Dropping the Mask of Anti-Choice Paternalism

If you want to understand the significance of the new laws in Kansas and Oklahoma banning a particular method of abortion deemed the safest for second-trimester procedures, please read Dahlia Lithwick’s comprehensive analysis at Slate today. I won’t try to go through the whole thing, but her key insight is that these laws try to import the tactics of the successful campaign against third-term abortions into earlier abortion bans, with the very clear aim of encouraging the courts, finally, to overturn Roe v. Wade. But here’s the wrinkle: in making this shift anti-choicers have been forced to drop the crocodile tears they shed in the past for the poor pitiful pregnant women involved:

One aspect of the new Kansas and Oklahoma bans is different from the onslaught of recent legislation and it’s worth noting here: Unlike many of the so-called TRAP laws (for targeted regulations of abortion providers) or the mandatory ultrasound or waiting period laws, the new “dismemberment abortion” bans don’t even pretend to have a basis in protecting the welfare of the pregnant woman. That was the other legacy of Kennedy’s Carhart holding: Any abortion regulation was justifiable if it helped confused women make better decisions. As the New York Times‘ Linda Greenhouse put it at the time the case was decided, “never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health—mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.” Greenhouse quoted Yale Law School’s Jack Balkin as pithily summarizing Kennedy’s conclusion about women post-Carhart as “the ‘new paternalism’: ‘Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.’ ”

That opened the door for years of new paternalism, laws that pretended to worry about the width of clinic corridors and scarier warnings, as they chipped away at the actual right to choose. The new Kansas ban simply sets aside this paternalism, which supposedly attempts to help women make better decisions by inserting Congress, her state Legislature, admitting privileges, and an ultrasound probe into her body. The new bans go back to the pro-life movement’s original emphasis on protecting the fetus. The Kansas and Oklahoma regulations ignore the mother and go straight for the gross-out. It’s a watershed of sorts.

Perhaps the best way to put is it that as they near their goals, anti-choicers are a bit uncertain as to which argument will finally pull a fifth SCOTUS Justice over the line. The Kansas/Oklahoma statutes may reflect a decision not to play a guessing game with Anthony Kennedy, but instead to draft laws that will lead more directly to a new constitutional scheme once President Walker or Bush or Rubio has appointed a new unambiguously anti-choice Justice a bit down the road.

This is indeed a high-stakes election coming up.

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.