In their Long March toward the recriminalization of abortion, the right-to-life movement has been adept in coopting the language of its pro-choice opponents. The classic example involves the appropriation of concerns about the health of the mother — a constitutionally required exception to abortion bans even for late-term abortions — as an excuse for abortion restrictions, as accepted by Justice Kennedy in his famously patronizing opinion in a case upholding a federal “partial-birth abortion” ban.
But Kentucky senate president Robert Stivers has come up with an even craftier bit of legerdemain in defense of a bill to outlaw abortions after 20 weeks of pregnancy, which is suddenly on the brink of passage following Republican legislative gains on November 8:
Stivers said his personal preference would be to ban abortions starting at a date before 20 weeks.
“This is my belief: there are two viable beings involved,” he said. “One had a choice early on to make a decision to conceive or not. Once conception starts, another life is involved, and the legislature has the ability to determine how that life proceeds.”
Fetal viability (the ability to survive outside the womb) is, of course, the linchpin of the constitutional right to abortion. Restrictions prior to fetal viability are never constitutional, though the standard shifted somewhat in the 1992 Supreme Court case of Planned Parenthood v. Casey, which in recognition of medical advances abandoned the strict trimester system for determining viability.
Antiabortion activists would dearly love to secure a judicial standard that significantly reduced the period of pre-viability. But since the medical profession isn’t cooperating with that aspiration, right-to-lifers have sought different rationales for banning earlier abortion, most notably the claim (disputed heatedly by most physicians and scientists) that the fetus can feel pain after 20 weeks.
But so far as I know, the very different conflation of conception with viability that Stiver (assuming he didn’t just mix up his buzzwords) attempted is a new one. If a zygote were in fact “viable,” then you might have the sort of competing interests that would in theory justify legislative intervention, though even then a health exception (which the Kentucky bill does not provide in its 20-week ban) would be required to pass constitutional muster. But obviously this is to change the word “viable” into something nonsensical.
Stivers goes on, of course, to add insult to ignorance by suggesting that the “right to choose” is exhausted at the moment the woman involved makes “a decision to conceive.” From then on, her body belongs to the Commonwealth of Kentucky. Stivers is thus just asserting his property rights on Kentucky’s behalf.