Why I Won’t Stay Silent Anymore

Frances Kissling

By upholding the federal abortion ban, the U.S. Supreme Court has injected rigid Catholic teaching into law. That's a crime against the Constitution and women.

Republished with permission from Salon.com.

I spent my final 10 years at Catholics for a Free Choice refusing to take press calls about the "partial-birth" abortion ban. It seemed a no-win proposition. Rational arguments about protecting women's health, preventing tragic births when the infant's brief life would be filled with unbearable pain, and the doctor's need to decide what type of abortion would be safest for her patient were simply too abstract to compete with even a measured and accurate description of what happens during this procedure, known medically as an intact dilation and extraction (D&X) abortion. The 20-plus-week fetus' physical resemblance to a baby was the debate closer.

Even staunch pro-choice legislators had trouble when they looked at visuals of the D&X procedure. The late Catholic Sen. Daniel Moynihan first voted against banning it in 1995 and then voted for it in 1998. Moynihan said the procedure was just "too close to infanticide." Fellow pro-choice Sens. Patrick Leahy and Joseph Biden, also Catholic, joined Moynihan in voting for the ban, with Biden recently repeating Moynihan's oft quoted "infanticide" phrase on "Meet the Press" this April after the Supreme Court ruled in Gonzales v. Carhart that the ban on D&X procedures is constitutional.

Apparently the five Supreme Court justices in the majority, all of whom are Catholic, agreed with the senators. Their opinion upheld the federal Partial Birth Abortion Ban Act of 2003, which prohibits the performance of a rare abortion procedure, performed most often in the second trimester of pregnancy, in which a doctor extracts the fetus intact, pulling out its entire body through the cervix and vagina, piercing the skull so that the head can pass safely through the cervix. The bill, or state variations of it, had been ruled unconstitutional by various courts, including the Supreme Court. None of these bills included an exception to allow the procedure to be performed when the woman's health was threatened, which Roe and subsequent Supreme Court decisions held essential. Gonzales v. Carhart was closely watched as it was the first abortion case the post-Sandra Day O'Connor court would decide.

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The opinion, written by Anthony Kennedy, who is considered the least orthodox of the five, was devastating. Beyond outlawing a method of abortion it deemed only possibly needed by a few women, the decision injected orthodox Catholic teaching into the interpretation of constitutional rights. Kennedy's opinion, which affirms "the government's right to use its voice and its regulatory authority to show its profound respect for the life within the woman" as it cavalierly dismisses the need a few specific women might have for this procedure, could easily have been written by the late Pope John Paul II or the current Benedict XVI. Women are invisible in this decision as they are invisible in the writings of recent—and not so recent—popes. Now it's impossible for me to remain silent.

The orthodox Catholic preoccupation with the morality of physical acts to the exclusion of the context in which those acts occur is evident in the amount of space the Kennedy decision gives to the description of the medical procedure (approximately eight pages), with only a few paragraphs on the possibility that banning the procedure would "subject [women] to significant health risks." Kennedy and his cohort are satisfied that this is a "contested question" and "medical uncertainty" places no ethical or legal requirement on the court or legislature. Nowhere in the decision are the health reasons that lead doctors to perform this procedure rather than others discussed. No ambivalence exists. No competing values need to be weighed.

After all, the Catholic hierarchy still forbids assisted reproduction in large part because sperm is collected by masturbation. The good of enabling an infertile couple to conceive does not outweigh the evil of spilling one's seed. It still prohibits the use of condoms to prevent the spread of HIV because the condom is also a contraceptive. In the same way, the reasons why a woman might need the D&X procedure, such as when a deformity truly inconsistent with life is discovered late in a wanted pregnancy, are totally irrelevant to orthodox Catholic anti-abortionists and are absent from Kennedy's opinion or concern.

Let's face it: No abortion procedure is aesthetically pleasing. They are, as Justice Ruth Bader Ginsburg noted in her dissent, "gruesome"—some more than others, but none do not trouble a gentle nature. I, like most people, would prefer not to think about how abortions are performed and I certainly don't want to spend my time in an unwinnable debate over techniques that ignores social context. Most of us want abortion to be available when someone in our family needs one, but how it's performed and just what the fetus looks like tend to go unexplored. But every woman knows that abortion includes a difficult "yuck" factor; honest discussion of the subject shouldn't ignore that. The Kennedy opinion, however, ignores everything but that by leaving out the reality of how women and doctors deal with unintended pregnancy and abortion.

Even among physicians who regularly perform abortions, most limit their practice to the first 15 or so weeks of pregnancy with only 2 percent willing to do them after 20 weeks. Most women try to get an abortion in the first eight weeks of pregnancy and more than 50 percent succeed; 90 percent of all abortions are performed by the 12th week. This self-regulating instinct in doctors and women requires no reinforcement or preaching from government. We all get it: Abortion is not an unmitigated good; it is better to not need one; if needed, it is better to have one early; and it is a very serious situation when one needs one when the fetus is more developed.

