Mississippi Asks Federal Court to Replace Fetal Viability With Junk Science

Anti-choice advocates in Mississippi recently upped the ante in overturning abortion rights, telling a federal court it should replace the “vague and constantly shifting concept of viability” with the detection of a “fetal heartbeat” as a point where states can begin to ban abortion.

The declaration came in court documents filed in opposition to a motion to block SB 2116. Signed into law by Gov. Phil Bryant (R) on March 21, it prohibits abortion after a “fetal heartbeat” has been detected. The statute defines “fetal heartbeat” as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac” and would ban abortion as early as six weeks into pregnancy, amounting to a near total abortion ban since many don’t know they’re pregnant at that point. 

Attorneys for the state concede they have been unable to identify medical research or data that show a fetus has reached the “point of viability” during the time period in which S.B. 2116 would operate. That’s why they’re urging the court to reject viability as the only proper consideration in determining the law’s constitutionality.

The law, scheduled to take effect July 1, contains an exception for instances when the life of a pregnant person is at risk, or to prevent “a serious risk of the substantial and irreversible impairment of a major bodily function” to the pregnant person. 

Shortly after Bryant signed the near total abortion ban into law, reproductive rights advocates sued to block the measure, arguing it is an unconstitutional pre-viability abortion ban.

In its court filings, attorneys for the state concede that viability is a critical marker by which courts judge abortion restrictions. But, the attorneys argue, the time has come to change that standard. “Defendants dispute that viability is the only proper consideration” in determining the constitutionality of SB 2116, the attorneys argue.

“As a matter of science and medicine, life begins at conception,” the brief states. “As opposed to a vague and constantly shifting concept of ‘viability,’ detection of a fetal heartbeat is an objective milestone, and also an extremely accurate indicator of the likelihood a fetus will survive until birth,” the brief said. 

The anti-choice legal argument picks up on the political argument supporters of the near total abortion ban made when the bill first passed. “The heartbeat has been universally hallmark of life since man’s very beginning,” Bryant told supporters in the Mississippi capitol rotunda moments before he signed the GOP-backed measure.

Mississippi isn’t the only state to argue that courts should replace the viability standard with detection of a “fetal heartbeat.” “Sometimes, the evolution of the law requires bold steps,” Ohio Attorney General Dave Yost said in a statement regarding SB 23, a Republican bill that bans abortion at six weeks. Gov. Mike DeWine (R) signed the legislation into law.

“In the last 46 years, the practice of medicine has changed,” Yost continued. “Science has changed. Even the point of viability has changed. Only the law has lagged. This law provides a stable, objective standard to guide the courts.”

Attorneys challenging Mississippi’s near total abortion ban will have an opportunity to file a response before the court considers arguments and issues a ruling, likely before the July 1 deadline for the measure to take effect. 

Advocates Offer Chief Justice John Roberts a Way Forward in Louisiana Abortion Rights Case

In February, reproductive rights advocates found an unlikely ally at the U.S. Supreme Court: Chief Justice John Roberts.

Roberts joined his liberal colleagues in voting to temporarily block a decision by the Fifth Circuit Court of Appeals that would have allowed a Louisiana abortion law designed solely to shutter clinics take effect. On Wednesday, advocates from the Center for Reproductive Rights (CRR) filed their formal request with the Court to take the case. The petition, aimed squarely at Roberts, is designed to settle any debate as to the power of Whole Woman’s Health v. Hellerstedt as Supreme Court precedent.

The law at issue, Act 620, would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the care. Louisiana lawmakers admitted they modeled Act 620 specifically after the provisions in Texas’ HB 2 that the Court eventually declared unconstitutional in 2016, in the Whole Woman’s Health decision. A federal district court temporarily blocked Act 620 from taking effect in 2014 and again in 2016 before permanently blocking it in April 2017. Then, in September 2018 a three-judge panel from the Fifth Circuit reversed that district court decision. In late January, the Fifth Circuit declined to rehear the case—which prompted an emergency petition to the Supreme Court by reproductive rights advocates. 

Roberts voted to block that Fifth Circuit decision. Although that vote was clearly a win for reproductive rights, it would be premature to describe it as “pro-choice.” It was more “pro-status quo.” Wednesday’s petition puts that status quo vote to the test.

Advocates have asked the Court to grant their request to summarily reverse the Fifth Circuit. That means they want the Court to overturn the Fifth Circuit without briefs or oral arguments on the merits of the case. This would be a legal equivalent to the Supreme Court saying “nope” as opposed to “not quite, try again;” a summary reversal wouldn’t send the case back to the Fifth Circuit for future arguments like a more typical remand would. It would instead reinstate the extensive district court findings blocking Act 620 to begin with.

According to the petition filed with the Roberts Court, summary reversal is appropriate here because, by Louisiana’s own admissions, Act 620 is identical to provisions the Roberts Court already struck down as unconstitutional. A failure to issue a summary reversal here would send a signal to the lower courts that they could continue to go rogue—as the Fifth Circuit did—on precedent with which the judges disagree.

“Summary reversal would reestablish this Court’s authority to say what the law is and reaffirm the principle that lower courts are absolutely bound to follow this Court’s precedents—a principle that is most likely to be tested in controversial and politically charged cases such as this,” the petition states.

To drive this point home, the petition cites work on the necessity for following precedent co-authored by Justices Neil Gorsuch and Brett Kavanaugh.

Summary reversal would also allow Roberts an out of this fight. He could both side with settled precedent and avoid a big abortion rights showdown just three years after Whole Woman’s Health and almost a year after Justice Kennedy’s retirement.

It’s a smart request. 

There is, of course, no guarantee it works—a fact CRR attorneys acknowledge in their petition. “No doubt Louisiana will argue that the Fifth Circuit’s aggressive fact-finding makes this case a poor candidate for summary reversal,” the petition states. With this in mind, advocates are also asking the Court to agree to hear the case on the merits as an alternative. 

This is a much riskier request, but an unavoidable one.

As advocates note in their petition, refusing to grant cert at all would “leave the irredeemably flawed decision of the Court of Appeals on the books, and it would weaken the constitutional protections recognized in Whole Woman’s Health—at the very least— in Louisiana, Texas, and Mississippi.” Denial of cert would likely also have devastating consequences in places like Missouri, where the fight over admitting privileges requirements in that state is working its way through the extraordinarily conservative Eighth Circuit Court of Appeals.

“Denial of certiorari also would dissolve this Court’s stay of the Fifth Circuit’s decision and put Act 620 into immediate effect,” the petition continues. “Should that happen, abortion access in Louisiana, which is already hanging by a thread, would be reduced to just one doctor overnight.”

But agreeing to hear the case on the merits rather than issuing a summary reversal would signal that the Court is interested in at least revisiting some of Whole Woman’s Health—which is why advocates approach this request more delicately.

“No seismic changes have occurred in the past three years that would justify overruling Whole Woman’s Health,” the petition states. “Whether a decision of this Court is to be modified in any respect, however, is this Court’s solemn responsibility after full consideration of the merits.”

It would be difficult to read the Court hearing a case on the merits here in June Medical Services v. Gee as good news for abortion rights. While there may not have been a seismic shift in abortion rights law in the last three years, there has been a seismic shift on the Court with Justice Kavanaugh replacing Justice Kennedy. The Court granting review wouldn’t necessarily signal a reversal of Whole Woman’s Health. Indeed, it could provide the Court an important opportunity to reaffirm its holding. But given the Court’s conservative majority and Roberts’ own voting history, that idea makes me nervous. 

Attorneys for the State of Louisiana will have a little more than a month to respond to Wednesday’s filing, though it is not uncommon for parties to ask for—and the Court to grant—an extension. Should that happen, it is unlikely the Court will consider the petition this term, instead of holding it for consideration until the justices reconvene in October.

I’m Nevada’s Attorney General. Here’s Why I’m Fighting an Abortion Restriction in a State Across the Country.

Last week, Ohio became the latest state to pass a dangerous six-week abortion restriction: in practice, a near-total ban on abortion. As Nevada’s top lawyer, it is my job to know the law—both state and federal—and protect the people of my state. While extreme abortion bans like Ohio’s garner much-deserved attention, another kind of abortion ban is making its way through the courts.

