When Is an Abortion Not an Abortion?

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South Dakota Gov. Mike Rounds in Washington

South Dakota Governor Mike Rounds had to decide whether to side with the Purists or the Pragmatists in the Abortion Wars. His decision to sign the state’s dramatic new abortion bill means the Purists have prevailed, and the moral, political and legal argument surrounding abortion rights is about to turn a corner.

In a country where two thirds of the public does not want to see Roe vs. Wade overturned, but nearly as many favor stricter limits on abortion, pragmatic abortion opponents have pushed for parental notification laws, waiting periods, restrictions on late-term abortions: The strategy was to chip away at Roe to try to shrink it, change its shape, and over time promote a “culture of life” that would view abortion less as a right than a tragedy, perhaps eventually a crime. That gradual approach requires a certain level of hypocrisy—or at least a willing suspension of moral belief—because if you truly equate abortion with murder, it’s hard to settle for slowing it down rather than stopping it altogether, right away: the Purist approach.

Which is what South Dakota now proposes to do. Lawmakers threw away the chisel, grabbed a sledgehammer and went at Roe with a fury, all but daring the Supreme Court to step in. The bill they passed last month, HB 1215, bans all abortion, including in cases of rape and incest, including cases that threaten the health of the mother; the only exception is if the mother’s survival itself is at risk, and even in those instances the doctor must “make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child.” Doctors caught performing abortions would be charged with a Class 5 felony, punishable by up to five years in prison.

There was all kinds of outcry about a law that goes so far. “Most polls show that between 70 and 80% of the public support access to safe and legal abortion in at least the case of rape and incest,” says Kate Looby, the state director of Planned Parenthood. Indeed, some abortion foes worried that the bill could do more harm than good, galvanizing abortion rights groups, alienating voters whose views are more mixed, and even prompting the Supreme Court to throw out the law, and fortify Roe in the process.

But leave aside for a moment the political stakes. What strikes me reading the bill is that this is a case where the Purists have carried the day. If a fetus is an innocent life deserving the full protection of the law, then the circumstances of conception, no matter how tragic, are irrelevant. Punish the rapist, they say, not the baby. Even the bill’s opponents agree that it has a kind of logical integrity. If this effort succeeds it will redraw the battle lines in the 30 Years Abortion War.

Which of course is what makes it so politically risky, given an ambivalent public that prefers to restrict abortion than ban it outright. It is almost a mirror image of the challenge faced by abortion-rights activists when they are called upon to defend late-term abortions. Except in cases where the mother’s safety is at risk, late-term abortions have always been controversial because at some point they sidle up too close to infanticide for comfort. Now the South Dakota lawmakers find themselves having to explain why they rejected what have become customary “special circumstances” like exceptions in the case of rape or incest, that are favored even by the “pro-life President” in the White House.

To some abortion foes, this represents moral courage; to others, a righteous, and reckless, act of grandstanding. Some women’s rights activists saw an appalling indifference to the physical and emotional trauma suffered by victims of sexual crimes. Others saw an opportunity. And so here is where things get really interesting.

The bill reflected the findings of a state Task Force To Study Abortion that reported its findings to Governor Rounds and the legislature last December. The task force report compares the experience of women who go to Planned Parenthood, the state’s primary abortion provider, with those who go to crisis pregnancy centers. It charges that women are “misled” by abortion providers, who dehumanize the fetus (calling it “tissue” or “the contents of the uterus”) and do not reveal that “the procedure will terminate the life of a human being.” An epidemic of remorse and depression results. At the crisis pregnancy centers, nearly a third of women arrive considering having an abortion, but barely 2% go forward after they are counseled about the nature of fetal development. “We do not know the cost to our society,” the report states, from “the pain and anger resulting from abortion, but we fear it is far worse than what we are able to comprehend.”

That was the spirit driving the lawmakers, who have now found themselves in the national spotlight for going where, so far, few other states have been willing to go. I talked to Representative Roger Hunt, the main sponsor of HB 1215, about why the bill was written as it was. Why, for instance, did they reject the standard exception to protect the health of the mother? Because, he says, that phrase is far too stretchy. “If we were talking of pure, serious health concerns,” that would be one thing, Hunt said. But “health” can mean economic health, mental health. “It becomes an open barn door for anyone who wants an abortion. We might as well not have the legislation at all”.

