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Friday, Mar 8, 2013 9:42 PM UTC

The real threat to abortion rights

Arkansas' ban gets the attention, but quietly passed laws and a careful court strategy may pose even more danger

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Topics: Abortion, law, Reproductive Rights, Arizona, Arkansas, Idaho,

The real threat to abortion rights (Credit: AP/Steve Helber)

This week, all eyes were on Arkansas, which just passed the most restrictive abortion law in the country, banning the procedure at 12 weeks. This is a lesson in what happens when Republicans take over state legislatures — Arkansas’ had been Democratic since Reconstruction, but flipped thanks in part to a cash infusion from the Koch brothers — but will have little real-world impact. It’s legislation as public relations, with the aim to further stigmatize abortion, and the law is so open-and-shut unconstitutional, it will doubtless get laughed out of court before it is ever enforced. What will likely be more significant to the future of abortion rights in this country is a little-noticed court decision in Idaho this week.

When Jennie Linn McCormack couldn’t afford an abortion, she asked her sister to order her abortion-inducing drugs over the Internet, but after inducing miscarriage, learned she was further along than she’d thought — between 19 and 23 weeks, according to an autopsy. She panicked and hid the fetus, which ended up on her back porch on the shelf of the barbecue, and eventually drew the police’s attention. McCormack was even more unlucky to live in Idaho, which like 10 other states, had passed a ban on abortion after 20 weeks.

Such bans, like any ban before viability, violate the precedent set by Roe and reaffirmed again and again by the Supreme Court. But states have been passing them in a deliberate strategy to force pro-choice legal advocates into lawsuits that are not only unattractive from a public relations standpoint (because they focus on rarer later procedures) but also could lead the Supreme Court to consider its current viability standard. The hope is that Anthony Kennedy, who was last seen concern-trolling women who have abortions in contradiction of evidence, will be a sympathetic, tie-breaking audience to the flimsy argument that supposed fetal pain is a reason to ban abortions.

At first, these laws went unchallenged, for strategic and logistical reasons. McCormack was no one’s idea of an ideal plaintiff; her attorney told TNR’s Ada Calhoun that he had gotten pushback from mainstream pro-choice advocates, including one who said, “We’d just really rather you’d not.” (Challenges have since moved forward in Arizona and Georgia.) But so far, McCormack and her lawyer have prevailed in every challenge, including this week. A District Court judge said that not only could she not be prosecuted, but the entire law is unconstitutional, along with other major restrictions like a ban on self-abortion and requiring that abortions take place in doctors’ offices, which is intended to foil rural women taking abortion pills with a doctor over webcam.

A Clinton-appointed judge, B. Lynn Winmill, wrote in his decision this week, “The state’s clear disregard of this controlling Supreme Court precedent and its apparent determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court evinces an intent to place an insurmountable obstacle in the path of women seeking non-therapeutic abortions.” (Apparently, the conservative bastions of fiscal responsibility love spending money on inevitable litigation.) The next stop is the 9th Circuit and, the antiabortion movement hopes, the Supreme Court, though accepting such a case would basically be picking a massive fight.

But opponents of abortion rights have been playing a long game. They know they will have to lose many times before they win. The director of state legislation for the National Right to Life Committee said in a statement after the Idaho case, “We have always recognized that it will take a decision by the Supreme Court to allow expanded protection of unborn children capable of feeling pain, and there are strong indications that five of the sitting justices would look with sympathy on a law providing such protection.”

In the meantime, two things are happening to make this game easier for them to play: Republicans control 24 statehouses entirely, and that’s not even counting the veto overrides they can enact, as in Arkansas. That means that these laws are just going to keep on coming and keep getting more innovative — and the more boring ones, like regulations to shut down clinics, are likely to be more effective in restricting access. The other factor is the difficulty Obama has had in filling federal court vacancies, dramatized this week when the Senate filibustered the nomination of Caitlin Halligan to the D.C. Circuit, a move right-to-life groups cheered. These positions aren’t just a pipeline to Supreme Court positions; the judges will be in a position for years to come to decide the status of abortion rights in the states.

Both of these dynamics are less likely to captivate national attention than an attention-getting ban. But they’re also going to slowly but surely change the course of the lives of the people who need abortions. In some cases, they already are.

Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com. More Irin Carmon.

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