOTUS to overturn Roe and declare that life begins at conception and therefore must be protected from that point forward or for pro-life forces to work towards a Human Life Amendment and finally to be successful.

    My stated positions were the positions of the pro-life movement until 1994 when the republicans finally won in Congress, based, in part, on promoting
    a Human Life Amendment. After the 1994 election, the strategy changed. The republicans and most of the pro-life movement abandoned the campaign for a Human Life Amendment or advocating for Roe to be overturned and abortion outlawed. Rather, the new strategy is to regulate abortion which has the larger import of carving up a civil right. Most importantly, the philosophical position is now that abortion is a states rights issue and Roe should be overturned on that basis and the issue returned to the individual states. This is Scalia position and it is also the position of the Catholic bishops.

    The "cry" is "let the people decide, not the courts." That would destroy a civil right and set the precedent for the majority in each state to decide who is a person and who is not. That is why the tactic in the states is to promote either personhood amendments or outlandish abortion regulations.

    The personhood legislation in the Congress also has a sinister clause. It claims that Congress can define the terms in the 14th amendment - who is a person - who is a natural born citizen-who is to be covered by the "due process" clause.

    It is the constitution that is under attack.