In Kentucky, efforts are underway by GOP Gov. Matt Bevin’s administration to impose regulations that would create substantial obstacles for those seeking abortion care by requiring abortion clinics in the state to have signed agreements with an ambulance service and a hospital in the event of an emergency. These overly burdensome regulations would effectively close the doors to the EMW Women’s Surgical Center in Louisville, Kentucky’s only remaining abortion provider.

This kind of restriction may not be an outright ban. But it has the same effect: It helps to create a landscape where patients might have the right to an abortion on paper, but in reality, cannot access it at all. The idea is not new. But these attempts to curtail reproductive rights are becoming more aggressive as our U.S. Supreme Court becomes more conservative.

As a newly elected Democratic attorney general, I have seen how my colleagues and fellow Democratic AGs act as the “people’s lawyer” to protect their states and the issues that matter to their communities. That is why earlier this month I filed a “friend of the court” brief with the Sixth Circuit Court of Appeals, in support of last year’s ruling by U.S. District Judge Greg Stivers in EMW Women’s Surgical Center v. Meier that found Kentucky’s law unconstitutional. There is no question that a measure that would lead to the elimination of the last remaining abortion provider is in effect an abortion ban—and unconstitutional, too. Incremental restrictions like this Kentucky law have no medical benefit for patients and have been weaponized to erode a woman’s constitutional right to a safe and legal abortion. Pervasive attacks on access to safe, legal abortion anywhere are a threat to reproductive health everywhere.

Proponents of the Kentucky law also attempted to use the availability of reproductive health-care services in neighboring states as an excuse to restrict care in their own state. This resonated with me as well: Nevada voters passed a referendum years ago to ensure people in our state had access to abortion care. Other states cannot use this as an excuse to absolve them of their duty to respect their residents’ constitutional rights.

My Democratic attorney general colleagues agreed, and 19 of them joined me in support of our amicus brief. We told the court in no uncertain terms: The ultimate burden in this case—the elimination of the only abortion services provider in the state of Kentucky—amounts to an insurmountable obstacle for the people of Kentucky to access constitutional healthcare. Kentucky Attorney General Andy Beshear also eloquently argued against this regulation in a separate brief, and we support his efforts as well.

The legal fight to preserve abortion access in Kentucky and this multi-state amicus brief may not steal the headlines today or compel boycotts from Hollywood like the recent extreme bans in Ohio and Georgia, but if Kentucky succeeds in shutting down their only abortion provider and cuts off access to safe abortions, you’ll read about it when it is already too late for too many women and families. I refuse to let it happen in silence. I will sound the legal alarm bells, for that is something the people of Nevada elected me to do: fight for the rule of law.

The fight for comprehensive health care goes beyond abortion alone. That is why last month, I joined 19 of my colleagues in other states to fight Trump’s Title X “domestic gag rule,” a harmful policy that would dismantle the nation’s family planning programs, including health treatments and cancer screenings. When Trump went after the Teen Pregnancy Prevention Program, 21 Democratic attorneys general including me filed a brief opposing an abstinence-only curriculum that we knew would put young people at risk. And when Pennsylvania, New Jersey, and California filed lawsuits against Trump’s attempt to end birth control coverage under the Affordable Care Act, I filed briefs supporting my colleagues in defending our rights to health care.

Time may feel like it’s fleeting for those who need access to reproductive health care, including safe, legal abortion. The current administration is stacking the courts with conservative judges and making it harder for lawyers to defend our rights and freedoms. Our democracy is in jeopardy.

Let’s be clear: Attorneys general like me will not give up. Our system of checks and balances only works if we can rely on our judicial system. I recommit to the promise I made during my campaign: that I will always use the legal tools at my disposal to protect Nevada and our democracy. And as these attacks on our rights continue, I will fight for the rule of law, including access to safe, legal abortion.

Black Maternal Health Week Shines Spotlight on Black-Led Solutions

Today marks the final day of the second Black Maternal Health Week.

Hosted by the Black Mamas Matter Alliance (BMMA) and backed by 17 U.S. senators, including presidential hopeful Sen. Kamala Harris (D-CA), the annual week seeks to increase awareness and create opportunity for dialogue and action on Black maternal health.

It’s hard to deny that there has been a marked increase in media attention on this issue over the last few years. From a yearlong series on maternal mortality at NPR to the cover story of the New York Times Magazine last April, the conversation about maternal and infant mortality, and particularly the disparities facing Black women, has reached a fever pitch.

But the BMMA leaders don’t just want to see media coverage of the problem—they want to see reporting on the solutions. “Too much reporting on Black maternal health has been doom and gloom,” said Monica McLemore, a BMMA advisory committee member and assistant professor in the family health nursing department at University of California, San Francisco, during an interview with Rewire.News.

“I had written last year [that] the media coverage kept asking why, why is this happening?” said Elizabeth Dawes Gay, co-director of BMMA. “I think we gave them a pretty clear answer: It’s racism. It’s discrimination, it’s societal and systemic issues that need to be addressed.”

BMMA is working to highlight community-generated, Black-led solutions. “One of our major goals as an alliance is to have Black leaders on maternal health at the forefront, and I think we’re doing that,” said Dawes Gay. “The media, public health officials, and medical professionals are recognizing the role and importance of Black-led efforts on maternal health.”

“Part of this awareness week is to lift up Black mamas and let them bring forward their solutions,” added McLemore.

She sees a lot of engagement on this front on social media, including through Twitter conversations on the week’s hashtag. McLemore recalled one woman’s idea to start a postpartum visiting van: “Go around [and] see postpartum moms, bring toys, social support, and just to see how they are doing.”

Jessica Roach is the founder and executive director of Columbus, Ohio-based Restoring Our Own Through Transformation (ROOTT), a partner organization to the alliance. Roach has been involved with BMMA since the beginning, and credits the alliance with much of the increase in conversations about the issue in the media. “I see there being a great deal of attention that’s being drawn to maternal health,” Roach told Rewire.News. “A great deal of this has to do with the advocacy of the Black Mamas Matter Alliance, that has come together to lift and push this issue in our voice.”

Centering Black-Led Solutions

BMMA is a relatively new initiative, formed in late 2016, but it builds off of previous efforts to focus on the well-being of Black mothers and babies.

Dawes Gay describes the group as a platform meant to elevate work happening on the ground across the country. The alliance is made up of more than 20 kindred partner organizations that are already focused on this issue in their work.

The inaugural Black Maternal Health Week last year was an experiment to see what worked. “People were hungry for a conversation and for a space to have dialogue,” said Dawes Gay. Much of that dialogue took place on social media, and the engagement on those platforms has increased significantly this year, she said. BMMA has also seen a more nuanced and deeper conversation on the issue.

Although BMMA has organized a number of events and webinars directly, the majority of the events are organized locally by its partner organizations.

ROOTT, for example, organized six events for Black Maternal Health Week—including a prenatal yoga class, a live podcast taping, and a community discussion featuring Dr. Joia Crear-Perry, founder of the National Birth Equity Collaborative (NBEC) and an advisory committee member for BMMA. ROOTT’s work spans from advocacy to direct service, and is fortified by a doula program that supports Black mothers in the Columbus community.

As Roach noted, the “in our voice” piece is integral to the work of BMMA. Roach also co-leads the BMMA care working group, one of three groups that drive work forward at the alliance. The other two groups are focused on policy and research, respectively, and each group meets regularly via phone to coordinate their work within these focus areas.

The alliance has leveraged its reach and community-based connections to elevate the work and perspectives of Black-led initiatives. This is evident in, among other things, the way partners have been framed by national outlets. Jennie Joseph, whose National Perinatal Task Force is a kindred partner, was featured last week in a video for the TODAY show. The video segment powerfully connects the dots between Joseph’s personal experience with hysterectomy due to endometriosis and her work running a prenatal care clinic for low-income mothers in the Orlando area.

“I recognized there was no power or agency inside of health care in this country, regardless of whether you are insured or uninsured, regardless of race or ethnicity—I personally suffered at the hand of a system such as this,” said Joseph. “I wanted to fix this mess for myself, but also I felt a drive to stand for women and say, ‘hey, this is not right.’”

