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‘This Fight Has Existential Stakes’: How a Court Ruling Has Thrown Kansas Abortion Laws Into Flux

Both pro-choice advocates and their opponents in Kansas are determining how best to proceed in the wake of the Kansas Supreme Court’s ruling declaring abortion a fundamental right protected by the state’s constitution.

The ruling could have far-reaching effects on the state’s anti-choice laws, even as some anti-choice activists in Kansas continue to push a “fetal personhood” constitutional amendment that would wipe out any chance to improve access to abortion care in the state.

In April, the high court struck down a law banning the most common form of second-trimester abortion care, finding that the Kansas Constitution protects the right to personal autonomy and that includes the choice to have an abortion.

The court’s decision means abortion restrictions must be evaluated more stringently than the undue burden standard used at the federal level. And it means the right to an abortion in Kansas is protected even if Roe v. Wade is overturned by conservative justices on the U.S. Supreme Court.

“The ruling that abortion is a fundamental right in Kansas protects abortion even more strongly [than] Roe v. Wade, which is promising, especially in an era when it looks like the [U.S.] Supreme Court is set to undermine or overturn that ruling,” said Elise Higgins, vice president of the Kansas Abortion Fund, which provides financial and logistical support to Kansans seeking abortion care.

The ruling has prompted abortion opponents to call for amending the state constitution—though they are divided on the best strategy. Some groups are pushing for a so-called personhood amendment that would grant constitutional rights to fertilized eggs, while others want to amend the state constitution to specify it does not include the right to abortion.

“What the personhood amendment says is that we recognize the humanity of the unborn child from their earliest biological beginning,” Bruce Garren, chairman of Personhood Kansas, said at a legislative committee hearing in October. The state’s leading anti-choice group, Kansans For Life, has pushed back against a “personhood” amendment in support of a more incremental approach, the Associated Press reported.

“We’re interested in making a difference, and not just a statement,” Jeanne Gawdun, director of government relations with Kansans for Life, said at the hearing.

Anti-choice groups are concerned the Kansas Supreme Court’s ruling will undo years of anti-choice laws in place. But because Kansas courts have not yet had the opportunity to review current laws under the strict scrutiny standard the ruling’s implications are not yet clear, said Rachel Sweet, regional director of public policy and organizing at Planned Parenthood Great Plains.

“Our opposition is saying is that this is going to put every abortion law in jeopardy, and frankly we just don’t know yet,” Sweet told Rewire.News. “It will take years to figure out what the actual, real impacts of this decision are.”

While no one can say for certain how existing anti-choice laws will be affected, Higgins said the ruling could shape the outcome of a case challenging targeted regulations of abortion providers, or TRAP laws. SB 36, passed by Kansas Republican legislators in 2011, imposed onerous licensing requirements on abortion facilities, such as specific dimensions of rooms and hallways. TRAP laws are designed to make compliance so difficult that many abortion clinics shut down.

The law was swiftly challenged and enjoined, so it has never been in effect in Kansas. But because its regulations would shut down at least one abortion facility in Kansas, it likely won’t hold up under the strict scrutiny standard set by the Kansas Supreme Court, Higgins said. As of 2017, Kansas had four facilities providing abortion services, according to the Guttmacher Institute.

“Because the law is explicitly intended to shut down an abortion provider, it negatively affects abortion access in a way that would be contrary to the ruling that everyone has the right to bodily autonomy,” Higgins told Rewire.News.

The strict scrutiny standard seems to offer a path to undo some of the state’s abortion restrictions, which include state-mandated counseling intended to dissuade patients from getting an abortion; a forced 24-hour waiting period; parental consent for minors; and a prohibition on private insurance companies covering abortion outside life endangerment circumstances, unless an individual spends more money on an optional rider. But pro-choice advocates say they are are more concerned with stopping a constitutional amendment than overturning current laws.

“If a constitutional amendment passes saying there’s no right to abortion, then the minute Roe v. Wade is undermined or overturned, people in Kansas will lose their right to abortion, period,” Higgins said. “This fight has existential stakes.”

Republicans introduced a “personhood” amendment in January, but the bill did not advance out of committee. A similar measure failed to pass in 2017. So-called personhood measures have been rejected by voters in several states, including Colorado, where a “personhood” ballot initiative has failed multiple times.

Amending the state constitution requires a two-thirds majority in both the state house and senate before the issue can go on the ballot for a statewide vote. Though Kansas has a Democratic governor, the GOP still holds large majorities in both chambers, with 84 of 125 seats in the house and 28 of 40 seats in the state senate.

In May, Republican lawmakers failed by a single vote to override Gov. Laura Kelly’s (D) veto of a bill requiring doctors tell patients that medication abortion can be reversed, a claim that has not been verified by the medical and scientific communities. The same two-thirds majority needed to sustain a veto would be needed to approve a constitutional amendment.

“It’s real close,” Sweet said. “We’ve done it. I think we can do it again, but it’s not easy.”

In ‘Highway of Tears,’ a Missed Chance to Hold White Journalists Accountable

“No one knows who the first Indigenous girl or woman to vanish along the highway between Prince Rupert and Prince George was or when it happened,” writes Jessica McDiarmid in her new book, drawing much-needed attention to the issue of missing and murdered Indigenous women.

According to the New York Times, the Royal Canadian Mounted Police (RCMP) reports that 18 women disappeared or were found murdered along Highway 16 in British Columbia between 1969 and 2006. The 450-mile road runs through several remote Native communities. Community activists and members maintain the number of missing women is closer to 50.

In Highway of Tears: A True Story of Racism, Indifference and the Pursuit of Justice for Missing and Murdered Indigenous Women and Girls, McDiarmid describes the lives of several of these women.

Unlike many other white journalists writing for mainstream outlets, McDiarmid does not dwell on the stories’ gory details. Nor does she resort to describing Native women’s lives through a reductionist lens. Rather, she gives victims and their families the sort of attention typically reserved for middle-class white victims.

