Winning on the Edges [Jay]

Two new articles by Dahlia Lithwick at The Slate and Sarah Kliff at Politico draw attention to the recent trend of state legislators passing bills that challenge aspects of Roe v. Wade without making a direct attempt to overturn that dreadful piece of judicial reasoning. What is interesting to me is how both articles recognize that losing the Gonzales v. Carhart decision has changed the playing field for the pro-abortion side.

Because some still insist that Carhart was somehow a pro-choice victory and that recognizing it as an advancement for the pro-life cause demonstrates that you are not really pro-life, it is helpful to look at what is happening. The pro-aborts LOST on Carhart and they know that. They are afraid of LOSING again and so they will not challenge these incremental moves all over the country for fear that it will lead to another judicial LOSS.

From Kliff's article:

_Oklahoma is likely to be the next state to ban abortions after 20 weeks, on the basis that the fetus can then feel pain, with Gov. Mary Fallin expected to sign a law imminently. Idaho and Kansas passed similar “fetal pain” laws last week. Nebraska’s law has been on the books for a year, and legislators in 14 states have introduced similar measures, according to the Guttmacher Institute, with bills in Alabama, Iowa and Indiana moving forward at a rapid clip...

It could lay the groundwork for the next challenge to Roe v. Wade — a battle they believe they can win.-

And although Nancy Northrup, President of The Center for Reproductive Rights, claims that they are not challenging because they see the new restrictions as lower down on their list of prioritites, this seems like empty bravado. They acknowledge that these new laws will restrict the access for some women to abortion and that the laws challenge particular aspects of Roe/Doe, and yet the Nebraska law has been on the books for a year and has gone unchallenged. Does The Center for Reproductive Rights not care that a small percentage of women are being denied their Constitituonal right to choose abortion? Are they really unconcerned that some women have lost their reproductive rights? How is that possible? It is the name of their organization for goodness sakes!

Perhaps they have other motivations for ducking this fight. Again, from Kliff's article:

-Abortion rights supporters also have reason to approach the Supreme Court with caution: The last abortion challenge to rise to the Supreme Court ultimately restricted abortion access. Carhart v. Gonzalez (2007) upheld the national Partial-Birth Abortion Ban Act, passed by Congress in 2003 which bars providers from using a late-term procedure called “dilation and extraction..."

Reproductive health groups widely disagree with this reading of Gonzalez, contending that the court will uphold the viability standard it has used for decades. Nevertheless, NWLC’s Borchelt concedes that it did “open the floodgates” for anti-abortion groups to test out new, more restrictive bans, with hopes of bringing one to the high court...

Equally alarming to abortion rights supporters: Gonzalez was written by crucial swing-voter Kennedy, who had previously supported abortion rights in other cases, like 1992’s Planned Parenthood v. Casey.

“We would hope Justice Kennedy would stay with his position in Planned Parenthood,” Northrup said. “That being said, we lost the case in [Gonzalez] and would join Justice [Ruth Bader] Ginsburg in saying we’re ‘alarmed’ at the view of women that was reflected in that decision.”-

Maybe Kliff is just exagerrating. Lithwick is an unapologetic defender of abortion as a constitutional right, so surely she will balance this take with some pro-choice optimism. From Lithwick:

-Opponents and supporters of abortion appear to have taken the position that Roe v. Wade is no longer the law of the land.-

Maybe not. Later in the article:

-The risk of challenging these clearly unconstitutional laws and then losing at the Supreme Court is evidently so high, according to Terry O'Neill, president of the National Organization for Women, that it's not worth taking. As she explained last week to Rachel Maddow, the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place. And, as she conceded in that interview, wherever unconstitutional state abortion bans go unchallenged, they become law.-

Lithwick quotes an article in San Diego City Beat by D.A. Kodolenko. In the article he says:

-This is a dangerous Catch-22. In order to keep in place the existing federal law protecting a woman’s right to choose, pro-choice organizations are limited in what they can do about the spate of new anti-abortion laws being passed in states dominated by anti-choice conservatives.



What we’re witnessing is a stealth campaign to make an abortion illegal or as difficult to obtain as possible in as many states as possible, and it’s working.-

I am grateful to every pro-lifer that reminds us all that the ultimate and only true goal is the end of abortion. It is also helpful to remind ourselves that small steps legitimately get us to our destination, though not as fast as any of us would like. No pro-lifer will ever be truly happy until we live in a culture that recognizes the value of all human life and sees it as virtuous to protect those least capable of protecting themselves even when it requires that we sacrifice in order to do so. Even so, we ought to be able to enjoy moments of progress.

If the other side can be believed, we are making progress. We can press on knowing that we are making a difference.