A Glimpse of a Post-Roe World

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

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.