The Anti-Choice Olympics

Ever since the 2010 elections, Republican legislators and governors have been in a competition to see who can enact the most blatantly unconstitutional–at least according to existing precedents–laws on abortion in the country. The first batch, typically banning abortions after around 20 weeks of pregnancy, were keyed to dubious claims that this is the stage when a fetus could experience pain. Earlier this month the Arkansas legislature picked up the pace with a bill banning abortions after 12 weeks of pregnancy, this time making the alleged earlier point of detection of a fetal heartbeat the rationale. That bill was passed over Gov. Mike Beebe’s veto.

Now North Dakota–a state with just one abortion clinic–is springing into action with a bill (just sent to Republican Gov. Jack Dalrymple) banning abortions after just 6 weeks of pregnancy, based on an even earlier assumption about the advent of a fetal heartbeat. Also under consideration in one chamber of the legislature is a bill emulating Mississippi’s efforts (temporarily held up in the courts) to harrass abortion providers out of the state via bogus medical certification requirements, and a couple of bills adopting the “personhood” principle (giving a fertilized ovum the full protections of the law). So I guess Dalrymple will have the opportunity to sign the 6-week bill as a “compromise.”

With Republican-controlled legislatures all over the South talking about emulating Arkansas’ law (which may already be behind the times if North Dakota trumps it), the rather transparent purpose of this trend (other than bragging rights) is to force a fresh Supreme Court review of Roe v. Wade and Planned Parenthood v. Casey, the decisions banning state prohibitions on pre-viability abortions. Given the door apparently opened by the Court (or more specifically, Justice Kennedy) in the 2007 Gonzales v. Carhart decision to state regulations of abortion rationalized as needed to protect the “mental health” of the poor ignorant women resorting to the procedure, Roe is indeed vulnerable. More to the point, Barack Obama’s re-election means that conditions on the Court for undermining Roe may not get better in the foreseeable future.

And so the race for the honor of provoking the Court into taking up these challenges is gaining speed. If, in the meantime, these laws hamstring abortion providers and/or make life difficult or impossible for women seeking abortions, that’s all the better for America’s anti-choice athletes.

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.