Imagine that you live in Oklahoma, and have an unwanted pregnancy. It could be the result of rape, or birth control that failed, or the kind of momentary mistake many women make at one time or another; from a legal point of view, it doesn’t really matter. Under a law enacted this week, you’ll have to have an ultrasound. It will likely have to be performed vaginally, whether you like it or not, because the law mandates the use of the technique that “would display the embryo or fetus more clearly.” You would be forced to listen as your doctor describes fetal development in detail.
One rationale for the new law, which passed over the veto of Oklahoma’s governor, is that it provides women with important information. But under a companion law that also passed this week, a doctor can withhold information from a woman that might lead her to choose abortion. He or she could, for example, decline to tell a woman about a fetal abnormality, and she would be unable to sue after the baby was born. “Oklahoma is putting its thumb on the scale, on the one withholding information, and on other forcing women to listen to information in ways that could be quite distressful,” says Nancy Northup, president of the Center for Reproductive Rights.
The Center for Reproductive Rights, which has already challenged the Oklahoma ultrasound law, has filed more new lawsuits in the past year than it has at any time since the 1990s.
The Oklahoma law is in some ways extreme, but it’s not unique. All over the country, states are racing to pass ever more stringent restrictions on abortion. Northup’s center, which has already challenged the Oklahoma ultrasound law, has filed more new lawsuits in the past year than it has at any time since the 1990s.
Part of what’s going on is a backlash against health-care reform. More than that, though, abortion opponents see that even with Obama in the White House, aspects of Roe v. Wade are vulnerable.
In 2007, the Supreme Court opened the door to new abortion restrictions in Gonzales v. Carhart, which upheld the so-called partial-birth abortion ban. To the court, it didn’t matter that the law didn’t provide an exception when a woman’s life or health was at stake. As the New England Journal of Medicine wrote, “The major change in the law this opinion brings with it is the new willingness of Congress and the court to disregard the health of pregnant women and the medical judgment of their physician.” The decision also showed the justices’ willingness to buy into antiabortion rhetoric about the procedure’s harm to women. As Justice Anthony Kennedy wrote in his majority opinion, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
Antiabortion forces are eager to test these new constitutional limits and see how far they can go. Since George W. Bush was successful in filling lower courts with antiabortion judges, they have a largely friendly legal environment. Abortion opponents “are not picking these states by accident,” says Donna Crane, policy director at NARAL Pro-Choice America. “They’re picking these cases in circuits where George Bush has packed the courts.”
Several new laws challenge key provisions of Roe v. Wade. This month, Nebraska enacted a ban on abortion after 20 weeks, citing the possibility of fetal pain, with only narrow exceptions for extreme danger to a woman’s health. If upheld, it will set a new, restrictive standard for abortion, one not tied to fetal viability. Another new law, signed the same day, requires mental-health screening for women seeking abortions.
Meanwhile, under a law Utah enacted in March, a woman who causes her own miscarriage can be charged with homicide. The law was a response to a case in which a desperate 17-year-old, seven months pregnant, paid a man to beat her up in the hopes of ending her pregnancy. It didn’t work, and she eventually gave birth and put the baby up for adoption. Prosecutors were frustrated when they couldn’t charge her with criminal solicitation to commit murder.
At this point, it’s hard to tell how the Utah law will be enforced, though there’s at least the potential that any miscarrying woman could fall under suspicion. After years in which antiabortion forces have worked to portray themselves as advocates for women, they’re now openly advocating that women be imprisoned for reproductive crimes.
Finally, at least two states are mounting direct challenges to Roe v. Wade. In November, Colorado voters will decide on a law that defines human life as beginning at the moment of conception. Mississippi will follow in 2011, and activists are working to get similar language on ballots in several other states.
But the danger isn’t so much that Roe v. Wade will be overturned any time soon. It’s that it will be hollowed out and rendered meaningless for ever more women, particularly those who are young, poor, or living in right-wing states. Even assuming that Obama picks a staunchly pro-choice justice to succeed John Paul Stevens, that still leaves four firmly antiabortion judges along with the wavering, ambivalent Anthony Kennedy. The future of reproductive rights thus lies in the hands of a man who has already ruled that women need protection from the consequences of their own choices.
Michelle Goldberg is the author of The Means of Reproduction: Sex, Power and the Future of the World and Kingdom Coming: The Rise of Christian Nationalism. She is a senior correspondent for The American Prospect, and her work has appeared in The New Republic, The Nation, the Los Angeles Times, Glamour, and many other publications.