Decolonizing Research and Informing Policy

Held April 11-17, each Black Maternal Health Week has a theme. This year’s theme was “Decolonizing Research to Develop Meaningful Policy for Black Maternal Health.” For McLemore, who is a researcher herself, decolonizing research on Black maternal health means “moving towards more of an emancipatory vision about how we can get better data, what data is missing, what we’d like to be collected and how to think about the analytics of existing data.”

In addition to hosting a webinar on decolonizing research in Black maternal health, the group also hosted a Twitter chat called #CiteBlackWomenSunday, emphasizing the importance of supporting research led by Black women on Black maternal health. Racism can play out in research spaces as well, and can shape whose voices are centered, and whose work is seen as authoritative scholarship.

Inas Mahdi, a BMMA collaborator, emphasized this point in a graphic created by BMMA: “Black women researchers bring a combination of lived experience and research training together to apply love, social justice and applied research principles to the field of maternal health. The research I conduct, I conduct with love and scientific integrity, which expands the potential for a real meaningful impact to advance Black maternal health.”

Another important part of this conversation is how that research is used once it’s completed. Dawes Gay puts special emphasis on how research informs policy. “How are we then using that research to inform policy, to develop policy that actually works for Black mamas?” she asked. “We’re [also] thinking realistically about how legislation can help bring holistic care to Black mamas, that is community-driven and that respects and acknowledges Black people.”

There have been some policy wins for the group, and for their local and state partners. On the federal level, BMMA counts the formation of the first-ever congressional Black Maternal Health Caucus as a win. The caucus will work to advance legislative priorities that focus on Black maternal health specifically, such as urging members of Congress to cite racism as a cause of maternal mortality. “I think certainly at the policy level, the fact that there is now a BMHC is a really great sign of progress,” said Dawes Gay.

The caucus was announced just two days before the 2019 Black Maternal Health Week began, and Dawes Gay is hopeful that it will help advance legislation at the federal level. Elsewhere, on the state level, more than 80 bills have been introduced that address this issue, signaling significant legislative momentum nationally.

Challenges and Hope

While there has been increased momentum in terms of media attention, legislation, and attention toward Black-led initiatives, there are still challenges ahead for this work. A major one is funding for the Black-led groups in the alliance, said Dawes Gay. Rather than increased funding for the groups already doing the work, Dawes Gay says that foundations are funding larger, more established, and white-led organizations that do not have the same connection to the community to address Black maternal health.

“There are a lot of big white-led organizations that are now attending to [Black maternal health]. That is important, but it is not fair for funders to provide more resources to these really large organizations when there are Black-led organizations that already do this work very well. All they need is the right amount of resources to be able to scale up and share their models. They should be prioritized to advance solutions for Black maternal health,” said Dawes Gay.

While many of BMMA’s kindred partners are executing programs producing improved outcomes for the women they support, their work is in jeopardy without adequate financial resources.

Another question is what it will actually take to move the needle on the disparities facing Black mothers and babies, like the fact that Black women are four times more likely to die as a result of pregnancy and childbirth than white women. McLemore is particularly concerned about how the political climate will affect this, in particular what will happen if abortion becomes even more difficult to access. ”If abortion becomes outlawed, illegal, or a privilege of whatever state you live in, our current health system is not going to be able to absorb all the people who aren’t able to get the abortion they want,” she explained.

“All of a sudden we’re going to have people who won’t be able to access those services, and we’ll see a different population of people coming into our pregnancy system.”

But despite these challenges, advocates remain optimistic. “I’m hella hopeful,” said McLemore. She’s in talks about creating a digital hub in Oakland that could offer mini-grants to accelerate the work of community members trying to address this issue. “We’ve been too timid in trying to figure this out. It’s time for some bold action.”

Dawes Gay is also optimistic about the trajectory of BMMA’s work. “I am very hopeful that this work is ultimately going to lead to some meaningful change for Black mamas in the U.S.”

While she’s happy with how this second Black Maternal Health Week has unfolded, Dawes Gay acknowledges that the conversations are just beginning.

Roach also feels positively about the direction of the Black maternal health movement. “It’s not even just hope, it’s faith and trust in the integrity of what it is that we are doing in our organization and what it is that other Black-led organizations are doing across the country. How we’re finding that space to communicate with and support each other.”

Lucy Flores Raised Questions About Women Working in Politics That We Still Need to Answer

Days after Lucy Flores published an essay detailing inappropriate touching and kissing she says she experienced from former Vice President Joe Biden at a 2014 rally in Las Vegas, she appeared on CNN and presented viewers with a question: What does a person in the political arena do when they face such an experience?

Flores, a former Nevada state assemblyperson, asked, “What do you say? Who do you tell?”

I have not been able to stop thinking about those two questions, and I believe that we owe her—and ourselves—an answer.

In the days after Flores’ article was published, we witnessed many dismissing her claims, politically weaponizing her story, questioning her intentions, or coming to Biden’s defense as if one individual’s positive testimony could erase the possibility that others could have a negative experience. We saw Latino men in politics be some of the first to react, not in her support but rather to dismiss her truth.

As a Latina woman, I have to admit, I was not surprised—but I was disappointed and pissed off. There was an alternative scenario in which the Latinx political community could have come together. Regardless of what political party they support, what presidential campaign they endorse, or who they were about to work for, Latinxs could have united to show the country that we believe women, and we expect better. We could have risen above partisanship and demonstrated that we will no longer tolerate such actions and will stand in support of those who courageously come forward. It could have been a moment to express our values as a community and make participation in politics more accessible for us all.

That did not happen, and we should sit with that. We should ask ourselves: Why not?

In most institutions, organizations, and spaces in the progressive movement and political realm, there are no structures of accountability that create a safe environment and process for women or anyone else who experience inappropriate behavior from someone in higher power. There is very little sense of a culture of security and support to come forward without fear of retaliation. Flores’ public testimony could be a spark for us to finally change that.

Weeks after her story was brought into the public eye, no one has attempted to answer her two simple questions, “What do you say? Who do you tell?”

I do not pretend to believe I can answer that alone, but I do want to honor her courage by attempting to shed light on what could be at least three attainable steps to get closer to an answer.

First, if it does not already exist, every campaign and political organization should develop a statement of principles that outline the values it upholds. Campaigns should also establish a code of ethics that outlines how those principles are to be reflected in the action it takes. Every single staff member should be made to sign and expected to adhere to them no matter their rank in the organization or political campaign.

Along with the statement of principles and values and the code of ethics, campaigns can adopt a grievance procedure that includes clear reporting processes and outlines steps for investigation and resolution. For this to work, the appropriate internal infrastructure should be set in place. That should include mandatory training on sexual harassment for employees, volunteers, and managers. In the case of political campaigns, candidates should be expected to do the same.

One effective way to help ensure these protocols are followed is to enter into a collective bargaining agreement that holds both employer and employee accountable.

I work in the labor movement, and I come from a proud family of worker and immigrant rights organizers. Believe me when I say I know that the nonprofit sector and unions are not immune to inappropriate behavior and lack of accountability toward the perpetrators. However, it is in this same space that I have also witnessed women leverage their collective power to address sexual harassment in their workplaces, push institutions to do the same, and lead the charge for public policy that benefits all working people.

Collective bargaining is not just about wages and hours. Workers have the right to negotiate with their employer about any working condition they deem necessary. Therefore, many union contracts in different sectors have clauses in them addressing sexual harassment and inappropriate behavior—all of which are binding and actionable if violated.

Two examples show us the potential of putting such demands at the forefront of our work. In California, working women in the janitorial sector—many of whom were members of SEIU United Service Workers West—led and won a campaign to pass an anti-sexual harassment law in their state. Women janitors, born from their experience working late in office buildings and other commercial settings, recounted being raped, harassed, and threatened on the job. In 2016, then-Gov. Jerry Brown (D) signed the law after some of those workers began a hunger strike in front of the California State Capitol. Their demand that employers be trained to address sexual harassment became a state law governing every workplace for every worker in their industry.

