Carhart makes overturning Roe irrelevant. What is to be done?

The obvious point (the one that all pro-choice people get) is that there is no such thing as “partial-birth abortion.” Others have eloquently made the point that the propagandistic misnomer is medically meaningless.
But it has always been a dangerous mistake to think that the anti-choicers, or the authors of the 2003 “Partial-Birth Abortion” Ban Act itself ("the Act"), intended to rename, demonize, and ban a particular procedure as a mere wedge strategy.
The mistake seems to be continuing, intractable: Wednesday and Thursday, pro-choice bloggers were (good) angry and (bad) fearful that Carhart will prove the narrow end of the wedge; that, with one more conservative justice, a future Supreme Court will overturn Roe.
This fear utterly misses what Carhart has actually accomplished.
As of Wednesday, April 18, 2007, Roe is irrelevant. Thursday marked Day One of the Post-Roe Era.
Here’s why:
1) The only issue is the Act’s intentionally-vague language.
2) Every single word about “trimesters” and “pre-“ and “post-viability” is a red herring. That language belongs to the Roe era, and the Roe era is over. We lost.
3) The vagueness of the Act’s language was always smart, intentional, and strategic, and was never an accidental by-product of dumb anti-choicers who can’t write and don’t understand medicine.

4) The antis introduced the “partial-birth abortion” canard in 1995. They did this not because they suddenly smelled the coffee about a particular procedure and realized they could demonize and ban it if they played their cards right. Their process and intent was precisely the opposite: They were casting about for a way to see statutes enacted that carried Trojan horse language, which could be construed broadly, beyond the procedure nominally being banned. Intact dilation and extraction (IDX) became their chosen vehicle.
5) In accomplishing this, the antis achieved a revolution in abortion legislation and litigation. That revolution was consummated Wednesday in the Supreme Court. The only aspect of the majority opinion that matters is the vindication of the intentionally-vague language of the Act. All the rest is either window-dressing (Kennedy), ideological axe-grinding (Scalia and Thomas), or –- astonishingly -– not perceiving the true danger of the majority holding (Ginsburg).
6) At their confirmation hearings, Alito and Roberts already got it, and already knew how they would vote on Carhart. That was why they were able to speak blandly about respect for precedent and about Roe as settled law.
7) The accomplishment of Carhart is simply that Roe need never be confronted directly and overturned. The many Carhart successor statutes soon to come in the states will contain language that is intentionally ever-so-slightly broader than that in the Act; as these laws are upheld, and as actual prosecutions of doctors are affirmed, more abortion procedures will fall outside the law.
8) The consequence is that fewer doctors will be willing to provide any abortion service at all, further reducing abortion availability, and further making irrelevant any need by the antis to seek the overturn of Roe.

Anti-choice ecstasy
This must be like coming into the Promised Land after 40 years wandering in the desert. A few pro-choice bloggers have been linking to some of the creepier things the antis are saying online. T.P.S.M. doesn’t link to right wing sites, but let it suffice to say that the most sickening, ugly-American outburst was from a right-wing woman who said she felt like someone gave her a million bucks to go shopping.
Back in "Operation Rescue" days, all my friends and I would go cram into a hole-in-the-wall office with a couple hundred others at 4 in the morning, waiting to hear which clinic the antis were going to hit. Then it was pell-mell to the cars, racing to get there first and keep the doors open. Sometimes it worked (burned into my brain forever: the deafening chant, “THIS CLINIC IS OPEN!”). Sometimes it didn’t (antis chained by their necks to the door handles, that one Ani DiFranco song that still gets me.) Sometimes the police closed the clinic all on their own (“Public safety reasons, ma’am” –- calling the doctor who ran the place anything but “Doctor”).
The confrontation in the streets of right and left, both using direct-action tactics, put the authority of the state in question. Ultimately, the state managed to find its feet and defeat both the reactionary forces and the feminist-led clinic defense movement. The “FACE Act” put the antis plainly on the wrong side of the law, but it also co-opted pro-choicers.
One afternoon in the summer of 1995, one of our roommates, a young lesbian medical student, came home from her internship at a clinic. She had a weird look on her face.
“Well, I got my FBI orientation today,” she said. Putting on the ironic, toothy grin: “Have you ever been fitted for a bullet-proof vest? I have!” Given a choice between being defended by an ungovernable, street-based movement led by radical feminists and being defended by the state, the clinic managers made a predictable (and comprehensible) choice.
What followed, for the antis, was a series of civil RICO suits and big damages awards. Less than two years later, the advent of Eric Rudolph symbolized the collapse of the anti-choice movement as a mass movement in the streets. In its place was the nihilistic “Lone Wolf” strategy, a paean to alienation and despair.
In its place, too, was a deep division in the politicized churches over participation in electoral politics. (Among those who bring the analysis of this split on the right up to date is Chris Hedges, in his 2006 book American Fascists.)