Although most of the women and girls were poor, and some were involved in risky behavior such as drinking or using drugs, McDiarmid’s writing helps depict them as complex humans, loved and missed by family. She fails, however, to truly account for the failure among mainstream journalists to recognize missing and murdered Indigenous women as an ongoing crisis.

The fact is that it has been open season on Indigenous women in the United States and Canada for more than 200 years. I am an Indigenous woman: a citizen of the Ojibwe tribe of Wisconsin. Like my mother and grandmother, and likely generations of my women ancestors, I’ve been sexually assaulted, usually by white men. The men attacked us knowing that they were unlikely to face consequences for their crimes. Even if we dared to report them to law enforcement, their actions would be dismissed as youthful exuberance: minor faults of solid, contributing members of the white community. As Native women, we hardly figured as human in the men’s worldview. We were spoils for the victors.

According to the only RCMP report ever produced, there were around 1,200 missing and murdered Indigenous women in Canada between 1980 and 2012; according to the Native Women’s Association of Canada, however, the number could be as high as 4,000.

As researchers including Sarah Deer, professor of women, gender, and sexuality studies at the University of Kansas, explained to me for a 2010 article at The Progressive, “Indian women have been viewed as legitimate and deserving targets for sexual violence since the earliest days of colonization. Raping Indian women has essentially been a right of conquest.”

So I can’t entirely hide my exasperation over the complacent manner in which white journalists like McDiarmid announce their discovery of the issue of missing and murdered Indigenous women as though it is a recent epidemic. The real epidemic is the criminal way in which this crisis has been historically overlooked. If mainstream white journalists cover sexual violence against or murders of Indigenous women at all, they frequently include descriptions of victims’ risky behavior as somehow inviting violence—when those actions, such as sex work or hitchhiking, are often the only means for survival for the poor. Mainstream journalists seem to reserve their shock and horror over violence for the so-called true innocents: victims like themselves from white, middle-class families.

Were it not for Native families and activists’ relentless crusade via social media, mainstream journalists would likely still be covering this issue as they always have: relying on institution-to-institution communication and dismissing community concerns as unsubstantiated rumors.

Although McDiarmid gives some attention to this disparity in media coverage, she fails to truly hold her colleagues’ feet to the fire. She should interrogate the institutional racism typified by the white male perspective that defines what is considered “legitimate” news among mainstream journalism outlets.

In her extensive description of Indigenous families’ and activists’ struggle to gain the ears and attention of government, police, and press, McDiarmid devotes too much space to white fragility in a seeming attempt at fairness: She allows RCMP investigators and leaders to insist that they conducted a thorough review of the cases. She lays out police officers’ historic lack of access to resources, their sincere desire to solve crimes, and the government’s support for further inquiry. McDiarmid writes of the police’s challenges in determining whether the murders and disappearances are connected to one person. Like many middle-class white people, she cannot seem to bring herself to believe that violence against Indigenous women isn’t necessarily connected to a monstrous random serial killer. She fails to interrogate the deep, colonialist underpinnings of settler entitlement that has created an environment in which Indigenous women are legitimate targets of sexual violence.

McDiarmid does a laudable job of calling attention to the systemic causes of these crimes, such as Canada’s colonial history of theft and exploitation of Indigenous lands with little thought to the welfare of the people there. She describes the shortcomings of Project E-Pana—an RCMP investigative effort that ultimately spent a lot of money but produced few results—and the beleaguered National Inquiry into Missing and Murdered Indigenous Women and Girls, which failed to focus on inadequate police procedures.

Unfortunately, she gives only brief mention to the continued dearth of public transportation along the Highway of Tears. It is this sort of basic infrastructure failure that has been found to contribute to the issue. Women and girls are still forced to hitchhike to activities and medical appointments. According to the CBC, lack of transportation continues to be a “gaping wound” in northern British Columbia.

I began writing about the historic sexual violence toward Indigenous women in 2010; in 2016, I published a series about missing and murdered Indigenous women in the United States for Rewire.News. Since then, not a month passes without a white journalist contacting me in search of sources for their own stories on this topic.

On the positive side, McDiarmid’s book represents the beginnings of settler awakenings to the contemporary human cost of historic policies—at least, I hope so. But I remain disturbed, overall, by my colleagues’ unexamined enthusiasm in using Indigenous peoples’ reliable despair as a career opportunity to be mined for personal gain. This is an issue of life and death: one that demands bold, giant steps away from the salacious details of poverty and violence.

Trump Administration Backs Off Immigrant Abortion Fight at Supreme Court

The Trump administration has backed away from a fight at the Roberts Court over a policy that effectively bars any unaccompanied pregnant minor in its custody from obtaining an abortion. The U.S. Department of Justice (DOJ) on Friday declined to file a petition to have the Court review an appeals court decision blocking the policy while a lawsuit challenging it proceeds. 

Two years ago, the Trump administration set off a legal firestorm when it instituted a policy effectively barring any unaccompanied pregnant minor in its custody from obtaining an abortion. In March 2017, the Office of Refugee Resettlement (ORR), a division of the U.S. Department of Health and Human Services (HHS), announced that shelters contracting with the government “are prohibited from taking any action that facilitates an abortion without direction and approval from the Director of ORR,” then anti-choice advocate Scott Lloyd. The Trump administration reportedly selected Lloyd to drive federal policy at the ORR that reproductive rights advocates described as “anti-choice fanaticism” that is “part Handmaid’s Tale, part Nazi doctor.” According to court documents, Lloyd denied every abortion request presented to him during his tenure as head of ORR, including instances where a pregnancy resulted from rape.

Shortly after the policy took effect, the American Civil Liberties Union (ACLU) filed an emergency federal lawsuit on behalf of Jane Doe, an undocumented minor in government custody whom the Trump administration was denying access to an abortion, despite a court order ruling Doe could have one. Doe’s fight made its way through the federal courts, and she ultimately had an abortion. But this didn’t happen without then-D.C. Circuit Judge Brett Kavanaugh, now a Supreme Court justice, siding with the Trump administration in a dissenting opinion. Kavanaugh wanted to let the clock run out on Doe’s ability to obtain an abortion, and described efforts by her attorneys to comply with the judicial bypass that granted her abortion as facilitating “immediate abortion on demand.”