Another example comes from hotel workers in Illinois. After a union there conducted a survey of hospitality workers in which 58 percent of them shared that they had been sexually harassed by a guest, UNITE HERE Local 1 successfully pushed for and passed the “Hands Off, Pants On” ordinance. Thanks to the measure, hotel companies in Chicago are required to provide panic buttons to hotel workers in case of harassment or any other form of violence against their staff.

Both examples show what’s possible when we center the experience of women—especially women of color—instead of dismissing their issues as peripheral or a distraction from business as usual.

It’s overdue for us to discover what it can look like when we do the same in the realm of politics. Society looks at harassment as an issue between two individuals where the rest of us have to take a side and decide who is telling the truth. Individuals need to be held responsible for their behavior. But the conditions that allow them to get away with it are systemic issues rooted in power dynamics that can then only be addressed collectively.

Lucy Flores raised these questions, and collectively we can find solutions.

Meet Three Innovators Shifting the Maternal Health Narrative

No one can deny that there is a maternal health crisis, with many U.S. women experiencing pregnancy-related complications and even death.

Ending Wednesday, Black Maternal Health Week emphasizes the particularly high risk for Black women, who are more likely to die from a pregnancy-related cause than white women. But while these preventable deaths are alarming, many advocates say there’s more to maternal health than Black death. Some are looking to creative solutions that don’t rely solely on medical practices.

In that vein, Rewire.News talked to three people—a tech worker with a vision, a painter and breastfeeding advocate, and a public health professor who’s thinking about geography and preterm birth. Each experiments with telling maternal health stories in her own way, and at least two want to shift the Black maternal health crisis narrative to emphasize on Black life, community self-help, and #BlackJoy.

Whitney Robinson: Hacking the Way to a Happy, Healthy Pregnancy

When Whitney Robinson looks at the after-care forms that hospitals typically give new parents, she often shakes her head.

(Courtesy of Whitney Robinson)

As a product manager, the Durham, North Carolina, resident specializes in “user experience”—making sure products are easy to understand and use. The mother of three sees very little that’s easy to use about these health-system documents, much less pleasurable.

“Your first week going home with a baby, you don’t even know where the forms are. You are too tired to read them,” Robinson said. “We may give women information that there’s a doula in your neighborhood, but there should be no expectation that a new parent should have to do anything to reach out.” In contrast, she cites the work of doulas, who maintain a regular schedule of visits, come to the home, and may even bring meals.

Robinson thinks that technology can help people—especially Black women—”hack their pregnancies” and focus on getting the information they need, making their own decisions, and experiencing joy when much media coverage about Black people and pregnancy concentrates on dire statistics about death, poor health care, and disrespect from providers.

In the first phase of what she’s calling The Renée project, she’s traveling to cities across the nation to talk to people about their pregnancy experiences, brainstorm what they needed, and develop a tech resource that can fill the gaps. She envisions these “jam sessions” as something like community block parties—where there’s something to eat, music, the kind of storytelling that happens when the vibe is right, and everyone walks away with something (in this case, a chance to think about their own lives and a cute succulent plant as a parting gift).

At a recent Durham group, six women wrote their birth stories and then talked about everything from a recent miscarriage to an ectopic pregnancy that led to the discovery of cervical cancer.

Robinson is planning other sessions later this spring in New York and Baltimore.

What will come out of these groups? Robinson is not sure yet. It could be anything, as long as this collective generation of ideas inspires it. She’s considering an app that sends daily meditations or prayers. She wonders if an app could prompt pregnant users to document their joyful moments, amid the many discomforts of pregnancy and distressing news about the racial maternal mortality gap. But she’s leaning toward a game of some sorts, building on her previous experience creating a game to help explain disaster relief.

“Delight is important. I don’t want to create an app that says, ‘My baby is the size of a mushroom today.’ But I believe that ‘gamification’ of pregnancy can happen, and the whole process may lend itself to a game, since there are stages. You can do things like create an app to incentivize going to appointments or get a free massage when you are at the end of the first trimester. But games incentivize naturally. When you hit that goal, you are motivated to hit the next one.”

Robinson has personal experience relying on technology during a challenging time. She turned to social media after her first pregnancy ended in miscarriage in 2011.

“I was 25. I was healthy. My blood pressure was low. I waited to have sex until I was married. I did all the things my parents said to do. I really wanted my baby, and though my pregnancy wasn’t planned, when it all went south, I found myself fighting to keep a child my body was pushing out.”

“I didn’t even realize I was part of a statistic then [of either the high rates of Black women experiencing pregnancy complications]. I didn’t know anything about pregnancy,” Robinson said.

But it was an epiphany during her second pregnancy, which ended in the successful home birth of her son, that helped bring about this project. It hit her after four months of bed rest; pushing back against being categorized as “high-risk” due to her previous pregnancy loss; and a transformational relationship with a midwife who shunned “one-size-fits-all” methods of prenatal care.

She went on Facebook and did an informal survey, asking about 30 people about what they needed during pregnancy. One hundred percent said more support.

Lauren Turner: Turning the Negative Into Nurturing Art

Lauren Turner—otherwise known as Ren the Doula—remembers when a relative told her not to flash “that titty” in front of the woman’s husband. Meaning, don’t breastfeed publicly or in the presence of family, male members most of all. 

(Courtesy of Lauren Turner)

She recalled the moment with shock and outrage, especially because she had tried to breastfeed discreetly, often wearing undershirts or even feeding her child in a car. It was profoundly disempowering for the young mother: Because if breastfeeding, literally a physical and biological act of creating a healthy family, couldn’t be done inside family spaces, where could it be accepted?

Turner, a Baltimore artist who has trained and worked as an abortion and birth doula, didn’t want to wallow in the disappointing encounter. “I’ve gotten my voice from some negative moments,” Turner said, including family and friends questioning her decision to choose home births.

“But every time my daughter would breastfeed, I would get a high. And that helped me come out of what I was told was ‘close to’ post-traumatic stress disorder and postpartum depression” after a particularly hard second delivery in which she didn’t have the support she craved.

Though it took a while to arrive at the idea, Turner illustrated and designed a coloring book, Breastfeeding With Affirmations.

The affirmations are what Turner herself wished she had heard from family and particularly her mother. One of the book’s 35 pages is ringed by outlines of tulips and proclaims: “Breastfeeding is an intimate experience. I feel confident breastfeeding my baby wherever we go”—a direct response to her relative’s naysaying. Another pictures a woman in a chunky necklace and professional work clothes—though she’s also wearing two breast pumps while tapping away at a laptop. Users can color in daisies and lilies as symbols of growth, nature, and fertility. A child, with a curly Afro, pretends to breastfeed a doll in yet another; the latter image expresses Turner’s commitment as a Black artist making birth-themed art that depicts Black people.

“You can go on Instagram and see all of these amazing pieces about birth and even Black people birthing. When I went online to find this art, I realized that almost none of the artists were Black. I realized that people want to show diverse images of birth, and why wouldn’t they want to paint us? Black people are beautiful.

“But I feel it’s more a marketing tool for [non-Black artists and birth workers]. I mean, some of these artists wouldn’t say hello to me on the street. Creating the coloring book was my trying to inspire other Black women artists.”

Turner, who attended an arts high school in Baltimore and has painted for most of her life, has also created other art and creative tools to support breastfeeding parents: a bingo card that includes terms such as “power pumping,” “colostrum,” and “relactation,” and is a baby-shower favorite; “skin-to-skin” stickers; acrylic paintings; and birth-themed affirmation cards for coloring, which have been hung in hospital rooms during delivery.

Shawnita Sealy-Jefferson: Exploring the Possible Connections Between Housing Instability and Preterm Birth

Where you live matters. It can shape how much health care you get, its quality, and whether you breathe clean air, lead paint, or dangerous fumes. In cities such as San Francisco, pregnant people who experience housing insecurity—whether they are homeless, live in transitional lodging or shelters, or public housing—are more likely to experience preterm birth than others who live in standard or more stable housing.

