Wednesday, March 6, 2013

Is the Arkansas abortion legislation that far off-base?

The Arkansas legislature is poised to enact a restrictive abortion law, over the veto of its governor, that is drawing strong condemnation from the pro-choice activists and politicians.

The law is 100% guaranteed to be held unconstitutional under Roe and Casey, but it is worth examining anyway. The law would generally permit abortions up to the 12th week of pregnancy. After 12 weeks, abortions would be generally banned, with a number of exceptions: threats to the life of the mother, pregnancies that are the result of rape or incest, and "highly lethal fetal disorders" (New York Times). A separate legislative proposal would generally ban abortions after 20 weeks, with life, rape, and incest exceptions, but not a fetal disorder exception.

Observations:

First, the two proposed laws are attempting to peg their 'cut points'-- 12 weeks and 20 weeks-- on the ability of technicians to detect a fetus' heartbeat by abdominal ultrasound (at 12 weeks), and the assertion that fetuses are developed enough to feel pain (at 20 weeks).

Pro-life groups have been trying to legislate, litigate, and persuade with the science of fetal pain and the presence of fetal heartbeats since before Roe v. Wade. There is a hearts-and-minds component here-- people will be turned away from abortion when a heartbeat can be heard on ultrasound and especially if they believe that the fetus would experience the process of being killed. There is also a kind of law-grounded-in-science thinking here: If we can provide scientific indicia of the fetus' 'humanity,' then judges will eventually see the unborn as fully human and entitled to life like others.

The problem with this strategy is that it does not work and has never worked, at least in terms of changing the legal regime within which abortion rights cases are adjudicated. The science of pain is tenuous. Note also that the point at which abortions could be generally banned under Arkansas' law-- 12 weeks-- is not the point at which a fetus actually starts to have a heartbeat. That is around six weeks. The 12 week line is based on when an abdominal ultrasound machine can pick up the heartbeat that has already existed for six weeks. The legislators driving the bill-- who would surely like to see almost all abortions banned-- avoided going for a six-week cutoff point in part because detecting a heartbeat that early in the pregnancy requires use of a vaginal ultrasound. Requiring women to have a vaginal ultrasound before having an abortion: remember how well that went over? So the whole scientific cast of the legislation is shoddy.

Second, in the context of Roe and Casey-- the abortion law we've been living with for several decades-- this law is extremely restrictive. Ironically, it is not as restrictive as pro-life activists would like. They would prefer to ban all abortions during the entire pregnancy with a narrow life exception. Why doesn't this law attempt to go for it all? Arkansas legislators are trying to chip away at Roe/Casey with their appeals to 'science,' etc., as mentioned.

Perhaps unintentionally, however, Arkansas has stumbled upon what a majority of Americans would actually want. If you read public opinion polls of Americans on abortion, this law actually fits the consensus pretty well! This may be the reason why the law, despite its hopeless unconstitutionality, generated such strong support. In politically polarized America, getting Democrats and Republicans to come together to create a veto-proof majority is a rare thing.

Third, while radical in a Roe/Casey sense, comparing Arkansas' proposed laws with those of 'pro-choice' European countries would reveal that the law's structure is not all that unusual.

For many reasons, the debate over abortion in America has been driven by polarized extremes. Laws such as the one being proposed in Arkansas-- if they had a chance of being held constitutional-- might actually move the abortion debate to a place where a legal and social consensus could be forged.

Links:

Article in The New York Times (March 5, 2013): Ark. Senate Overrides Veto of 12-Week Abortion Ban