The Trump administration was so angry about the fact that Doe ultimately got the abortion she needed that Solicitor General Noel Francisco took the unprecedented step and asked the Roberts Court to sanction Doe’s attorneys for, basically, representing Doe’s interests and securing for her the care that she needed.

The Roberts Court declined Francisco’s request. But that didn’t end the fight over ORR’s policy.

While the ACLU litigated Doe’s case, it learned of other undocumented minors in government custody who had also been blocked from accessing abortion care. The ACLU sued on behalf of those minors as well and in 2018 won certification of the challenge as a class-action. In June 2019, a different panel of D.C. Circuit judges affirmed the lower court ruling certifying the class of plaintiffs and blocking ORR’s policy.

“The policy functions as an across-the-board ban on access to abortion,” the court wrote. “It does not matter if an unaccompanied minor meets all the requirements to obtain an abortion under the law of the state where she is held—including, for instance, demonstrating she is mature enough to decide on her own whether to terminate her pregnancy. Nor does it matter if she secures her own funding and transportation for the procedure. It does not even matter if her pregnancy results from rape. Regardless, the government denies her access to an abortion.” 

It seemed all but certain the Trump administration would take its fight back to the Roberts Court, having asked twice for an extension to file its petition for review. Also, with Kavanaugh now on the Court, the administration had all but secured a ruling in its favor absent a recusal from Kavanaugh. But on Friday that deadline passed with no request from the DOJ for the Roberts Court to weigh in on both the constitutionality of the administration’s policy and the decision the certify the challenge to it as a class-action. This means the D.C. Circuit Court of Appeals decision affirming the injunction blocking the program stands while the ACLU battles in the lower court for an order striking the policy as unconstitutional for good. 

It’s unclear why the administration would twice signal an intent to ask the Roberts Court to intervene only to back away at the last minute. It is unlike this administration to shy away from a Supreme Court fight over its most draconian and unconstitutional policies. Perhaps the department is stretched thin, given the sheer volume of cases against it challenging one unlawful administration policy after another. Maybe it simply decided its resources were better spent defending the policy in the lower court at this time?

Or perhaps the DOJ was worried the Roberts Court would decline to take the case, what with it already having one high-profile abortion rights challenge on this term’s docket. A denial from the nation’s highest court would not only leave the appellate decision in place but could create the appearance that the Roberts Court disapproved of the policy—revealing potential cracks in the appearance of a unified conservative block opposed to abortion rights. Either option is plausible with this administration.

But, ultimately, the reason why the administration chose to back away from a Supreme Court fight doesn’t really matter. What matters is the administration’s blatantly unconstitutional policy remains blocked, and undocumented pregnant minors in government custody can access the abortion care they need. 

The Many, Many Reasons a Federal Judge Blocked Trump’s ‘Conscience’ Rule

A federal judge in the Southern District of New York threw out the U.S. Department of Health and Human Services’ (HHS) “conscience” rule last week in a victory for reproductive and LGBTQ rights.

The rule, finalized in May, would have allowed both individual workers and health-care entities to refuse to provide care based on their moral or religious objections. It was sweeping, allowing providers the right to refuse not only health care but any health-related services, such as medical studies and research activities. The rule, which was scheduled to go into effect November 22, would have allowed discrimination based on gender and gender expression and drastically reduced access to reproductive health care, particularly in rural areas where small clinics could be unable to afford duplicate staff to cover employee refusals.

Judge Paul Engelmayer wrote in his opinion that HHS had acted “arbitrarily and capriciously” in imposing its conscience rule by failing to offer sufficient justification for issuing it. The judge characterized the rule as violating federal law in “numerous, fundamental, and far-reaching” ways.

Engelmayer held that HHS had exceeded its authority in promulgating the rule. The administration tried to get around this problem by arguing that the conscience rule was not actually a major policy shift, but merely a “housekeeping matter” that “clarifies … preexisting conscience protections enacted by Congress.”

That matters because, when it comes to issuing rules, federal agencies only have the power that Congress gives them. For an agency to create and impose a rule, Congress has to grant them authority via a statute to do so. But the court found HHS wasn’t given any power by Congress to make a broad rule allowing health-care workers to refuse to provide treatment.

The court dismissed HHS’ argument since the rule “would shape the primary conduct of participants throughout the health care industry” and “upend the legal status quo” if it were implemented.

Next, the judge held that the rule’s definition of a “health-care entity” was too broad. Previous conscience-related laws—such as a provision prohibiting discrimination against entities that refuse to provide assisted suicide—covered physicians, other health-care professionals, hospitals, and “any other kind of health care facility, organization, or plan.” But here, without any new authority from Congress, HHS expanded that definition to cover pharmacists, medical laboratories, and organizations that do medical research.

At oral argument, HHS’ lawyer agreed that it had expanded the scope of health-care employees covered by the rule. Under existing law, people providing direct care, like nurses, have the ability in certain situations to refuse treatment when they had religious objections; employees removed from actual medical care had no such rights.

The new rule, the court wrote, would have applied to “a hospital or clinic receptionist responsible for scheduling appointments, and to an elevator operator or ambulance driver responsible for taking a patient to an appointment or procedure.” In other words, it would have comprehensively decreased access to health care for LGBTQ individuals and people seeking reproductive care if anyone at the health-care provider objected—no matter how far removed the employee was from the actual provision of medical care. Worse, an objecting employee could disrupt health care by refusing to perform activities that help support the procedure to which they object—even when those activities take place on a different day entirely.

Engelmayer also took issue with the rule’s lack of an “undue hardship” clause, which requires employers to offer accommodations only when doing so poses no more than a trivial cost.

