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North Dakota: Where Freedom Blooms on the Hills and Prairies (But Not in Your Uterus)

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North Dakota has become a very dangerous place for women. On Tuesday Republican Governor Jack Dalrymple signed three anti-abortion measures into law. The first, HB 1305, bans abortions performed because of genetic abnormalities or for the purpose of gender selection; the second, HB 1456, bans abortions after the detection of a fetal heartbeat; and the third, SB 2305, requires any physician performing an abortion to have admitting and staff privileges at a local hospital — all this from the state that was just named “most free” in a recent study (ha).  Individually, each of these bills makes it much more difficult to secure a safe and legal abortion in North Dakota, effectively policing patients’ reasons for electing an abortion, shortening the legal time period for seeking that abortion (fetal heartbeats can sometimes be detected as early as six weeks into pregnancy), and limiting the number of qualified abortion providers in the state. Taken together, they constitute a full-scale assault on the rights secured by Roe v. Wade.  I have questions.  Who gets to decide whether a woman wants an abortion for acceptable reasons?  How will the presence of a fetal heartbeat be determined — perhaps through a medically unnecessary transvaginal ultrasound?  And with a single clinic currently operating as the only safe and legal facility for abortions, doesn’t this hospital-privilege requirement effectively eliminate abortion in North Dakota anyway?  What are the class implications of making abortion available only to those who can travel out of the state?

Many would characterize these measures as unconstitutional, and the governor knows it and foresees inevitable legal challenges.  In an official statement, Dalrymple characterized the constitutionality of these measures as “an open question.”Dalrymple

As if these three measures were not sufficiently alarming, the North Dakota Senate and House of Representatives recently passed a fetal personhood amendment, which will appear on the ballot for a popular vote next November. This measure would define human life as beginning at fertilization and assert that “the inalienable right to life of every human being at any stage of development must be recognized and protected.” All abortions would become illegal, with no exceptions for rape or incest or the mother’s health. As many reporters and commentators have already noted (see here, here, and here, for example), such an amendment could eliminate stem cell research, in vitro fertilization, and some forms of birth control. It also poses serious health risks for women. For instance, what about ectopic pregnancy? In an ectopic pregnancy, a fertilized egg (or, as the North Dakota amendment would term it, a “person”) implants in the Fallopian tube instead of the uterus, where the embryo cannot possibly survive.

An ectopic pregnancy.

An ectopic pregnancy.

The condition is life-threatening and requires emergency treatment – even in the best-case scenario, when the ectopic pregnancy is caught early, the patient needs either medication to halt the embryo’s growth or surgery to remove it. Ectopic pregnancies can occur in as many as one in fifty total pregnancies.

What will happen to women with ectopic pregnancies in North Dakota if this measure passes? About half of all ectopic pregnancies will resolve on their own, with the pregnancy aborting spontaneously. The other half will progress until the Fallopian tube bursts. When that happens, women risk losing their lives.  Amidst all the talk about the rights of embryos (doomed anyway, in these cases), where is the emphasis on these women’s lives?  Why aren’t lawmakers in North Dakota concerning themselves with those?

Although proponents of measures like these rarely point it out, the idea that an embryo or a fetus is a “person” with its own rights is a relatively new position. As Sarah Dubow points out in her fascinating book, Ourselves Unborn: A History of the Fetus in Modern America, the equation of a fetus with a child dates back to nineteenth-century attacks on abortion (which, as James C. Mohr’s classic Abortion in America demonstrates, stemmed largely from the professionalization of “regular” physicians and their attempt to stamp out their “irregular” competitors. Prior to that, abortion before “quickening” – the time when the pregnant woman perceived fetal movement – was generally acceptable). Dubow also explains that the idea of a fetus having civil rights is even newer, dating to the second half of the twentieth century. This perspective has always been contested, especially by feminists, who have pointed out that by endowing a fetus with civil rights, we are effectively turning some pregnant women into unwilling “incubators” whose rights are eclipsed by those of the fetus inside them.

Woman as incubator.

Woman as incubator.

In other words, contrary to much of the anti-choice rhetoric, there is nothing obvious or natural or traditional about the idea that an embryo is a person — quite the opposite.  Measures like North Dakota’s (both the three bills already signed into law and the amendment up for a vote next November) use faulty logic and unexamined anti-choice assumptions to threaten women’s rights, women’s health, and women’s lives.  Even if the fetal personhood amendment does not pass — and it very well may not; a similar amendment was voted down recently in Mississippi — and even if the three existing laws do not withstand legal challenges, we need to be very, very concerned about these kinds of measures.  We need to challenge not just the laws themselves but also the misguided and sometimes misogynistic premises underlying them.  We need to make sure that women’s rights take precedence over embryos.

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