Dismembered Protections (these laws don't even pretend to protect women's health)
Dismembered Protections
These new abortion bans may be the most dangerous yet.
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As Ressler notes: “Back in 2006, before the Supreme Court issued its final ruling on the ‘partial birth abortion’ ban, NPR reported that ‘even some supporters of the ban say that if it is upheld, they could then move on to try to outlaw the far more common D&E procedure, whose description is nearly as unpleasant as that of the D&X.’” Kathy Ostrowski, legislative director of Kansans for Life, told the National Catholic Register that the Supreme Court itself is “waving us in” on a law such as this. The strategy involves “trying to teach enough so that we gravitate toward and enact bills that have a real chance of permeating those hurdles that the Supreme Court has set up. ... The ban of dismemberment abortion, carefully defined, very much parallels what happened with ... partial-birth abortion.” There is a problem with this logic, of course. In his opinion in Gonzales v. Carhart, Kennedy carefully distinguished between the illegal D&X and the still permissible D&E, indeed he justified banning the former in part because of the availability of the latter: “Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E. One District Court found D&E to have extremely low rates of medical complications. ... Another indicated D&E was ‘generally the safest method of abortion during the second trimester.’ ”
Still, given that the long game for the anti-abortion movement is always going to be finding that fifth vote to overturn Roe once and for all, and that some of the abortion regulations teed up for review at the Supreme Court involve free speech claims (for instance North Carolina’s controversial mandatory ultrasound law) or making abortion all but unobtainable for significant numbers of low-income women across Texas (a provision now pending in the federal courts), it’s clear that bans on “dismemberment abortions” may be the better vehicle. As Ostrowski told the National Catholic Register about the Supreme Court justices: “We want to get to the day where they have [a] case in front of them and say, ‘We’re overturning the essential holdings of Roe.’ ”
One aspect of the new Kansas and Oklahoma bans is different from the onslaught of recent legislation and it’s worth noting here: Unlike many of the so-called TRAP laws (for targeted regulations of abortion providers) or the mandatory ultrasound or waiting period laws, the new “dismemberment abortion” bans don’t even pretend to have a basis in protecting the welfare of the pregnant woman. That was the other legacy of Kennedy’s Carhart holding: Any abortion regulation was justifiable if it helped confused women make better decisions. As the New York Times Linda Greenhouse put it at the time the case was decided, “never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health—mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood.” Greenhouse quoted Yale Law School’s Jack Balkin as pithily summarizing Kennedy’s conclusion about women post-Carhart as “the ‘new paternalism’: ‘Either a woman is crazy when she undergoes an abortion, or she will become crazy later on.’ ”
That opened the door for years of new paternalism, laws that pretended to worry about the width of clinic corridors and scarier warnings, as they chipped away at the actual right to choose. The new Kansas ban simply sets aside this paternalism, which supposedly attempts to help women make better decisions by inserting Congress, her state Legislature, admitting privileges, and an ultrasound probe into her body. The new bans go back to the pro-life movement’s original emphasis on protecting the fetus. The Kansas and Oklahoma regulations ignore the mother and go straight for the gross-out. It’s a watershed of sorts. At least the pretext has fallen away again that the woman is being helped when she is denied medical care. Perhaps the irony of arguing that it is all for her own good as you simultaneously strip away her right to a safe second-trimester abortion proved impossible to sustain.
http://www.slate.com/articles/news_and_politics/jurisprudence/2015/04/kansas_and_oklahoma_abortion_bans_second_trimester_abortions_will_be_more.html
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