By eliminating the hardship clause, HHS eradicated the concept of a “reasonable accommodation”—for example, transferring an employee who objected to performing certain procedures to a unit that wasn’t involved in those procedures. Under the rule, employees would have been free to demand an “effective accommodation”—one that the employee accepts, rather than one that is reasonable. In other words,  an employee could have simply insisted they don’t want to be moved to any other department. The only accommodation that is truly appropriate under the rule is one the refusing employee likes, not one that the employer reasonably believes removes the employee from the situation that makes them uncomfortable.

The rule’s refusal to acknowledge undue hardship put it on a collision course with Title VII, a law that protects employees from discrimination based on religion and already provided a limited framework for conscience objections. Under Title VII, an employee can request a reasonable accommodation, not an effective accommodation, and the organization can avoid liability for a refusal to reassign an employee if the cost was too high. The conscience rule wiped that out.

Relatedly, the court held that the rule presented a potential hardship peculiar to rural reproductive health clinics. If an employee at a small clinic objected to the clinic performing abortions and refused to take on a different assignment, the clinic could only solve that issue by hiring duplicate staff. It’s unlikely that smaller or more rural clinics have the financial means to hire duplicate staff to simply wait around for work in the event an employee refused an assignment.

Increased staff costs weren’t the only financial issue with the conscience rule. The government estimated that implementation would cost employers and the government a total of around $1 billion over the first five years, including costs for retraining employees, revising procedures, updating subcontractor agreements, and investigating complaints.

Moreover, the rule gave HHS the right to terminate funding to health-care facilities over a single rule violation. The judge gave an example of a state hospital transferring a receptionist who refused to schedule an abortion into a different department, despite the employee not consenting to the transfer. That would constitute a rule violation and, according to the judge, the state could lose all its federal health-care funding—including Medicaid funding. For New York, the judge wrote, that loss would be $46.9 billion.

The court found that the conscience rule also ran afoul of the Emergency Medical Treatment and Labor Act, which requires emergency departments receiving federal funds to provide emergency care to anyone who needs it—with no exceptions for refusal of care based on religion. The conscience rule would have added that exception, even though a federal agency can’t create an exception to a statute through the regulatory process.

The creation of this exception could result in horrifying consequences—like the situation discussed in oral arguments, in which an ambulance driver, upon learning a patient was being transported to a hospital for an ectopic pregnancy, might simply stop driving the patient if they objected to the necessary life-saving procedure. Given that untreated ectopic pregnancies can cause serious, or even fatal, consequences, such a refusal is deeply immoral.

HHS told the court that emergency providers could simply double staff to ensure adequate coverage if employees raised objections, but the court called that a “non-starter,” since emergency providers may lack the funds and in an emergency patients “may not have time to wait to be referred to another physician or healthcare professional.”

Finally, the court dismissed the justification that HHS had offered for the rule’s existence. HHS said, when it created the rule, that there had been a “significant increase” in complaints alleging violations of conscience provisions since Trump had been elected: 34 complaints between November 2016 and January 2018, and then 343 complaints during fiscal year 2018.

During the litigation, HHS was forced to admit that “only a tiny fraction of the complaints that its Rule invoked as support were even relevant” to the conscience provisions. Nearly 80 percent were objections to vaccinations, which are outside the scope of the conscience objections. Twenty-two of the remaining complaints were duplicates, and 49 were irrelevant to the conscience provisions for various other reasons. A mere 6 percent of the non-duplicate complaints were potentially related to conscience objections—and even HHS admitted that very few of the complaints it had cited were relevant. “This conceded fact is fatal to the stated justification for the Rule,” the judge wrote.

Engelmayer’s ruling isn’t the only blow to the conscience rule. Judge Stanley Bastian of the Eastern District of Washington announced from the bench on Thursday that he was vacating the rule. Washington Attorney General Bob Ferguson (D), who had challenged the rule, said it would have “disproportionately harmed rural and working poor Washington families, who have no alternatives to their local health care providers, as well as LGBTQ individuals, who already face discrimination when they seek medical care.”

Another case against the rule is still pending in the U.S. District Court for the Northern District of California. There, Lambda Legal made arguments similar to the ones made in the Southern District of New York. It said that HHS acted in an arbitrary and capricious action when it didn’t consider the rule’s effect on patients and the health-care system, and that the rule violates patient privacy rights and the First Amendment.

The Trump administration sought to enshrine discrimination in medical care, but the courts are refusing to let them. Still, HHS will likely appeal both the New York and the Washington decisions. This could be a long battle.

Did David Daleiden Know He Was Breaking the Law With His Anti-Choice Smear Campaign?

Years after anti-choice activist David Daleiden launched a smear campaign against Planned Parenthood with covertly recorded videos, the anti-choice activist inadvertently indicated during a civil trial on October 31 that he had known his undercover activities were illegal.

The October 31 admission in San Francisco federal court was a blow for the defense, whose case hinges on proving Daleiden and his co-defendants believed that by going undercover, they would find evidence of Planned Parenthood officials committing suspected felonies and would therefore be exempt from legal liability in California.

Daleiden and co-defendant Sandra Merritt went to abortion-care conferences in California in 2014 and 2015 posing as employees of a fake fetal tissue procurement company and secretly taped conversations with Planned Parenthood abortion providers. Daleiden later released deceptively edited propaganda videos through his anti-choice front group, the Center for Medical Progress (CMP), which is also a defendant in the case. The videos falsely accused Planned Parenthood of trafficking fetal tissue. The videos resulted in some of Planned Parenthood staff being placed under around-the-clock armed security after receiving death threats.

Republican lawmakers on the state and federal level used the deceptively edited videos as pretext to attack funding for Planned Parenthood, launching investigations across the country that eventually showed no wrongdoing on the part of the reproductive health-care organization.

To dodge legal liability for secret recordings, a defendant must prove they had, according to California law, a “reasonable [belief]” before the first recording was made that people being recorded had committed or intended to commit violent felonies. The defendants say their “research” led them to suspect Planned Parenthood of infanticide and medical battery against patients seeking abortion care in order to obtain and sell fetal tissue to researchers. Those claims have been debunked.

