Abortion, SCOTUS, Supreme Court

Has Everybody Noticed That States Are Now Openly Ignoring Roe v. Wade?

Today, SCOTUS is all about the gays, and soon enough, it’ll be back to helping white people overcome affirmative action, but soon — very soon I imagine — some court is going to have to step up and reaffirm a woman’s right to choose. Or strike it down and rouse the overwhelming majority of people who support choice out of their complacency.

But quietly, abortion is under attack. And so we’re going to have to have this fight again.

And when we do, wherever we fall, we’re going to have to update Roe v. Wade to take account of the miracle (or madness) of modern science.

North Dakota just signed in the most restrictive abortion law in the nation, more restrictive than Arkansas’s new law that has received more publicity. But some of the new restrictions seem, almost, enlightened….

On its face, the North Dakota law is ridiculous and flies in the face of Roe v. Wade jurisprudence. The North Dakota law would prohibit abortions after a fetal heartbeat is detected, which could happen as early as six weeks. That’s even more restrictive the Arkansas’s fetal heartbeat ban, which attaches at 12 weeks.

The difference? The Arkansas law only requires heartbeat detection using an abdominal ultrasound. North Dakota is looking at when a heartbeat can be detected using a transvaginal ultrasound. The law doesn’t specify that women must get a transvaginal ultrasound, but you can’t detect it before 12 weeks without one, so you do the math.

Essentially, we’re back to Republicans trying to force women to get something shoved in their bodies. Some women don’t even know they’re pregnant by six weeks, especially women who aren’t trying to get pregnant, and thus most likely to be desirous of an abortion.

For those playing along at home, Roe says that abortions must be allowed until the fetus is viable outside the mother’s body, which is usually over 20 weeks into a pregnancy. The North Dakota law is invasive and wrong and should be struck down just as soon as a court gets its hands on it.


There are also some aspects of the North Dakota law that even progressives probably have to consider. From the Associated Press:

The legislation to ban abortions based on genetic defects [like Down Syndrome] also would ban abortion based on gender selection. The Guttmacher Institute, which tracks abortion laws throughout the country, says Pennsylvania, Arizona and Oklahoma also have laws outlawing abortion based on gender selection.

Look, here’s what happens next: science gets better. The “viability” of a fetus when Roe v. Wade was argued is different now and will be different tomorrow. What we can know about a fetus, genetically, will grow. And we’ll know those things earlier and earlier. At some point, odious couples are going to go to labs and “roll a baby” the way video game players “roll a toon,” leaving a raft of aborted cells (which is fine)/fetuses (okay)/babies (really!?) in their wake.

And at some point, my very liberal “pro-choice” stand is going to turn into “what kind of monster aborts a baby just because it might be gay?”

At some point, science will fundamentally change the nature of the abortion debate. Not today in North Dakota, but soon and irrevocably. At some point, people who support a woman’s right to choose will be appalled by the choices of some women and some couples. (In fairness, some of us are already appalled notwithstanding supporting choice. It’s called a condom and a modicum of forethought.)

And the question will ultimately fall to the Supreme Court. We’re talking about the fundamental right to control one’s body, and it’s going to be a constitutional question again.

The time is nigh for a Roe v. Wade affirmation — a constitutional affirmation that a woman’s right to choose what happens to her own body is inviolate. States are trying to chip away at the right, but science is changing what the right itself involves.

I don’t think getting pregnant should remove legal free will from women, which means that pro-choice remains for me the only choice. But we’re going to have to wrestle with the “mad scientist” consequences of that freedom sooner than you think.

North Dakota Governor Approves 6-Week Abortion Ban [Associated Press]

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