Republicans race to criminalize abortion: They're confident Roe is going down

GOP zealots abandon any pretense of subtlety: They want to force women to have babies, under penalty of law

By Amanda Marcotte

Senior Writer

Published May 15, 2019 12:45PM (EDT)

Brett Kavanaugh (AP/Saul Loeb)
Brett Kavanaugh (AP/Saul Loeb)

If you're wondering whether Republican legislators are holding a misogyny contest, with Brett "I Like Beer" Kavanaugh awarding a trophy for Finest Achievement in Woman-Hating to the winner, you're not far off. While there probably won't be a literal gold-plated statuette of a boot pressed firmly on a woman's neck being awarded, Republican-controlled state legislatures are competing for another prize coveted by the set that tends to call women "helpmeets": The opportunity to be the state that got Roe v. Wade overturned.

Late Tuesday, the Alabama state legislature passed an abortion  ban, in direct violation of Roe v. Wade, that reclassifies abortion as a Class A felony, punishable by up to 99 years in prison. Gov. Kay Ivey, a staunchly anti-abortion Republican, is expected to sign this bill soon. That follows on the heels of similar (if slightly less stringent) bans passed Georgia, Ohio, Kentucky and Mississippi this year alone.

Alabama's bill in particular has caused a lot of outcry because the Republicans took out the typical "rape and incest" exemptions that are usually slid into these bills to make it seem like their authors have some sense of decency and mercy. Such exemptions are always nonsensical, of course: Rape victims can't get abortions when all the doctors qualified to perform them have been run out of town. But it's telling that in the age when the president of the United States has been accused of sexual assault by more than a dozen women and a Supreme Court justice had to fend off two women claiming similar assaults at his hands, Republicans are losing interest even in feigning sympathy for victims.

Kavanaugh, of course, is the proximate reason for this stampede of blunt force abortion bans. None of these laws will go into effect immediately — women in the affected states can still get abortions — and they are largely expected to be struck down by lower courts. But many Republicans believe that with Kavanaugh on the Supreme Court there are now five votes to overturn Roe — and possibly even earlier decisions like Griswold v. Connecticut, which legalized contraception.

In the past, anti-choice activists tried to get cute with their attacks on abortion access. They knew the Supreme Court was reluctant to overturn precedents like Roe outright, so they would pass elaborate restrictions meant to make abortion much more difficult to get without outright banning it. But the Kavanaugh court confirmed just this week, in a dry decision overturning a 40-year-old tax law precedent, that the conservative justices no longer believe that precedent matters.

It's open season on Roe right now. If and when that decision is overturned, there's really no limit on how many previous decisions securing human rights conservatives will feel free to attack. Without respect for precedent, the Supreme Court can reverse gay rights, contraception rights, the rights of criminal defendants, desegregation decisions, workers' rights, and so on. This may be just the beginning of an all-out assault on the social progress of the past century.

"These politicians are doing this in direct defiance of the American people, whose support for access to safe legal abortion is an all-time high and growing," Dr. Leana Wen, the head of Planned Parenthood, said in a call on Wednesday, referencing polling data that repeatedly shows that voters, including Republicans, disapprove of all-out abortion bans by wide margins.

It's true that most Americans are reluctant to abandon abortion access, particularly for themselves and the women in their lives. But the data also shows a lot of moral tut-tutting about it, suggesting that what a lot of conservatives want is a law that will preserve the right for themselves while removing it from women they perceive as slutty, irresponsible or low-class.

Even as Republicans pass abortion bans in state after state, they're going out of their way to bamboozle voters into thinking that these bans only apply to other, presumably less responsible women. As with laws restricting the right to vote, Republicans tell the public that so long as they are "responsible" citizens (and most people self-identify as "responsible"), they have nothing to worry about.

That's likely why the abortion bans in Georgia, Ohio, Kentucky and Mississippi kick in after embryonic cardiac activity begins, which is at the five- or six-week mark in the pregnancy calendar. This allows them to market the bills as "six-week bans," implying that a woman has a solid month and a half in order to get her abortion — and that women who can't get it done in that time simply don't deserve it.  

In reality, however, these laws function as total abortion bans. As Dr. Anne Davis of Physicians for Reproductive Health explained to Salon in 2017, most doctors don't really do abortions before the sixth week of pregnancy, which is merely the fourth week of an embryo's existence. Even if a woman knows she's pregnant by then, and many do not, it is not "standard practice in the United States" to do abortions before that point, for safety reasons. 

Alabama's law doesn't even offer this pretend window for women. It bans abortion entirely, except for a "life of the mother" exception that has been proven useless in other countries. That didn't stop Republicans in the legislature from suggesting that all women needed to get abortions was to demonstrate sufficient diligence.

During his remarks defending the Alabama bill, Republican State Sen. Clyde Chambliss claimed that all women needed to do if they want an abortion in the state is get one before they are "known to be pregnant."

“I’m not trained medically so I don’t know the proper medical terminology and timelines," he said. "But from what I’ve read, what I’ve been told, there’s some period of time before you can know a woman is pregnant."

When his fellow senators, confused, followed up with questions, Chambliss reaffirmed this repeatedly: All a woman needed to do if she wanted an abortion was to have one before she had a medically detectable pregnancy.

This is beyond ridiculous. It is completely impossible. But it demonstrates the rhetorical game Republicans are playing, where they ban abortion entirely while trying to trick voters into believing that only lazy and irresponsible women will be affected. You, dear Republican lady voter, don't need to worry your pretty little head. Unlike those other women — you know the ones we mean! — you'll be smart enough to get an abortion before you even know you're pregnant, right?

In truth, if the Supreme Court upholds these laws, abortion will simply be banned in those states — for everyone. As Scott Lemieux of Lawyers, Guns, and Money points out, overturning Roe "will not revert many states to the pre-Roe status quo. It will be much worse."

For instance, the Georgia law — and quite possibly the Alabama law — will open up the door to prosecuting women for miscarriage. There's no clear scientific way to tell the difference between a miscarriage and an abortion induced by misoprostol pills — which are not legal but easy to obtain — so we could see a massive surge of women who are accused of abortion when they show up at the hospital after miscarriages because they're low-income or single, or are women of color.

Perhaps more important, Republicans are also working not only to stop women from legally terminating pregnancies, but also from being able to prevent pregnancy in the first place. GOP lawmakers and Trump administration officials are cutting off funding and insurance access for birth control every chance they get. For instance, federal officials have reworked the Title X program, which funds contraception for low-income women, to exclude family planning clinics and funnel the money to religious organizations that tell women they should simply abstain from sex instead.

(This pro-abstinence message clearly doesn't apply to men, as most of these folks voted for the thrice-married chronic adulterer, Playboy mansion aficionado and occasional porn cameo actor who now occupies the White House.)

In other words, there's no real explanation for this, other than flat-out misogyny. Republicans want to ban women from terminating pregnancy, and they also want to cut off women's ability to prevent pregnancy. Sex is both expected of women and severely punished. The point of this was never about the supposed sanctity of "life." It's about putting women at the mercy of men by weaponizing sex and pregnancy.

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

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