Daleiden testified last month that he first became suspicious about Planned Parenthood in summer 2010, when he came across “whistleblower” claims made by Dean Alberty in 2000 in congressional testimony and in a concurrent interview on ABC’s 20/20. Alberty was a fetal tissue procurement technician who had been employed by two biomedical firms.

According to Daleiden’s testimony, Alberty claimed to have seen late-term fetuses delivered alive and killed for their organs at the Planned Parenthood facility where he worked. Alberty had also claimed he saw Planned Parenthood doctors illegally alter abortion procedures to obtain more valuable organs to sell to biomedical companies, including his own. Alberty later recanted these accusations.

In the television segment, played in court October 22, Alberty admits to accepting $10,000 to be an informant for an anti-choice group while still employed as a procurement technician. “I will stand by my words until the day I die,” Alberty told then-ABC correspondent Chris Wallace as to why viewers should believe him.

Alberty was rebuked by a Republican congressman in March 2000 during a U.S. House of Representatives committee hearing on the allegations. 

On the stand, Daleiden said his extensive research in 2010 had unearthed no answer as to what had become of Alberty’s claims. “It looked like there had been zero follow-up whatsoever,” Daleiden said. “It looked like it needed an even bigger exposé.”

“That information affected me very, very strongly, and I was very convinced that the issue of fetal trafficking needed to be followed up on,” Daleiden said.

But it was not until October 31, after a weeklong trial break, that jurors learned Alberty’s claims had been debunked, and that Daleiden had known this in 2010.

Under questioning by Planned Parenthood attorney Rhonda Trotter, Daleiden said he knew Alberty had signed a sworn affidavit recanting the claims. He qualified his admission by testifying that Alberty had been “induced” into recanting his statements. He did not say why he believed this.

Presiding U.S. District Judge William Orrick III declined Planned Parenthood’s request to admit into evidence news articles between 2000 and 2002 reporting that the U.S. Department of Justice (DOJ) had decided not to prosecute Alberty’s former boss over his claims. Planned Parenthood had sought to use the articles to rebut Daleiden’s testimony that he had conducted extensive research into the veracity of Alberty’s claims before launching his  so-called undercover investigation.

Planned Parenthood says the release of the deceptively edited CMP videos coincided with an increase in violence at its clinics, culminating in a November 2015 shooting at its Colorado Springs facility, where three people were killed.

Orrick declined the request on the basis that Daleiden hadn’t seen the articles because they had been pulled from a legal subscription service he had no access to during his research. Daleiden said he had conducted his research using public tools like Google.

But Orrick’s decision was not a setback for Planned Parenthood. Earlier in his cross-examination, Daleiden acknowledged he had known in 2010 about the DOJ’s decision based on the congressional transcript.

“You knew from the congressional transcript that this matter was referred to the FBI and the Department of Justice” Trotter said.

“I do remember a referral,” Daleiden replied.

“And that DOJ publicly stated that they looked into the matter back in 2000,” Trotter said.

“To my knowledge, there had been no follow-up … for ten years,” Daleiden replied.

‘Your Ongoing Testimony … Was False’ 

Daleiden’s admission capped a disastrous round of testimony for the defense. On October 4, co-defendant Sandra Merritt seemingly was caught lying on the stand. Merritt testified that security had not stopped her as she walked through the abortion-provider conference, filming undercover, and up to her hotel room without her name badge. She said another undercover anti-choice activist had picked up Merritt’s badge from a nearby table and given it to her, and Merritt had put it in her purse.

Merritt’s testimony appeared to corroborate footage of her walk through the conference recorded by her hidden camera and helped establish a key defense argument: that the defendants aren’t liable for the covert recordings because the abortion care conferences they infiltrated were held in public places.

Merritt’s attorney Horatio Mihet, of the conservative group Liberty Counsel, played the footage in court. But after Planned Parenthood noted a discrepancy between the footage and the testimony, Orrick allowed Planned Parenthood’s attorneys to recall Merritt to the stand the following week.

During that second day of testimony, Planned Parenthood attorney Sharon Mayo played a longer version of Mihet’s clip. It showed Merritt had been wearing her name badge throughout her time at the conference.

After watching the footage, Merritt admitted the badge in her purse had actually belonged to the other activist, who had given it to her because she was leaving. Merritt explained she had no “independent recollection” of the event and had testified it was her badge based on the footage Mihet had played.

“All you had to do, you and your lawyer, was look at the 15 previous seconds to see that was not true,” Mayo said.

“Your ongoing testimony about your badge being in your purse was false,” Mayo said, adding, “no one stopped you, Mrs. Merritt, because you were wearing your own lanyard.”

While the defendants claim they went undercover to expose violent crime, Planned Parenthood says they intended to smear and shut down the reproductive health-care provider, long a target of anti-choice lawmakers and activists. CMP records penned by Daleiden and read aloud in court indicate Daleiden hoped to “ignite public outrage at Planned Parenthood” and “permanently destroy” its reputation.

Abortion providers appearing in the smear videos became the target of death threats. Planned Parenthood says the release of the videos coincided with an increase in violence at its clinics, culminating in a November 2015 shooting at its Colorado Springs facility, where three people were killed. The gunman repeated talking points from those videos.

The head of a Northern California fetal tissue procurement company who appeared in one of the videos received death threats. She has been identified only as Doe 12 in concurrent California criminal proceedings against Daleiden and Merritt, and Rewire.News is withholding her name for safety reasons.

In 2016, Doe 12 told a federal court that her security guards had caught cars surveilling her house and photographers in the trees around it. Three years later, the harassment against Doe 12 allegedly continues. During a September preliminary hearing in San Francisco Superior Court, Doe 12 claimed she was targeted in retaliation for her testimony in a road rage incident.