At the same time, the overwrought descriptions of intact dilation and evacuation as "partial-birth" abortion, infanticide or killing babies who, if delivered that day, would be shaking their silver rattles and smiling, is ill-informed. Abortion statistics are difficult to gather in a timely manner since Reagan administration politics ended the Centers for Disease Control's abortion surveillance program. For 2000, the Guttmacher Institute estimated that only 1.2 percent (16,100) of all abortions occurred at 21 weeks or later. About 2,200 of these, most of which were performed between 18 and 24 weeks, were D&X procedures.

Given these facts, it's hard to discern the basis for the misguided concerns of politicians like supposedly "pro-choice" Joe Biden who not only support the ban on D&X abortion but impede poor women's access to early abortion by their opposition to federal funding for Medicaid abortions. But the truth is, these positions are politically expedient.

Conventional wisdom holds that abhorring abortion while believing it should be a little bit legal can offer a "pro-choice" candidate moral cover. And second-trimester abortions and poor women are easy targets. The thrice-married Catholic Republican presidential candidate Rudy Giuliani declares in a single sentence his hatred of abortion, respect for a woman's right to choose and nonchalance about Roe's survival. Joe Biden's "feelings" about morality are not different from Giuliani's. Far too often the moralizers are Roman Catholics who should know better.

Moralizing about women's lives is not, of course, an exclusively Catholic habit, but we Catholic feminists tend to sniff it out and want to snuff it out. When we see it in a Supreme Court decision our fear of being considered irrational fades. At the risk of providing yet another opportunity for that pit bull of Catholic orthodoxy, William Donohue, to cry anti-Catholicism, one must stress another aspect of orthodox Catholicism that is the foundation of the majority opinion in this case—its tragic view of women as either victims or sluts.

In her dissent Justice Ginsburg more than teases out the flawed moral frame and outdated understanding of women's nature that dominates Kennedy's opinion. "Ultimately," Ginsburg notes, "the court admits that 'moral concerns' are at work … by allowing such concerns to carry the day and the case, overriding fundamental rights, the Court dishonors our precedent."

What Ginsburg is too cautious to say is that those moral concerns are distinctly Roman Catholic. As the world, particularly the U.S., Europe and the United Nations, increasingly recognizes women's sexual and reproductive rights as legitimate, the Vatican has called on its powerful members to reject such public policies wherever possible. And the five Catholic justices have used the "partial-birth" abortion decision to do just that. Kennedy's words about the "bond of love" "mothers" have with their "child" could have been written by John Paul II, who exhorted the Muslim women of Bosnia-Herzegovina who had been raped by Christians to continue their pregnancies. He asked them to turn those rapes into "acts of love" by bringing those "children" into the world. The court's refutation of the long-standing legal and medical distinction between a pre- and post-viable fetus in the claim that "a fetus is a living organism while within the womb, whether or not it is viable outside the womb," and thus entitled to similar protection, could have come from John Paul's encyclical "Evangelium Vitae."

Like Bush's wholesale appropriation of John Paul "culture of life" rhetoric, the opinion is an indicator of the extent to which sectarian Catholic thought and teaching has become the framework of public policy.

In this context, it seems unreasonable to maintain the facade of a court free of a religious test. For some time now, such a test has existed—and it is an orthodox Catholic test. We were ill-served by senators who, fearing that talking about what orthodox Catholicism requires of its adherents would subject them to charges of anti-Catholicism, confirmed justices who cannot distinguish the Constitution from the catechism of the Catholic church.

Defending so-called partial-birth abortions in this context becomes what defending the right to choose abortion has always been, a defense of religious liberty and women's moral autonomy. I am now sorry I did not find a way to say that 10 years ago.

Analysis Politics

Anti-Choice Democrats Employ ‘Dangerous,’ Contradictory Strategies

Ally Boguhn & Christine Grimaldi

Democrats for Life of America leaders, politicians, and rank-and-file supporters often contradict each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party's platform is newly committed to increasing abortion access for all.

The national organization for anti-choice Democrats last month brought a litany of arguments against abortion to the party’s convention. As a few dozen supporters gathered for an event honoring anti-choice Louisiana Gov. John Bel Edwards (D), the group ran into a consistent problem.

Democrats for Life of America (DFLA) leaders, politicians, and rank-and-file supporters often contradicted each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party’s platform is newly committed to increasing access to abortion care for all.

DFLA leaders and politicians attempted to distance themselves from the traditionally Republican anti-choice movement, but repeatedly invoked conservative falsehoods and medically unsupported science to make their arguments against abortion. One state-level lawmaker said she routinely sought guidance from the National Right to Life, while another claimed the Republican-allied group left anti-choice Democrats in his state to fend for themselves.

