North Dakota’s legislature has passed an anti-abortion law banning all abortions at six weeks, except for “when a medical emergency necessitates an abortion.” It is not clear how “medical emergency” is defined. At six weeks, of course, many if not most women don’t even yet know they are pregnant.
This comes one week after Arkansas passed, over Gov. Mike Beebe’s veto, a law criminalizing abortion after 12 weeks.
Any law that bans first-trimester abortions is plainly unconstitutional under Roe v. Wade. But as Sarah Kliff points out, this is a deliberate strategy for the most extreme segment of the anti-choice movement:
Taken together, the Arkansas and North Dakota brand seem to represent a shift in power within the antiabortion movement. Scholars who study social movements, like Ziad Munson at Lehigh University, tend to divide the group into two factions.
There are those who see Roe as the law of the land, and try to work within the confines of the Supreme Court decision. They would prefer that zero abortions occur, but recognize that the current legal landscape is unlikely to yield such a result. So they focus on passing restrictions that would be legal under that Supreme Court decision, such as parental notification laws or waiting periods.
The other faction tends to be more aggressive; they don’t accept the Roe v. Wade decision as law and don’t use it as a framework for passing legislation. They tend to be more ideological and less pragmatic, thinking about the best ways to restrict abortion regardless of whether they’ll be upheld by the Supreme Court.
These include bills to declare life as beginning at conception or, in the cases of Arkansas and North Dakota, abortion bans that clearly conflict with Roe’s protection of elective, first trimester pregnancies.
Ed Kilgore calls it “the anti-choice Olympics” and also reminds us that Anthony Kennedy’s swing vote in Gonzales v. Carhart (2007) paved the way for these direct challenges to Roe:
With Republican-controlled legislatures all over the South talking about emulating Arkansas’ law (which may already be behind the times if North Dakota trumps it), the rather transparent purpose of this trend (other than bragging rights) is to force a fresh Supreme Court review of Roe v. Wade and Planned Parenthood v. Casey, the decisions banning state prohibitions on pre-viability abortions. Given the door apparently opened by the Court (or more specifically, Justice Kennedy) in the 2007 Gonzales v. Carhart decision to state regulations of abortion rationalized as needed to protect the “mental health” of the poor ignorant women resorting to the procedure, Roe is indeed vulnerable.