Wall Street Journal editorial board member James Taranto downplayed a new Kansas bill that significantly restricts reproductive rights and ignored the consequences of a “personhood” provision that declares life begins “at fertilization.”
Writing in reference to articles by the Associated Press and Reuters that describe the "sweeping" Kansas bill, reported as "one of the most restrictive abortion laws in the nation," Taranto instead characterized the restrictions in the bill as “modest” and mocked reproductive rights advocates who are raising alarm about the bill's thinly-veiled “personhood” provision. From the WSJ editorial:
[A]bortion proponents are especially exercised about a provision “declaring that life begins 'at fertilization' ”
Holly Weatherford, another ACLUer, frets that the stipulation could “be used as a tool of harassment.”
Hey Holly, did you know the word “gullible” isn't in the dictionary? Just kidding, it's there, as we noted in October. You know what else is there? “Fertilization.” Here's Merriam-Webster's definition 2(b), the relevant one for this discussion: “the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated.”
This is basic reproductive biology. The assertion that life begins at fertilization is a tautology. [Deputy director of the ACLU Reproductive Freedom Project Talcott] Camp and Weatherford might as well be objecting to a legislative finding that A is A or 2+2=4 or a tautology is true by definition.
If your goal is to maximize sexual freedom, then it's expedient to answer the abortion question in the most permissive way possible. We suppose in that case simply defying science and logic, as Camp and Weatherford do, is a tempting shortcut. But when your position depends on denying a tautology, you may find it a difficult one to defend.
But Taranto's “assertion that life begins at fertilization” has been rejected by the Supreme Court not only because it infringes on fundamental constitutional protections, but because when "those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary...is not in a position to speculate as to the answer." As such, in Roe v. Wade, the Court disavowed laws that define a fertilized egg as a person:
[T]he law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.
In short, the unborn have never been recognized in the law as persons in the whole sense.
In view of all this, we do not agree that, by adopting one theory of life, [a state] may override the rights of the pregnant woman that are at stake.
"Personhood" initiatives are part of the wave of new state restrictions on reproductive rights pushed by right-wing legislators. They have not, however, been enacted in their strongest forms due to widespread opposition. In addition to its patent unconstitutionality, “personhood” has been largely rejected because legally redefining life at conception could not only criminalize abortion, but also stem cell research, in-vitro fertilization, miscarriages, and certain forms of contraception.
The Kansas measure attempts to tone down its ramifications by explicitly noting "any rights suggested by the language are limited by decisions of the U.S. Supreme Court." But this is a thin distinction from other blatantly unconstitutional restrictions on reproductive rights that don't bother with this veneer of respectability. Any chance to challenge Roe v. Wade is litigation bait for anti-choice activists, which is precisely why the ACLU believes laws of this sort can “be used as a tool of harassment.”
Just like new laws in North Dakota and Arkansas that ban abortions far earlier than what is permitted under constitutional law, or Republican Rep. Paul Ryan's repeated support of the federal Sanctity of Human Life Act, the clear unconstitutionality of the Kansas “personhood” feint will not prevent it from being cited in Roe v. Wade test cases. Right-wing activists know full well these laws aren't just aspirational, as is clearly reported in the Associated Press article referenced by Taranto:
Many anti-abortion legislators see 'at fertilization' statements as symbolic. But it could underpin lawsuits by prospective parents or grandparents who want to block abortions or be cited by abortion opponents in pushing law enforcement officials to scrutinize clinics, said Troy Newman, president of the anti-abortion group Operation Rescue.
“For me, this is just delightful,” Newman said. “It opens up so many avenues.”
Ultimately, Taranto's example of "sexual liberationists doing violence to language and logic" is a cover-up of this fringe of the anti-choice movement that more mainstream Republicans disavow. Even though the Kansas version has a disclaimer of unconstitutionality attached, it still is a product of the extremist “personhood” movement seeking to provoke the courts into rolling back reproductive rights. From “Rights At Risk: The Truth About Prenatal Personhood,” a recent report by the Center for Reproductive Rights that describes the real-world consequences of this effort:
Prenatal personhood measures would--and are intended to--completely and absolutely ban abortion, with no exceptions. Many of these measures would also effectively ban common forms of contraception and restrict or even ban assisted reproductive technologies such as IVF.
Moreover, the legal impact of prenatal personhood measures extends far beyond banning abortion and other forms of reproductive health care. Because extending legal rights to fetuses could criminalize any conduct that might harm a fetus, a prenatal personhood law could chill doctors from providing the best medical care to pregnant women. For example, in some cases an embryo implants in a fallopian tube, instead of in the uterus, and will not be able to continue to develop; all such pregnancies (one type of “ectopic pregnancy”) are health-threatening - and possibly life-threatening - for the pregnant woman, as there is a serious risk of fallopian tube rupture. Therefore, these pregnancies must be treated quickly. However, a prenatal personhood law might put a physician at risk of criminal liability for treating the pregnant woman, despite the risks to her health and life. Physicians would similarly be at risk for helping a woman experiencing a miscarriage because they could be criminally prosecuted for harming the embryo or fetus.
Further, a prenatal personhood measure might subject a woman who suffers a pregnancy-related complication or a miscarriage to criminal investigations and possibly jail time for homicide, manslaughter or reckless endangerment. And because so many laws use the terms “persons” or “people,” a prenatal personhood measure could affect large numbers of a state's laws, changing the application of thousands of laws and resulting in unforeseeable, unintended, and absurd consequences.