(Courtesy of Shawnita Sealy-Jefferson)

Ohio State professor Shawnita Sealy-Jefferson understands this. As an epidemiologist interested in how racism and inequality affect health, she wondered whether this decade’s housing crisis played a role in preterm birth. She reviewed previous research about housing and birth outcomes, noting a 2015 study that found neighborhoods where more residents were late paying their taxes also had higher rates of preterm birth, low infant birth weight, and infant death.

She turned to Detroit, where so many foreclosures—many of them due to illegal and artificially inflated property assessments—followed the Great Recession that some pundits called it an eviction “conveyor belt.”

She told Rewire.News via email that the Midwestern city was an “ideal place to study neighborhood effects on adverse health outcomes given the striking racial residential segregation, urban blight, and economic disinvestment, combined with the extreme racial disparities in preterm birth in this area. An increasing body of literature suggests that residential segregation is a fundamental (or root) cause of racial disparities in health because African Americans are more likely to reside in disadvantaged neighborhoods (with concentrated poverty, disinvestment of resources, and infrastructure decay) than whites.”

Residential segregation has been particularly persistent in so-called Chocolate Cities, such as Detroit, with large populations of Black residents and intense racial and economic stratification.

Co-written by Dawn Misra and published in the International Journal of Environmental and Public Health Research earlier this year, her study found that living in a neighborhood with many tax foreclosures might be associated with more risk of giving birth early. But there was a caveat. That connection seemed to apply only to Black women with less education. Those with higher education—especially those who had earned more than a high-school diploma—didn’t seem to be affected.

Sealy-Jefferson, who attended graduate school in Michigan, said there’s not one answer as to why education may protect women who live in blighted neighborhoods. They might have more resources to counter the effects of residence in a distressed location. Perhaps women with more schooling are more likely to follow instructions and recommendations for a healthy pregnancy. Education also often functions as a socioeconomic variable; they may have more money, better jobs, or access to insurance. And, finally, she noted, economically struggling neighborhoods may be targets for gentrification; people who live in such an area may be newcomers and not exposed to any long-term effects of residence.

As almost always happens, a study leads to more questions. It’s not clear how education and neighborhood interact to affect preterm birth, but Sealy-Jefferson is committed to more research that interrogates how place shapes health. 

“I’m interested in producing scholarship that shows that the ways in which our society is organized to privilege some and disadvantage others matters for the risk of adverse birth outcomes among African American women,” she said. “I would suggest that public health researchers who study underserved and historically marginalized populations find, support, and mentor trainees from these communities and amplify the voices of these community members, in terms of what really matters for their risk of poor health.”

“Only then will we have novel research questions that give important insights on what truly matters for the health and well-being of these high-risk populations,” Sealy-Jefferson added. “From here, we will be able to design intervention studies that actually achieve health equity. We have had too much health disparities research focused on clinical, behavioral, and biologic factors and not enough emphasis on the structural and institutional racism that is killing people every day. We have to always be led by social justice because that’s our moral imperative in public health.”

The Republican Takeover of the Federal Courts Should Terrify You

The Republican Party’s takeover of the federal judiciary is almost complete.

The strategy, executed to near-perfection by Senate Republicans like Mitch McConnell and Chuck Grassley, was simple: Stall as many nominees chosen by President Barack Obama as possible. Then, by either disregarding or outright changing the Senate rules governing the confirmation process, rush through President Donald Trump’s nominees.

So far, that strategy has worked. Trump has already appointed two Supreme Court justices—though one of those appointments was rightfully Obama’s—along with a fifth of the sitting circuit court of appeals judges. Now, Republicans have set their sights on the district courts. There are more than 100 vacancies left, and monied interests are champing at the bit to handpick Trump’s nominations to fill them.

At the beginning of the month, McConnell invoked the “nuclear option” to permanently limit the amount of time senators can debate most nominees from 30 hours to just two. The change doesn’t apply to Supreme Court nominees or circuit court nominees but will allow Republicans to advance district court nominees at lightning speed. And the result will likely be disastrous for progressive causes.

District court judges are on the front lines of federal court litigation. They are the trial judges who decide, for example, whether anti-choice restrictions designed to close abortion clinics can be allowed to take effect while those restrictions are challenged in court. A district court judge issues factual findings in litigation that circuit courts consider on appeal. This latest move by McConnell all but ensures that judges hostile to causes like voting rights, reproductive rights, and LGBTQ equality will help shape the law around those issues.

Trump commented on the phenomenon last March, seemingly confused as to how he got so lucky.

“When I got in, we had over 100 federal judges that weren’t appointed. I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?” Trump asked.

“It was like the gift from heaven. We were left judges,” Trump continued. “They are the ones that judge all your disputes. They judge on what’s fair on the environment and what’s not fair. Where they’re going to take your farms and factories away and where they’re not.”

It wasn’t a gift from heaven, however. It was a gift from McConnell and Grassley—who, after Republicans wrestled control of the Senate from Democrats in 2014, immediately ground to a halt Obama’s efforts to confirm judicial nominees to make way for the next Republican president. That president turned out to be Trump.

Alliance for Justice, a progressive judicial advocacy group, analyzed the devastating impact Trump has already had on the federal judiciary in a recent report. It’s terrifying. Most of Trump’s picks are white men committed to the destruction of federal agencies, the disenfranchisement of people of color and other reliably Democratic voters, the rollback of consumers’ right to hold corporations accountable when they harm people, and the decimation of civil and human rights—including the right to abortion care. And many of them are incompetent: In fact, Trump has nominated more judges deemed “unqualified” by the American Bar Association than any other president at this stage in their administration.

If that doesn’t scare you, it should.

Some data should put it into perspective. As of April 1, 2019, more than 75 percent of Trump’s nominees were men and more than 90 percent were white. By contrast, 58 percent of Obama’s nominees were men, and 64 percent were white.

Trump has appointed around a third of the judges on the conservative Fifth, Seventh, and Eighth Circuits. He’s on the verge of flipping the reliably liberal Ninth Circuit. The Third and 11th Circuits were both majority-Democrat until Trump. Now the majority of the judges on the Third Circuit are Republican; the Eleventh Circuit is evenly split between Democrats and Republicans.

You may be thinking to yourself, “So what? It is expected that Republicans will appoint conservative jurists, while Democrats will appoint more liberal jurists.”

The problem isn’t just that Trump is appointing conservative judges. It’s that he’s appointing conservative judges who are handpicked and vetted by the Federalist Society, which Meagan Hatcher-Mays describes as “a shadowy conservative group that mobilized in the years after the Supreme Court’s historic decision in Roe v. Wade.”

“The organization grooms law students to become hardliner anti-choice judges who oppose reproductive rights and the social safety net but support wholesale deregulation and unfettered personhood rights for corporations,” Hatcher-Mays continues. “These are not neutral judges who ‘follow the law’ or umpires who call ‘balls and strikes,’ as they frequently claim in their confirmation hearings. They are partisan hacks who are hand-selected by billionaires to stand in the way of progress.”

In other words, these are judges who oppose progressive values as a matter of principle. There’s no adherence to the rule of law, only adherence to the monied interests that control the appointment process.

The Sixth Circuit Court of Appeals is a perfect example of Trump’s effect on the courts. Once considered a center-right circuit, the Sixth Circuit has, thanks to Trump appointments, swung hard in the conservative direction. The Sixth Circuit is the court that recently ruled in Planned Parenthood of Greater Ohio v. Hodges that the state of Ohio could refuse to provide public money to Planned Parenthood to pay for health-care programs unrelated to abortion.

The district court blocked the law in August 2016. A three-judge panel of the Sixth Circuit upheld that ruling in April 2018. But on March 12 of this year, the full court ruled 11-6 to reverse it—with Trump appointees providing four of those 11 votes.

Writing for the majority, George W. Bush appointee Jeffrey Sutton ruled, remarkably, that abortion providers do not have a due process right to perform abortions, ignoring that the rights of abortion providers are and have always been derivative of the rights of their patients. (A pregnant person’s due process right to an abortion means nothing if there’s no provider to perform it, and courts have repeatedly recognized that.) Trump appointees Amul Thapar, John K. Bush, John B. Nalbandian, and Joan Larsen, of course, sided with the majority. Eric Murphy, who was not yet installed on the court, would almost surely have sided with the majority; after all, as Ohio’s attorney general, he argued before the Sixth Circuit on behalf of the law. Chad Readler, confirmed on March 6, would have undoubtedly done the same.