A decision as to whether that case will advance to a jury trial is expected later this month. Daleiden and Merritt face felony invasion of privacy charges over the recordings and face prison time.

Democrats Are About to Lose the Federal Courts for a Lifetime

Republicans hit a new milestone in their campaign to capture the federal courts for a lifetime. President Trump has now appointed over 150 judges to the bench, including one-quarter of all judges on federal courts of appeals.

Let that number really sink in: One in four seats on federal courts of appeals is now held by a Trump appointee.

These judges will decide on all manner of issues, from the constitutionality of near-total or total abortion bans, to the legality of efforts to divert federal family planning dollars to religiously affiliated clinics that do not offer contraception and abortion, to attempts to carve out for religious conservatives exceptions from civil rights laws that would allow them to discriminate against LGBTQ people. Unsurprisingly, these appointees are all conservative ideologues and mostly white men who will leave their mark on federal jurisprudence for generations.

It’s a thought so depressing it’s easy to fall into despair. If Democrats don’t do something, anything, to thwart the Republican takeover of the federal judiciary, the civil rights gains we’ve spent decades securing could be wiped out within one presidential administration.

In fact, Trump appointees are already establishing dangerous precedents for reproductive rights and justice. Judge David Stras on the Eighth Circuit Court of Appeals was the deciding vote to uphold a federal manslaughter indictment against a South Dakota woman for drug use while pregnant that prosecutors allege caused her newborn to die hours after birth. It was the first time the federal courts had ever greenlit such a prosecution, and it came at a time when the Trump administration announced it would be restarting federal executions.

Trump is on track to have more judges confirmed in 2019 than in 2017 and 2018 combined. Those appointments have successfully flipped the Third Circuit Court of Appeals from a Democratic-appointed majority to a Republican one. It is all but certain that the Second Circuit and Eleventh Circuit courts will also flip to Republican-appointed majorities by the end of the year.

And, remember those extreme abortion bans passed in Alabama, Kentucky, and Ohio? Legal challenges to those laws will eventually be heard by the freshly Trumpified Sixth and Eleventh Circuits.

“This is really fantastic,” Trump said Wednesday of the combined efforts to control the federal courts. He then punctuated the sentiment by releasing the names of seven new appointees that the Senate will consider later this year.

Republicans in Congress couldn’t be giddier. “You had been helped enormously by a decision that I made—and these guys will back me up—not to let President Obama fill that Scalia vacancy on the way out the door,” Senate Majority Leader Mitch McConnell (R-KY) told President Trump to a room full of supporters and press during a Republican victory lap on the courts Wednesday, according to the New York Times.

McConnell is actually being humble here. Trump has benefitted from a lot more than McConnell’s refusal to hold hearings on a U.S. Supreme Court nominee in 2016, which was a violation of every political norm at the time. Trump is reaping the rewards of a decade of Republican obstructionism of Democratic nominees—led by McConnell, but with a heavy assist from Sen. Chuck Grassley (R-IA). Republicans refused to move on nearly all of President Obama’s judicial nominees, thereby creating an artificial vacancy crisis in the courts that Republicans jumped to fill the minute they won the White House.

What’s worse (if it can get any worse), is that Republicans have shown they don’t care about the integrity of the federal courts. They care about a consolidation of power. Take, for example, the fact that no president has nominated more judges deemed “unqualified” by the nonpartisan American Bar Association (ABA) than Trump. The Republican response? To attack the ABA for alleged bias.

Republicans have backed Trump appointees in almost lock-step in order to secure their control of the federal courts. So even when the administration nominates someone like Steven Menashi, who has flirted with ethnonationalism in his writings and was instrumental in shaping an illegal loan forgiveness program advanced by Secretary of Education Betsy DeVos, Republicans failed to stand for ethics over party by refusing to advance the nomination. Or when the president nominates a man credibly accused of sexual harassment and assault to the Supreme Court and protesters show up in the thousands demanding a different nominee, the most Republicans offered was a collective shrug while they voted to confirm Brett Kavanaugh to the Court.

What can we do now, exactly?

Democrats face a stark choice when it comes to the federal courts: Put forward and aggressively pursue court reform for 2020 and beyond, or try and craft policy in the aftermath of the flood of conservative legal thinking these appointments will produce. Some advocates have suggested turning to state courts as a means to protect and enforce civil rights now that Republicans all but own the federal courts. Not surprisingly, conservatives have their sights set on capturing state courts too.

Frankly, I don’t have any good answers to the problem we face with the federal courts, and when Democratic presidential candidates insist on advancing hagiography around partisans like retired Supreme Court Justice Anthony Kennedy, I don’t have a ton of hope. It seems unlikely that, should Democrats win in 2020, they’ll advance ideas bold enough to fix some of this mess.

But giving up isn’t an option, not when men like Menashi, who is only 40, are about to be elevated to a lifetime appointment, and when Republicans have announced they will not rest until they’ve filled every open seat on the bench. I also know that giving up isn’t an option with so many rights on the line.

Democrats slept on the courts as an electoral issue in 2016. They can’t afford to do so again in 2020.

Jeff Sessions Wants to Be a Senator Again

Jeff Sessions, President Trump’s disgraced former attorney general, announced he will run in 2020 for his old seat representing Alabama in the U.S. Senate.

The announcement came Thursday evening in a campaign video in which Sessions praises the president. Though he resigned from the U.S. Department of Justice (DOJ) last November amid pressure from Trump Sessions says “the president is doing a great job for America” and that Trump has his “strong support.”

Sessions was one of Trump’s earliest supporters in Congress, where he was a hardline anti-choice advocate. When Trump announced in November 2016 he would nominate Sessions as attorney general, the anti-choice organization National Right to Life praised the decision, citing the Alabama lawmaker’s record. “Throughout his tenure in the United States Senate, which began in 1997, Jeff Sessions has a 100% pro-life voting record,” the organization said in a press release. “He has opposed all of President Obama’s nominees to the U.S. Supreme Court.”

