When we have come to the point that more than 330 abortion restrictions have been introduced in 43 states since January, it’s awfully hard to keep track of which are worth worrying about and which are merely variations on old themes. Of course all such bills are worth worrying about when they have the intent, and effect, of shutting down multiple clinics, terrorizing women, and micromanaging physicians. But a new breed of anti-choice laws passed in Kansas and Oklahoma warrant a closer look precisely because they are radically different from previous laws as well as a variation on a pernicious old theme.
Last week, Kansas passed an extraordinary ban on the most common method of second-trimester abortions. Oklahoma passed the same ban one day later. Similar bills have now been introduced in Missouri, South Dakota, and South Carolina. The Kansas law, modeled on draft legislation from the National Right to Life Committee, bans so-called dismemberment abortions, defined in part as “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus.” In case anyone in Kansas were left unmoved, a dismemberment abortion is further defined as “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.”
With deliberate echoes of the war against “partial-birth abortions,” “dismemberment abortion” is a completely nonmedical term that would likely sweep in most procedures known as dilation and evacuation. D&E is standard practice used in virtually all second-trimester abortions and is generally agreed to be the safest and least traumatic method. Physicians who violate the new laws can be charged with a misdemeanor on the first offense and felonies thereafter. And partly because the bill was written by nonphysicians using nonmedical terminology, there is a good deal of uncertainty among doctors about precisely which procedures will be illegal come July.
The Kansas law provides for an exception only if a woman’s life or health is at risk, with a health risk defined specifically as “substantial and irreversible physical impairment of a major bodily function.” It does not provide exemptions for other physical risks, for mental health, or for cases of incest or rape. D&Es have long been the standard of care in this country and for the World Health Organization for second-trimester abortions. Because most women abort in the first trimester, D&Es accounted for approximately 8 percent of abortions last year in Kansas. If virtually all D&Es are now illegal, other, substandard procedures—lengthier, more dangerous, and far more traumatic—will be the only option. Kansas already bans abortions after 22 weeks. The D&E is generally used after 13 weeks.
In some ways, these new second-trimester bans are of a piece with the national movement to intimidate and harass physicians, with strategies that range from forcing them to perform unwanted ultrasounds and read from factually flawed “informed consent” scripts, to forcing them to obtain admitting privileges at local hospitals (which may refuse to provide them)—or new efforts to simply refuse to let doctors learn about abortion in the first place.
I spoke with Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, who made precisely this observation. “This is just another example of politicians trying to dictate how doctors can practice medicine,” she said. “This is about preventing women from having the health care and the medical attention they need.” All of these state requirements and regulations are part of an “incremental approach” described by Dawn Johnsen in a 2009 article in the Yale Law Journal as “the cumulative effect of legal restrictions short of bans and extralegal pressures to restrict the provision of legal abortion services and create ‘abortion free’ states without criminalization.” This incremental approach was seen as a better alternative to a full-scale assault on Roe v. Wade.
The new Kansas bill is also familiar (and deliberately crafted to be) insofar as it deploys the tactics that prevailed in 2007 when the Supreme Court decided, by a 5–4 margin in Gonzales v. Carhart, to uphold a federal ban on “partial-birth abortions,” also known as D&X. That was, in fact, the last major abortion case the court decided. And as Tara Culp-Ressler explained in January, the whole point of the “dismemberment abortion” ban is to ape the strategies of the partial-birth abortion campaign, including provocative language and images, graphic descriptions of medical procedures in deliberately nonmedical terms, and an effort to launch a national shock campaign. Because Justice Anthony Kennedy—who had voted to protect the core holding of Roe v. Wade with his vote in Planned Parenthood v. Casey in 1992—was persuaded to vote to do away with “partial-birth abortions,” this whole campaign may well have been crafted to get this issue before the Supreme Court once again.
As Ressler notes: “Back in 2006, before the Supreme Court issued its final ruling on the ‘partial birth abortion’ ban, NPR reported that ‘even some supporters of the ban say that if it is upheld, they could then move on to try to outlaw the far more common D&E procedure, whose description is nearly as unpleasant as that of the D&X.’” Kathy Ostrowski, legislative director of Kansans for Life, told the National Catholic Register that the Supreme Court itself is “waving us in” on a law such as this. The strategy involves “trying to teach enough so that we gravitate toward and enact bills that have a real chance of permeating those hurdles that the Supreme Court has set up. ... The ban of dismemberment abortion, carefully defined, very much parallels what happened with ... partial-birth abortion.”
There is a problem with this logic, of course. In his opinion in Gonzales v. Carhart, Kennedy carefully distinguished between the illegal D&X and the still permissible D&E, indeed he justified banning the former in part because of the availability of the latter: “Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E. One District Court found D&E to have extremely low rates of medical complications. ... Another indicated D&E was ‘generally the safest method of abortion during the second trimester.’ ”
Still, given that the long game for the anti-abortion movement is always going to be finding that fifth vote to overturn Roe once and for all, and that some of the abortion regulations teed up for review at the Supreme Court involve free speech claims (for instance North Carolina’s controversial mandatory ultrasound law) or making abortion all but unobtainable for significant numbers of low-income women across Texas (a provision now pending in the federal courts), it’s clear that bans on “dismemberment abortions” may be the better vehicle. As Ostrowski told the National Catholic Register about the Supreme Court justices: “We want to get to the day where they have [a] case in front of them and say, ‘We’re overturning the essential holdings of Roe.’ ”
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. At least the pretext has fallen away again that the woman is being helped when she is denied medical care. Perhaps the irony of arguing that it is all for her own good as you simultaneously strip away her right to a safe second-trimester abortion proved impossible to sustain.