And earlier this month, Trump loyalist John K. Bush wrote the decision reversing a lower court ruling blocking Kentucky’s forced ultrasound law, HB 2. The reasoning behind Bush’s decision is so garbled that Judge Bernice Bouie Donald declared, “I dissent!” Not “I respectfully dissent,” which is usually how judges phrase their dissents as a matter of decorum. Just “I dissent!” Exclamation mark.

But it hasn’t stopped there. Trump’s appointees to the Sixth Circuit have advanced regressive right-wing arguments and causes in multiple respects.

Eric Murphy derided Sonia Sotomayor’s epic dissent in Utah v. Strieff, according to an Alliance for Justice nominee report. In that dissent, Sotomayor connected the Court’s ruling—that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violations of a person’s Fourth Amendment rights—to larger issues regarding overpolicing of communities of color. Murphy criticized Sotomayor for focusing too much on racial justice, according to the report, and noted that the defendant in the case was white. He also defended in a brief to the Supreme Court Ohio’s prohibition on same-sex marriage in Obergefell v. Hodges, and joined an amicus brief backing the Gloucester County School Board in Gavin Grimm’s lawsuit challenging his high school’s policy prohibiting him from using the bathroom that aligns with his gender identity.

Chad Readler, meanwhile, argued in favor of some of the Trump administration’s worst policies when he was acting head of the U.S. Department of Justice Civil Division: He defended the administration’s efforts to prohibit undocumented pregnant minors from obtaining abortion care; Trump’s child separation policy and the indefinite detention of migrant children; the denial of food and showers for detained migrants; and Trump’s transgender military ban. If all that’s not bad enough, he has also written in favor of the death penalty for 16- and 17-year old children.

John K. Bush—who wrote the decision upholding Kentucky’s ultrasound law—has compared abortion to slavery (abortion is nothing like slavery); has criticized the State Department for its decision to modify passport application forms to account for same-sex parents; and has cited websites on his blog that have promoted conspiracy theories about Obama being born in Africa.

Joan Larsen has voiced her objection to Lawrence v. Texas (the landmark case striking down sodomy laws) and criticized the DOJ for not defending the constitutionality of the Defense of Marriage Act. John B. Nalbandian defended Indiana’s discriminatory voter ID law in an amicus brief to the Supreme Court and acted to restrict voting rights in Ohio. And Amul Thapar rejected a worker’s same-sex harassment and retaliation claims, arguing that the victim must be required to produce “credible evidence” of the harasser’s sexual orientation.

The Sixth Circuit should serve as an indicator of what’s to come for the federal district courts.

McConnell is seemingly on a mission to reshape the judiciary for a generation. He’s already moving quickly: At the end of Obama’s first two years, the Senate Judiciary Committee had confirmed two Supreme Court justices and 16 appellate judges. By the end of Trump’s first two years, after McConnell famously refused to allow a vote on Merrick Garland—Obama’s pick to replace Antonin Scalia—the committee confirmed Neil Gorsuch to take Scalia’s place and then Brett Kavanaugh in a confirmation process that was fraught with irregularities. As for appellate judges, the committee had confirmed 30 loyalists by the end of Trump’s first two years. As of April 1, that number has risen to 37.

Even if Trump only lasts one term, the damage he has done to the federal judiciary is practically irreversible. These judges, many of whom are young and wildly unqualified, have been appointed to the bench for life barring an extremely rare impeachment. Unlike many of the regressive policies that Trump has implemented via executive order, these appointments cannot be otherwise undone. And that’s something we will have to live with for a generation.

Legislative Lowlights: Tennessee GOP Clears the Way to Outlaw Abortion If ‘Roe’ Falls

Rewire.News tracks anti-choice and anti-LGBTQ legislation as it works its way through state legislatures. Here’s an overview of the bills we’re watching.

The Tennessee General Assembly is advancing a measure that would make Tennessee the seventh state to have a “trigger law” on the books criminalizing abortion if Roe v. Wade falls; Republican lawmakers in Illinois want to ban gender-affirming surgery coverage from the state’s Medicaid program; and more unconstitutional abortion bans—a “heartbeat bill” and a ban on the most common method of second-trimester abortion—were signed into law.

Alabama

State Sen. Gerald Allen (R-Tuscaloosa) on Thursday introduced SB 272, which would prohibit the state from funding a person or entity that performs, induces, refers, or counsels in favor of abortion care. The measure would prohibit the state from distributing grants to any affiliate of an abortion provider. The bill is based on copycat legislation drafted by Chris Sevier—an ex-lawyer turned electronic dance music producer—who is known for filing frivolous lawsuits in state and federal courts in an attempt to undermine LGBTQ rights. Sevier has authored several pieces of legislation targeting abortion and same-sex marriage by associating them with the religion of secular humanism. While SB 272 doesn’t include any secular humanism language, it’s nearly identical to the rest of the language found in anti-choice secular humanism measures being considered in Kansas, Oklahoma, Rhode Island, and Tennessee.

The measure is pending in the state senate governmental affairs committee.

Arkansas

The Arkansas General Assembly passed the “Perinatal Palliative Care Information Act” last Monday. The measure would require informed consent for abortion to include perinatal palliative care information for patients carrying a fetus with a life-threatening anomaly. A physician who fails to provide the information prior to an abortion would have their medical license revoked. Three Democratic lawmakers joined Republicans to pass the measure in a 29-5 vote: state Sens. Eddie Cheatham (D-Crossett), Bruce Maloch (D-Magnolia), and Larry Teague (D-Nashville).

The measure is awaiting gubernatorial approval.

Republican Gov. Asa Hutchinson signed SB 278 into law last week. The measure increases the state’s medically unnecessary waiting period before abortion care from 48 to 72 hours. Five states (Missouri, North Carolina, Oklahoma, South Dakota, and Utah) require abortion patients to wait three days after their initial consultation before obtaining an abortion. The Arkansas measure requires abortion facilities be located within 30 miles of a hospital that provides gynecological or surgical services, and requires physicians to report on abortions that result in a live birth.

Hutchinson has signed several anti-choice measures into law this session: an 18-week abortion ban, a “trigger law” criminalizing abortion if Roe v. Wade falls, a ban on abortion if the physician believes the pregnant patient is seeking it due to a fetal Down syndrome diagnosis, a medication abortion “reversal” law, an abortion complication reporting measure, a state funding ban on certain types of research involving human embryos, and a measure establishing certain qualifications for physicians who perform abortions.

SB 278 will take effect in July.

Illinois

The Illinois Department of Healthcare and Family Services this month announced the state’s Medicaid program will soon provide gender-affirming surgery coverage for some transgender adults. Under the proposed rules, Medicaid members who are at least 21 years old and have been diagnosed with gender dysphoria would be eligible for genital and breast-related surgeries. The policy hasn’t yet been finalized, but Republican lawmakers are already trying to kill it. State Rep. Darren Bailey (R-Louisville) on Thursday introduced HB 3831, which would stop the state’s Medicaid program from providing coverage for gender-affirming surgery. It’s the second anti-transgender bill to be considered this year in the state legislature. The other measure—HB 3515—would prohibit doctors from providing transgender minors with transition-related health care.

Both measures are pending in the state house rules committee.

Montana

The GOP-dominated Montana legislature last week passed SB 100, which would require abortion providers to inform patients of the opportunity to view ultrasound images of the fetus and listen to the fetal heart tone prior to an abortion. A person who performs or attempts to perform an abortion without informing their patients of the opportunity would face a $1,000 fine. The bill—which passed the state senate in February—passed the state house Thursday in a 58-41 vote. Democratic state Rep. Jonathan Windy Boy (D-Box Elder) joined Republicans to pass the bill.

SB 100 nows heads to Democratic Gov. Steve Bullock, who has not indicated whether he will sign it into law.