The state is different now
As I have been arguing on T.P.S.M. for a while, those in power now don’t share the ideological need to make the radical right illegal and to co-opt the governable sectors of the left. Like all of its predecessors, the Bush regime serves property interests. But unlike Clinton, Bush I, and even Reagan and Nixon, this regime pursues an authoritarian ideology that is new and unique in American history. In the post-Roe era, the doctors that the FACE Act sought to co-opt are the doctors who will face prosecution. Bet on that, whoever you like for the White House next year.

So what’s next?
“Vote! vote! vote in 2008!” many pro-choice bloggers are crying. I’ll leave ballot-advocacy to others.
A different, immediate, and concrete necessity is to start thinking about political and material support for the first doctor who gets indicted. If my extremist view of Carhart is correct, we now live in a country in which, as a matter of Federal law, any actual abortion that takes place, anywhere, with circumstances that could possibly be construed to fit the vague language of the Act, is an indictable felony. There’s every reason to speculate that a zealous, anti-choice Federal prosecutor is already looking for the test case.
Fundraisers for the first indicted doctor’s legal defense could help raise awareness of the new, historically unique, and truly dire era that we are now in Day Two of. Don’t wait for the news. Start thinking about this now.
Then there’s the "Jane" question. Here in Chicago, from 1969 through the Court’s 1973 holding in Roe, a clandestine network of feminists arranged underground abortions for an estimated 11 thousand women. Their experiences have been explored in a book and on stage. It may seem counter-intuitive, but I think that an open, public discussion of autonomous activity and clandestinity can well-serve a discourse that has been polluted with meaningless terms like “partial-birth abortion.”

Current questions
*Will a new underground women’s health movement be born?
*Will prosecutions commence against doctors now?
*If so, how will their political and legal defense be organized?

Tags: politics, law, policy, abortion, Carhart, Supreme Court, Scotus, Anthony Kennedy, Ruth Bader Ginsburg, Planned Parenthood, "Partial Birth Abortion", reproductive rights, reproductive freedom, women's liberation, feminism.

Comments

[trayf]

While I agree that this is an assault on abortion as a whole, I want to pause for reflection about the specific procedure they vaguely targetted.
The deal is, it can happen to anyone including people the religious right would consider to be the paragon of family values.
Basically, by the time a whole host of horrors show up on an ultrasound, you are at 20+ weeks. So, if you don't want to go to the santorum route and spend another 20 weeks carrying a child you know is doomed, only to bring its corpse home with you so your other children can spend time on deathwatch, then you end the life.
And yes, being a parent means making life and decisions for your child, even before they're born. So then you go and have labor induced but since you're only twenty weeks, it might not work.
And doctors want a backup of something else, namely intact dilation and extraction, or they won't see you at all. Since we were privileged we got this done under insurance (though we had to badger them into paying) in a hospital maternity ward (!) with nary a counterprotestor in sight. We even got to have a commemorative ceremony at our supportive place of worship, not something everyone can do.
So this can happen to you, privileged breeders! I know. so it's not just altruism any more to stick up for abortion access.

[Stein]

trayf, this is a thoughtful & moving response, and I'm truly sorry for your loss. You're right to point out the value of support from a spiritual community -- something not everyone can count on; and you also are frank about the role privilege played in access to care. And you draw the point home to anyone else who may feel that their privilege will protect them in this new, post-Roe era.
I do want to emphasize the seriousness of my contention that we really are in a post-Roe era now, and that the Carhart decision does much more than ban a specific procedure.
Thanks again for your comment, and be well.

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