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After Alabama, don't count on rationality or institutionalism to save abortion rights

After Alabama, don't count on rationality or institutionalism to save abortion rights
Alabama Governor Kay Ivey signing into law the Alabama Human Life Protection Act in Montgomery on May 15. (Alabama Governor's Office)

As anticipated on Oct. 6, 2018, the day alleged sexual assailant Brett Kavanaugh was confirmed to the Supreme Court, high-stakes gynecology is back in the news.

On Wednesday, Kay Ivey, the governor of Alabama, signed into law a bill that could jail for life anyone who performs an abortion. Reminder: Abortion is a 20-minute procedure for ending a pregnancy or, conversely, restarting a menstrual period. It’s one of the safest, least eventful procedures in all of medicine.

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The Alabama law comes timed with proposals and passed legislation in red states across the country restricting access to abortion, in some cases after as little as six weeks of pregnancy and even in cases of rape or incest. Since politicians are newly fascinated by our monthly cycles, we might as well note this too: Girls and women often have no idea they’re pregnant at six weeks.

The flood of new, sweeping restrictions is widely seen as what the legal scholar Dahlia Lithwick calls a Supreme Court “squeeze play,” an attempt to get the justices, five of whom are conservatives, to overturn Roe vs. Wade, the 1973 decision that ruled that Americans have a Constitutional right to privacy when making decisions about pregnancies.

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It’s unconscionable to criminalize safe, legal abortions in the name of child welfare. But that’s the United States in 2019.


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Ivey, a politician in a nation founded on the principle of separation of church and state, didn’t bring up privacy in Montgomery on Wednesday. Instead, as she signed the abortion ban into law, she invoked religion: “This legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God."

A lot of people probably didn’t blink at her words. Maybe they don’t know that more than 40% of the citizens of Alabama have told pollsters about their deeply held belief that abortion should be legal.

Anti-choice grandstanding is so commonplace that we’ve begun to grow deaf to the relentless sophistry. When President Trump stirs up his pep rallies with haphazard lies about Democrats’ supporting the slaughter of newborns, he’s just Trump being Trump.

What’s worse, twisted anti-abortion ideology — with its references to magical thinking (you can’t get pregnant from rape) and the minutiae of ultrasound microscopy (the millisecond an ootid is penetrated by a spermatid, it has legal rights) — is kept so relentlessly center stage that it’s easily mistaken for a mainstream Republican position.

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It’s not. Just 18% of Americans say they oppose abortion across the board, in the way that the reddest of red states legislatures have in mind. And only a fraction of that fraction has made Roe — a decision about privacy rights — its bête noire, supercharging any discussion of reproductive health with increasingly hysterical rhetoric about fetal heartbeats, bloodshed, cherubic babies, murderous mothers and genocide.

The extremists may invoke God’s precious gift of life, but their rhetoric is prurient, aggressive and nasty. And way over the line.

Right now, as a result of the Trump administration’s truculent approach to immigration and asylum, children are sleeping in heaps on the ground, or in cages along the southern border. They’re given nothing but plastic blankets and what one man told Buzzfeed News was “food for a dog.” Because the law won’t allow the government to seize migrant babies anymore, the administration’s hope now seems to be that if it mistreats families, they’ll self deport.

In this context, it’s unconscionable to criminalize safe, legal abortions in the name of child welfare. But that’s the United States in 2019. Catastrophic internment camps are represented as business as usual, and standard gynecological practice is called a moral crisis.

Lithwick argues that the frank extremism of Alabama’s new law may force the Supreme Court to confront and reject its own anti-abortion leanings. With either an up and down high court vote, or a lower court overrule that’s allowed to stand, the anti-abortion forces could lose big rather than win with this showy and cruel law.

This makes some sense. At the very least, the Alabama law makes it clear that singling out abortions for undue regulation is never a matter of concern for a woman’s life or health.

One way or another, though, jurists like Kavanaugh, who sounds anti-choice dog whistles under cover of narrow, gentlemanly jurisprudence, will soon have to wrestle with the unscientific and illiberal assumptions that under-gird their panic about women’s reproductive freedoms.

If a Roe challenge makes it to the Supreme Court, less partisan figures, notably Chief Justice John Roberts, who has been outspoken in defense of the judiciary as apolitical, will be faced with ceding authority to extremists blatantly using religious language and pseudoscience to undermine the Constitution.

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Betting on rationality or hoping that institutionalism will prevail in Trump times has rarely panned out. As we head into the latest gut-wrenching battle over reproductive rights, disinformation will be pervasive. The worst of it will come from the president, who, in addition to spinning psycho myths about murder in maternity wards, entertains — we were told on Thursday — graphic fantasies of impaling migrant families on a spiked border fence.

The biggest lie of all? That Trump, like so many others who support his border camps and impaler wall, gets to call himself “pro-life.”

Twitter: @page88

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