The state house judiciary committee on Thursday advanced SB 354, which would make it a felony to deny “medically appropriate and reasonable medical care” to infants born after a failed abortion. The “Born-Alive Infant Protection Act” copies legislation drafted by Americans United for Life (AUL) and is based on the myth that doctors murder newborns delivered alive during an abortion. The bill—which cleared the state senate this month—passed its second reading in the state house on Monday.

The measure’s final reading and possible vote is scheduled for April 16.

The state senate judiciary committee on Thursday approved a measure to ban abortion after 20 weeks. Except in cases of medical emergency, HB 500 would prohibit physicians from performing or inducing an abortion without first determining the probable gestational age of the fetus. It would be a felony to perform an abortion once a fetus has been determined to be at 20 weeks’ gestation. The so-called Pain-Capable Unborn Child Protection Act is based on copycat legislation drafted by the National Right to Life Committee (NRLC), and it employs junk science that falsely claims a fetus can feel pain at 20 weeks. A nearly identical ban was struck down last week in North Carolina.

The measure—which passed the state house in March—is now pending in the full state senate.

North Carolina

The state senate on Monday passed SB 359, which would require doctors and nurses to protect and care for children born alive after a failed abortion. A health-care practitioner who fails to provide the appropriate degree of care to a child born alive would face felony charges. Any person who intentionally performs or attempts to perform an overt act that kills a child born alive would be punished for murder. It bears repeating—this type of legislation is based on a myth and only serves to vilify reproductive health-care providers. Two Democrats joined Republicans to pass the measure in a 28-19 vote: state Sens. Ben Clark (D-Hoke) and Don Davis (D-Greene).

The measure is scheduled for a floor debate in the state house on Tuesday.

North Dakota

Republican Gov. Doug Burgum signed HB 1546 into law, a measure which bans the most common method of second-trimester abortion. Except in cases of medical emergency, it would be a felony—punishable by up to five years in prison—to perform a D and E abortion. The legislation contains a provision that delays the law from taking effect until a federal appeals court or the U.S. Supreme Court allows its enforcement. Mississippi and West Virginia prohibit the procedure, but similar bans have been blocked or temporarily enjoined by courts in eight states. A similar ban is awaiting signature in Indiana.

Ohio

Republican Gov. Mike DeWine signed SB 23 into law on Thursday, banning abortion as early as six weeks into a pregnancy, before many people know they’re pregnant. The measure requires a physician performing an abortion to first determine if the fetus has a detectable heartbeat. Except when necessary to prevent serious injury or death of the pregnant person, abortion is prohibited if the fetus has a detectable heartbeat. A physician who performs an abortion in violation of the law would be charged with a felony—punishable by up to a year in prison. Legislators in 15 states have introduced “heartbeat bans” this session. Ohio is the fourth state this year (after Georgia, Kentucky, and Mississippi) to pass the near total abortion ban. The measure in Georgia is awaiting signature. The measures in Kentucky and Mississippi are already facing legal challenges. Similar bans have been blocked in Arkansas and North Dakota.

The ACLU of Ohio is planning to file a legal challenge against the law, which is scheduled to take effect in July.

Pennsylvania

State Rep. Kate Klunk (R-Hanover) on Monday introduced HB 321, a measure to prohibit abortion if it’s being sought because the fetus has been diagnosed with Down syndrome. Anyone who violates this provision would be charged with a felony of third degree—punishable by three-and-a-half to seven years in prison. A physician who performs an abortion in violation of the law would also be guilty of “unprofessional conduct” and may lose their medical license. The bill includes exceptions for medical emergencies and pregnancies that are the result of rape or incest. Similar bans have been signed into law this year in Arkansas and Utah. This type of legislation—which attempts to pit reproductive rights against the rights of those with disabilities—has been blocked by courts in Indiana and Ohio.

The measure—with 86 sponsors—has been referred to the state house health committee. Pennsylvania Gov. Tom Wolf (D) has vetoed many anti-choice bills that have passed the Republican-held legislature.

Tennessee

In a 66-24 vote, the state house last Monday passed the “Life Appropriation Act,” which would prohibit the state from funding a person or entity that performs, induces, refers, or counsels in favor of abortion care. The bill—drafted by the aforementioned Chris Sevier—argues that the state can’t fund abortion since abortion is “inseparably linked” to the religion of secular humanism. The Tennessee bill clarifies that it would only become operative if the federal government allows a state agency to deny family planning funds to an organization that performs abortions, which the Trump administration is poised to do with its Title X restrictions.

The measure was transferred on Thursday to the state senate and passed on its first consideration. The bill still needs to pass through committee before a full state senate vote.

The state senate judiciary committee last Tuesday approved SB 127, which would trigger a statewide abortion ban if the U.S. Supreme Court overturns Roe v. Wade. The bill would make it a Class C felony—punishable by up to 15 years in prison—to perform or attempt to perform an abortion. The Tennessee state house last week revived the bill’s companion, HB 1490, which had failed to pass out of a subcommittee in March. That bill will now skip reconsideration in the house subcommittee and go straight to consideration in the full health committee. Six states (Arkansas, Kentucky, Louisiana, Mississippi, South Dakota, and North Dakota) have “trigger laws” on the books that would criminalize abortion should conservatives on the U.S. Supreme Court strike down Roe v. Wade.

SB 127 now heads to the state senate floor, while HB 1490 has a committee hearing scheduled April 16.

Texas

The state senate last Tuesday passed SB 23, which would require physicians to provide medically appropriate and reasonable life-saving and life-sustaining medical care and treatment to anyone born alive after an abortion. Measures like SB 23 are based on the anti-choice myth that fetuses often survive attempted abortions. A physician who fails to provide the necessary treatment would face up to ten years in prison and a $100,000 fine. Two Democratic lawmakers joined Republicans to pass the measure in a 21-10 vote: state Sens. Eddie Lucio (D-Brownsville) and Judith Zaffirini (D-Laredo).

The measure now heads to the state house for consideration.

In Anti-Choice Hands, Abortion Clinic Inspections Become a Weapon

Like many gynecological offices, Falls Church Healthcare Center in Virginia offers a range of services from annual wellness exams to Pap smears and contraceptives. The center also provides abortion care, which means that since 2011, when the state of Virginia introduced new regulations, it has needed a facility license to operate.

Although abortion care is extremely safe in the United States, it is regulated to a different degree than other health care. If it were a dermatologist’s office, the Falls Church Healthcare Center wouldn’t need a facility license. Not only is it medically unnecessary, but the license is redundant, given that other medical bodies already oversee the abortion clinic’s equipment and staff.

But doctors or health professionals didn’t develop the licensing requirement; politicians did. And as part of that licensing requirement, inspectors from the Virginia Department of Health can visit the Falls Church Healthcare Center at any time, without notice. This is true of abortion clinics in at least 22 other states, according to the Policy Surveillance Program at Temple University.

In interviews with Rewire.News, abortion care providers operating in those states said inspectors often focus on minor cosmetic issues, administrative errors, and other minutiae. They also said the inspections can take up a tremendous amount of time and paperwork; in most cases, the inspections don’t lead to increased patient safety.

When Virginia inspectors visit the Falls Church Healthcare Center, ostensibly to make sure the facility is safe for patients, they don’t examine everything with the same degree of scrutiny, according to Rosemary Codding, the center’s founder and policy director.

“They’re looking at, let’s say, the medical equipment that would be used in patient care,” Codding told Rewire.News. “So we have one cabinet in one of the [procedure] rooms. There’s a cabinet that has the sterile trays and that kind of thing for abortion care. Then there’s another cabinet that has sterile trays set up for colposcopies. They open the first cabinet and look at that, and they go to the next cabinet, and they ask, ‘Is this for abortion care?’” If the medical equipment isn’t used for abortion, “they close the cabinet and don’t look at that,” Codding said.

Click for large image.

Most critically, the anti-choice movement has used the inspections, and the resulting reports, as a political tool to target abortion providers with false claims of unsafe practices. Part of an age-old tactic of fear mongering, anti-abortion activists routinely use words like “violation” and “fail” to describe minor deficiencies, making some administrative errors look like gross violations of patient safety.

In some cases, state health officials use these inspections to restrict access to abortion care.