But what about cases of rape and incest, where there is overwhelming public support for allowing abortion as an option? Here the lawmakers admit that they carved out a little gray area. Hunt notes that the bill forbids doctors from prescribing any drug or doing any procedure on a pregnant woman “with the specific intent” of ending a pregnancy. It also protects the right of women to use “ a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing…”

In other words, a woman presenting herself to an emergency room immediately after a rape, Hunt says, would be able to use emergency contraception; the trick is that she has to do within the first few days after the assault, before any test can determine whether she was pregnant in the first place. The lawmakers concluded that it’s OK for a rape victim to have an abortion, so long as she doesn’t know for certain that she’s doing it.

So why not have an exemption for all rape victims, including the ones who are too shattered to report an assault right away? Hunt calls it “a fine line that we’re walking, but some of this is just to show that we’re being fair and reasonable. In cases where we cannot determine if there’s an unborn child or not, we’re trying to be sympathetic to a woman who alleges she’s been raped.” But the sympathy expires after about a week. “Very honestly,” Hunt adds, “We don’t want to have a lot of abortion clinics questioning a woman and having the woman say ‘well, I was raped four months ago, I need an abortion.’ We’re trying to be sensitive to women who are legitimate rape victims—and not give abortion clinics a chance to commit fraud on system.”

“It’s so hypocritical it just blows my mind,” Planned Parenthood’s Looby counters. “They understand that this is a problem for the public, so they had to come up with a way to get around that and this is their attempt to do so.” The majority of rape victims, she notes, are victims of date rape, and the majority of incest victims are quite young. “They don’t present themselves at a hospital or doctor’s office to ask for contraceptive measures to prevent pregnancy,” she says. “So I think it’s very disingenuous of him to suggest this is an exception for rape and incest. It’s not.”

And even if rape victims do get themselves to a hospital for treatment, she adds, it may not do any good. “We’ve introduced a bill requiring emergency room doctors to tell assault victims about emergency contraception—they’re not required to provide it, just to tell patients about it—and that bill has repeatedly failed in the South Dakota Legislature.” South Dakota was among the earliest states to allow pharmacists to refuse to dispense Plan B, the “morning-after pill,” if doing so violated their conscience.

The overall goal in South Dakota, Hunt argues, is to rebalance the scales. “You have two human beings here. In the United States, where we value life, we’re big fans of the underdog, perhaps the life of an unborn child is more critical and more important than a woman making a choice. It’s a balancing act, I admit. But when you put the proper weights on the scale, it will favor protecting the life of unborn children.”

But why only punish the doctors? I asked, curious about how far the purity goes. If this is a crime, isn’t a woman who seeks an abortion at least a willing accomplice? Because, Hunt says, once more citing the findings of the task force, “she may be dealing with a lot of pressure, from family, boyfriend, husband. We have a situation in which the woman may be getting so much pressure she’s not thinking clearly.” The doctor, on the other hand, “should be operating in a calm and collected manner, have identified all the risks to the woman; he’s counseling the woman. We think its appropriate to place a greater burden upon the doctor.”

Looby practically snorts at this: “What about a woman who decides to continue a pregnancy? Is that clouded judgment as well?” Hunt himself acknowledges, as long as we are probing moral consistency, that if the doctor is taking a life, “why not charge a higher-class felony?” It’s just part of the balancing act, he says. If you want to save unborn children you have to target the doctors. But “my feeling is that whether a doctor were facing 5 years or 20, it will have the same impact.”

This then is what the landscape looks like now. South Dakota may be leading the way, but legislators in Georgia, Indiana, Kentucky, Ohio, Tennessee, Missouri, West Virginia, and Oklahoma have introduced similar bills. In the next months we’ll see how fast an appeal heads to the Supremes and whether they’ll hear it. Money is pouring in to support legal challenges on both sides. But in the meantime the conversation has changed... and there’s no telling to whose advantage.