Sessions co-sponsored dozens of anti-choice measures in the Senate, including efforts to codify the Hyde Amendment’s discriminatory ban on federal funding for abortion care and to ban abortion 20 weeks into a pregnancy.

Reproductive health and rights advocates opposed Sessions’ nomination to the DOJ, citing his record. In testimony submitted to the Senate Judiciary Committee, Vicki Saporta, then-president and CEO of the National Abortion Federation, said Sessions had “repeatedly voted to reject an amendment put forth by Senator Charles Schumer to the Bankruptcy Reform Act, which would prevent violent perpetrators of crimes against abortion providers and clinics from evading charges levied against them by filing for bankruptcy.”

He was among the senators who encouraged the DOJ and U.S. Department of Health and Human Services in 2015 to investigate allegations against Planned Parenthood made by anti-choice front group Center for Medical Progress, Saporta noted in her testimony.

Civil rights groups also opposed Sessions’ nomination to the DOJ. He resigned in November 2018—but not before he used his office to undermine LGBTQ rights.

The Alabama Senate race is shaping up to be a competitive election in 2020. Sen. Doug Jones, a pro-choice Democrat running for reelection, is considered especially vulnerable in a state that voted overwhelmingly for Trump in 2016.

“GOP opponents are expected to highlight Jones’ support of abortion rights—in a state where voters put anti-abortion language in the state Constitution and lawmakers are attempting to ban abortion outright—and his opposition to some of Trump’s judicial nominees,” the Associated Press reported in September.

Jones joined the Senate after winning a 2017 special election to fill Sessions’ seat. He narrowly defeated Republican Roy Moore, who made his anti-choice views and record a key part of his platform.

Sessions will face a crowded field in the Republican primary, including Moore. The Alabama primary is scheduled for March 3.

A New Abortion Ban Makes Its Way to Congress for the First Time

Congressional Republicans introduced a set of bills last week that would ban abortion “on the basis of Down syndrome,” arguing that they’re standing up for people with disabilities. But pro-choice and disability rights advocates say these “reason” bans—which target the reason a pregnant person seeks an abortion—don’t actually address the discrimination people with disabilities face, and instead create dangerous barriers to care.

The “Down Syndrome Discrimination by Abortion Prohibition Act,” was introduced by Sen. Jim Inhofe (R-OK) in the U.S. Senate as S 2745 and by Rep. Ron Estes (R-KS) as HR 4903 in the U.S. House of Representatives. The bills are seemingly the first federal attempt to ban abortions on the basis of a prenatal diagnosis of Down syndrome, according to Elizabeth Nash, senior state issues manager at the Guttmacher Institute.

The bills would ban doctors from “knowingly perform[ing] an abortion being sought because the baby has or may have Down syndrome,” according to a press release on Inhofe’s website. Physicians could face a fine and/or up to five years in prison if they perform an abortion knowing that the reason is based on a test result or prenatal diagnosis of Down syndrome.

The bills also state that “if the doctor does not know whether Down syndrome is a contributing factor,” the doctor must first ask a pregnant person if they are “aware of any test results indicating that the child has Down syndrome,” and then inform them of the ban. If a doctor fails to do so before performing an abortion, they would also face a fine and/or up to five years in prison.

Pro-choice advocates say that bans like S 2745 and HR 4903 will create dangerous situations in hospitals and exam rooms. In 2017, Ohio passed a similar ban, which was recently blocked by a federal judge. Kellie Copeland, executive director of NARAL Pro-Choice Ohio, told Rewire.News the bill would make the patient “feel like they have to keep the circumstances of their pregnancy a secret .… There’s just no scenario where creating that environment between a doctor and a patient is a good idea.”

Copeland said that when Ohio’s bill was debated on the floor of the state legislature, lawmakers offered amendments that would improve services for families with children with Down syndrome, but they were all tabled. “The proponents of [Ohio’s bill] claim that this was to prevent discrimination against people with Down syndrome, or those families,” she said. But, like most other abortion restrictions, Copeland said Ohio’s law is about “finding a way to eliminate abortion access in as many instances as possible.”

Neither the National Down Syndrome Society (NDSS) nor the National Down Syndrome Congress took a position on Ohio’s bill, according to NPR, and both declined Rewire.News’ request for comment on the federal bill. Down syndrome advocacy groups “didn’t ask to be put in the middle of this debate or to be politicized,” Copeland said.

In fact, most Down syndrome advocacy groups are “pro-information,” which means they support laws that encourage or mandate that physicians give accurate, evidence-based information to people who receive a prenatal or postnatal Down syndrome diagnosis.

Jen Jacobs, executive director of the Down Syndrome Diagnosis Network (DSDN), told Rewire.News that the organization also does not have an official stance on abortion bans. DSDN focuses on “ensuring that families who are getting a new diagnosis are getting accurate, current information along with it at the same time, because we’re finding that that just does not happen,” Jacobs said. Providers often give pregnant people and families outdated information about Down syndrome, or they focus entirely on the medical aspect of the condition and not on the social implications or the “bigger picture,” she said.

As a result, pro-information groups like NDSS pushed Congress to pass the Prenatally and Postnatally Diagnosed Conditions Awareness Act in 2008 to try to address some of these issues. It was supposed to “increase the readiness of accurate, up-to-date and balanced information about Down syndrome to women and families considering prenatal testing,” according to NDSS’ website. But after Congress passed it, the law “was never funded and, in the absence of funding, advocates in several states have taken up the issue with their state legislatures.”

Jacobs noted that there’s no evidence that the federal ban introduced last week would help pregnant people who receive a prenatal Down syndrome diagnosis. “I think the intent behind it is to help be a more inclusive society, and to recognize that there are people with disabilities in our society and that all of those things are a natural part of life,” Jacobs said. “I just am not sure that it’s making the bridge to getting all of that really good information to families when they get a new diagnosis.”