For over a year, Whole Woman’s Health has been trying to open a new facility in South Bend, Indiana, a state that has seen many abortion clinics close in the wake of anti-choice laws. There are only six abortion clinics left in the state, and none in South Bend. While sparring with state regulators over minor details in its license application, Whole Woman’s Health has been hit with a flood of negative articles in anti-choice publications falsely stating that its other locations are riddled with health and safety violations. The clinic applied for a facility license 18 months ago but has yet to receive one.

The clinic has now asked a federal court for emergency relief from Indiana’s licensing requirements, arguing that the state has unnecessarily delayed the organization’s request for a license to operate the clinic in South Bend. “It has become apparent that officials at the Department of Health have a political agenda and have no intention of granting us a license,” Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, said in a statement.

The state’s attorney general is backing the health department, arguing that licensing requirements are necessary for patient safety. In court documents filed this week, the attorney general also claimed the state’s delays are warranted because “several surveys indicate” that other Whole Woman’s Health clinics have “violated numerous health codes,” a reference to the inspection reports.

“When I started in the field almost 30 years ago, there wasn’t abortion clinic licensing like there is now,” Hagstrom Miller told Rewire.News. “Facility licensing started in the ‘90s. It wasn’t that all of a sudden, abortion got more complex. It was a political strategy.”

Even without facility licenses, abortion providers still answer to other regulatory bodies. Most medical practices are regulated by the professional associations or accreditation organizations that set standards for patient health and safety in a given field. For abortion providers, these include the National Abortion Federation (NAF) and the American College of Obstetricians and Gynecologists (ACOG). The doctors and nurses who work at abortion clinics are licensed, and the government regulates the laboratory equipment they use.

“Health care is incredibly regulated,” said Sarah Roberts, DrPH, an associate professor at the University of California, San Francisco, who studies abortion restrictions. However, as a result of anti-abortion legislation, many state health departments now find themselves in a position of “enforcing regulations passed by the legislature that don’t necessarily have a public health purpose,” Roberts said.

“What’s weird here is that one particular type of facility is being singled out without any evidence to say that is warranted.”

Using “Violations” to Demonize Abortion Clinics

Despite the demands that licensing requirements put on them, the providers who spoke with Rewire.News said they do their best to comply with health and safety inspections because they don’t want to do anything that would put the clinics, or patients, at risk. “We take our inspections and the regulations very seriously … even if we don’t agree they improve patient care,” said Kim Chiz, executive director of Allentown Women’s Center in Bethlehem, Pennsylvania.

“The issue is the way that the deficiencies are communicated and how they can be taken out of context.”

Kimberly Beazley, deputy director of the Office of Licensure and Certification at the Virginia Department of Health, said “a survey report and plan of correction are only published after they are considered acceptable and the survey is finalized.”

In other words, clinics have already addressed any deficiencies that are cited in these inspection reports.

Finished inspection reports are publicly available through Freedom of Information Act (FOIA) requests, and all of the abortion providers who spoke to Rewire.News for this story believe they should be public. The problem, they say, is that the reports are often weaponized.

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In framing state inspection reports as evidence of “violations” at abortion clinics, anti-abortion groups can demonize clinics while giving political ammunition to those who believe the clinics are not regulated enough. In Texas, Republican lawmakers recently introduced a bill that would make clinic license applications public, making providers even more vulnerable to harassment by anti-abortion activists that target clinics themselves. For example, activists might use a clinic’s address to intimidate a landlord or lobby against the clinic before it even opens, according to Anjali Salvador, staff attorney at the ACLU of Texas. In Maryland, activists a few years ago harassed longtime owners of two abortion clinics in the state until they broke down and sold the buildings, causing the clinics to close.

Activists in Texas have already obtained copies of the inspection reports even before clinics added their plan of correction. Publishing these versions makes it seem as though the clinic has done nothing to fix the problem.

“What they’re giving you is only half the conversation,” said Hagstrom Miller. “For them to show a report without a plan of correction is political.”

Abby Johnson, a former Planned Parenthood clinic director, has been a driving force behind the mischaracterization of clinic inspection reports with her anti-abortion nonprofit, And Then There Were None. Johnson’s memoir was recently made into an anti-abortion film.

In 2018, Johnson founded CheckMyClinic.org, a database of clinic inspection reports that purports to educate patients but in reality paints a skewed picture of clinic safety.

Visitors on CheckMyClinic.Org can search by state and find pages for nearly every abortion clinic in the country with lists of that facility’s “health violations.” In fact, the “violations” they cite are not actually called violations by health inspectors. “We use the term deficiency as opposed to violation,” Beazley said.

“A violation means the health department has concluded you are endangering the life and safety of somebody,” Hagstrom Miller said.

A patient might read on CheckMyClinic that Whole Woman’s Health in Austin had a “repeat violation” of a “narcotics count discrepancy.” With many communities in the United States currently suffering from an opioid crisis, a narcotics “violation” is enough to raise an alarm.

In reality, the clinic was cited for two deficiencies for minor errors. In the first, a clerical error led to a 1ml discrepancy in the clinic’s fentanyl count, which was immediately corrected. The second deficiency was cited because staff members had not properly logged an extra 1ml of midazolam found in a larger vial. According to the clinic’s inspection report, the 1ml could easily be accounted for by the fact that suppliers typically fill multi-use drug vials with a little bit extra liquid to account for the spillage when nurses fill syringes and push out a few drops to make sure there are no air bubbles. To fix the deficiency, the clinic instructed staff members to simply note that in the logs.

“The regulation they cite makes it sound like we’re mishandling narcotics, when actually the manufacturer has an extra ml in there on purpose,” Hagstrom Miller said.

Abortion care providers in three states—Virginia, Texas, and Indiana—have brought lawsuits to challenge state licensing requirements, among other restrictions on abortion clinics they believe are unconstitutional following the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. According to the lawsuit brought in Virginia (in which Whole Woman’s Health and Falls Church Healthcare are both plaintiffs), one clinic was “cited for a deficiency when its staff physician had water spots on his lab coat.”

Another clinic said it had been inspected as much as three times in one year, even though the regulations only require inspections of abortion clinics at least once every two years.

“The Outcomes for Our Patients Aren’t Improved”

Jennifer Groves is the executive director of Cherry Hill Women’s Center in New Jersey and Philadelphia Women’s Center in Pennsylvania, both states with licensing requirements.

Groves said many of the inspectors who visit her abortion facilities don’t fully understand how abortion works and how it’s regulated. In the Philadelphia clinic, after a volunteer re-painted the walls of the center, Groves said an inspector grilled her about whether she had asked the health department for permission before painting, something she isn’t required to do. “Which doctor’s office would have to do that?” she said to Rewire.News.

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Some inspectors seem to feel personally uneasy with abortion, making the inspection process even more difficult than it already is, Groves told Rewire.News. “I’ve had inspectors who refused to go into the clinic and made me grab all of the paperwork we have and put it in a conference room next door,” she said.

Groves previously worked in the hospital at the University of Pennsylvania, where part of her job involved complying with inspections by the Joint Commission, the nonprofit regulatory body that inspects hospitals. “It was intense,” she said of the commission’s hospital inspections, “but nowhere near as intense as the abortion clinic inspections I’ve participated in.”

The time clinic staff have to spend preparing for and complying with state health department inspections takes resources away from patients, according to the providers who spoke to Rewire.News.

“In states where there is this kind of onerous regulation, my staff start to feel like they’re practicing for the regulations,” Hagstrom Miller said. “In Minnesota, we don’t have clinic licensing. Our complication rate, our infection rate, our quality scores, it’s all the same. The outcomes for our patients aren’t improved in states where we have clinic inspections.”

The Very Reverend Katherine Ragsdale, interim president and CEO of NAF, said she has “no doubt” that this is true.

NAF conducts routine quality assurance checks of its members, which are independent abortion clinics across the country. The organization doesn’t track data that would compare clinics in licensing states to those in non-licensing states, but Ragsdale said she’s never noticed any difference in care.

“Our members are going to be providing quality care regardless of whether they’re in a regulated state or not,” she told Rewire.News. “Unless they’re in a state so regulated that they’re not providing any kind of care, because they can’t get a license.”