Copeland went further, saying “reason” bans don’t provide services to children with disabilities or their families, but they also open up another avenue lawmakers can use to chip away at abortion access. She said Ohio’s law and the new federal versions might be the first in a “wave of bills” focused on the reason someone is getting an abortion.

“I am concerned that this then opens them up to add all sorts of other reasons, or to require patients to disclose why,” Copeland said. “They haven’t gone to that extent yet, but certainly this I think opens the door to that.”

It’s unlikely that the federal bills will pass in the House given the chamber’s Democratic majority, but the bill received some indirect support from President Trump at the start of October for Down Syndrome Awareness Month. He stated in his presidential message: “We must devote our efforts to ensure that the United States continues to exhibit reverence for human life—both born and unborn.” He also said his administration is dedicated to fostering opportunities for people with Down syndrome, but he didn’t specify how he would accomplish that.

Campaign Week in Review: ‘Reproductive Freedom Has Won’ in Tuesday’s Elections

Join Rewire.News for a weekly look at how reproductive health, rights, and justice issues are popping up on the 2020 campaign trail.

Abortion Rights Groups Declare Victory After Tuesday’s Elections

Democrats scored major victories across the country in this week’s elections, flipping control of the Virginia General Assembly and scoring an apparent victory in Kentucky’s gubernatorial race. Pro-choice advocates lauded the wins as monumental for reproductive rights.

“Reproductive freedom has won the day,” said Kelley Robinson, executive director of Planned Parenthood Votes, of the election results. “Voters made their voices heard loud and clear that when politicians fail to stand up for our rights—including abortion access—we will take that fight straight to the ballot box.”

“In a southern, traditionally red state, Andy Beshear ran a campaign that addressed abortion access head-on, vowing to protect Kentucky residents’ constitutional rights in the face of the Trump administration’s assault on Roe v. Wade,” Andrea Miller, president of the National Institute for Reproductive Health (NIRH) Action Fund, said in a statement. “ In defeating [Matt] Bevin, Kentuckians have made clear that they are ready to fight for every person’s right to make their own decisions about their bodies, lives, and futures. As we head into the 2020 campaign season, I urge candidates to look toward Kentucky as a reminder of the passionate support for abortion access in all corners of the United States.”

Kentucky’s race for governor was considered crucial for abortion access. The state is home to a single abortion clinic, and its current governor, Republican Matt Bevin, has sought to make sure that number drops to zero. Pro-choice Democrat Andy Beshear is the apparent winner in the race, and his campaign has declared victory. But Bevin, who trails Beshear by roughly 5,000 votes, refused to concede and formally requested a recanvass. Given that some leaders in the state’s GOP-held state legislature have signaled they may get involved, this race is still worth keeping an eye on. The recanvass is set for November 14, according to Secretary of State Alison Grimes (D).

Virginia Democrats’ decisive victory in Tuesday’s elections hands the party a trifecta capable of passing liberal priorities previously held back by GOP legislators. That could include codifying Roe v. Wade (Democratic Gov. Ralph Northam said on the campaign trail in 2017 that he supported an amendment to the state’s constitution to safeguard abortion rights), undoing the state’s forced 24-hour waiting period for abortion, and other efforts to safeguard and expand access to reproductive health care.

Reproductive rights aren’t the only big issue that may see a shift after Tuesday’s elections—Medicaid expansion eligibility, gun control, and the ratification of the Equal Rights Amendment may all now see movement.

Beto O’Rourke Dropped His Criminal Justice Platform—Then He Dropped Out of the Race

Former U.S. Rep. Beto O’Rourke dropped out of the race for the Democratic presidential nomination last week. “Though it is difficult to accept, it is clear to me now that this campaign does not have the means to move forward successfully,” he said in a post on Medium. O’Rourke listed some of what he considered the highlights of his campaign, including his plan to address climate change and taking what he called “the boldest approach to gun safety in American history.”

O’Rourke’s departure from the race came a few days after he released his criminal justice platform in a post to Medium. His “Comprehensive Plan to End Mass Incarceration and Reform Our Criminal Justice System to Prioritize Rehabilitation” didn’t contain a section devoted specifically to reproductive rights, but it did include a vow to end “the deprivation of health care in prison.” He also promised he would enforce the First Step Act’s ban on shackling pregnant people and its requirement that the Bureau of Prisons provide menstrual products to incarcerated people.

As Vaidya Gullapalli explained in a piece for the Appeal, an independent news outlet focused on criminal justice issues, O’Rourke’s plan “reflects a public consensus among the field of Democratic presidential candidates that the scourge of mass incarceration must end and the pressure to announce ambitious plans in response.”

“What remains to be seen is how much of a priority criminal justice will be for the candidates beyond the primary,” wrote Gullapalli.

The release of O’Rourke’s criminal justice platform followed plans from other 2020 Democratic presidential candidates, including former U.S. Housing and Urban Development Secretary Julián Castro. Castro’s plan promised to address reproductive justice for the incarcerated including “requiring free access to reproductive health care.”

What Else We’re Reading

“Abortion Is Not a Losing Issue. Yesterday’s Election Proved It,” writes Bridget Read for the Cut.

Castro’s presidential campaign “will fire its staff in New Hampshire and South Carolina,” Politico reported on Monday.

Sen. Elizabeth Warren (D-MA) said she would undo a Trump administration policy banning transgender people from serving in the military “on the first day of [her] presidency.”

Sen. Kamala Harris (D-CA) has a new bill addressing the gap between when schools close and when parents get out of work.

2020 Democratic presidential candidate Andrew Yang spoke with LGBTQ Nation about how he would get the Equality Act through a Republican filibuster, and it is …. something.

“Single-Payer Advocates Are Being Drawn Into the Wrong Debate,” argues Libby Watson for the New Republic.

Sen. Jeanne Shaheen (D-NH) will face “an anti-abortion foe in 2020” the New Hampshire Union Leader reported.

Jed Duggar, a reality TV show star from 19 Kids and Counting, is running for a seat in the Arkansas State House of Representatives—and he’s already highlighting his anti-choice platform.