Over the course of multiple interviews, Rewire discovered that while the organization demanded that Democrats “open the big tent” for anti-choice party members in order to win political office, especially in the South, it lacked a coordinated strategy for making that happen and accomplishing its policy goals.

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Take, for example, 20-week abortion bans, which the organization’s website lists as a key legislative issue. When asked about why the group backed cutting off abortion care at that point in a pregnancy, DFLA Executive Director Kristen Day admitted that she didn’t “know what the rationale was.”

Janet Robert, the president of the group’s executive board, was considerably more forthcoming.

“Well, the group of pro-life people who came up with the 20-week ban felt that at 20 weeks, it’s pretty well established that a child can feel pain,” Robert claimed during an interview with Rewire. Pointing to the U.S. Supreme Court’s ruling in Roe v. Wade, which protected the right to legal abortion care before the point of fetal viability, Rogers suggested that “more and more we’re seeing that children, prenatal children, are viable around 20 to 22 weeks” of pregnancy.

Medical consensus, however, has found it “unlikely” that a fetus can feel pain until the third trimester, which begins around the 28th week of pregnancy. The doctors who testify otherwise in an effort to push through abortion restrictions are often discredited anti-choice activists. A 20-week fetus is “in no way shape or form” viable, according to Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists.

When asked about scientific findings that fetuses do not feel pain at 20 weeks of pregnancy, Robert steadfastly claimed that “medical scientists do not agree on that issue.”

“There is clearly disagreement, and unfortunately, science has been manipulated by a lot of people to say one thing or another,” she continued.

While Robert parroted the very same medically unsupported fetal pain and viability lines often pushed by Republicans and anti-choice activists, she seemingly acknowledged that such restrictions were a way to work around the Supreme Court’s decision to make abortion legal.

“Now other legislatures are looking at 24 weeks—anything to get past the Supreme Court cut-off—because everybody know’s it’s a child … it’s all an arbitrary line,” she said, adding that “people use different rationales just to get around the stupid Supreme Court decision.”

Charles C. Camosy, a member of DFLA’s board, wrote in a May op-ed for the LA Times that a federal 20-week ban was “common-sense legislation.” Camosy encouraged Democratic lawmakers to help pass the abortion ban as “a carrot to get moderate Republicans on board” with paid family leave policies.

Robert also relied upon conservative talking points about fake clinics, also known as crisis pregnancy centers, which routinely lie to patients to persuade them not to have an abortion. Robert said DFLA doesn’t often interact with women facing unplanned pregnancies, but the group nonetheless views such organizations as “absolutely fabulous [be]cause they help the women.”

Those who say such fake clinics provide patients with misinformation and falsehoods about abortion care are relying on “propaganda by Planned Parenthood,” Robert claimed, adding that the reproductive health-care provider simply doesn’t want patients seeking care at fake clinics and wants to take away those clinics’ funding.

Politicians echoed similar themes at DFLA’s convention event. Edwards’ award acceptance speech revealed his approach to governing, which, to date, includes support for restrictive abortion laws that disproportionately hurt people with low incomes, even as he has expanded Medicaid in Louisiana.

Also present at the event was Louisiana state Rep. Katrina Jackson (D), responsible for a restrictive admitting privileges law that former Gov. Bobby Jindal (R) signed into law in 2014. Jackson readily admitted to Rewire that she takes her legislative cues from the National Right to Life. She also name-checked Dorinda Bordlee, senior counsel of the Bioethics Defense Fund, an allied organization of the Alliance Defending Freedom.

“They don’t just draft bills for me,” Jackson told Rewire in an interview. “What we do is sit down and talk before every session and see what the pressing issues are in the area of supporting life.”

Despite what Jackson described as a commitment to the constitutionality of her laws, the Supreme Court in March blocked admitting privileges from taking effect in Louisiana. Louisiana’s law is also nearly identical to the Texas version that the Court struck down in June’s Whole Woman’s Health v. Hellerstedt decision.

Jackson did not acknowledge the setback, speaking instead about how such measures protect the health of pregnant people and fetuses. She did not mention any legal strategy—only that she’s “very prayerful” that admitting privileges will remain law in her state.

Jackson said her “rewarding” work with National Right to Life encompasses issues beyond abortion care—in her words, “how you’re going to care for the baby from the time you choose life.”

She claimed she’s not the only Democrat to seek out the group’s guidance.

“I have a lot of Democratic colleagues in my state, in other states, who work closely with [National] Right to Life,” Jackson said. “I think the common misconception is, you see a lot of party leaders saying they’re pro-abortion, pro-choice, and you just generally assume that a lot of the state legislators are. And that’s not true. An overwhelming majority of the Democrat state legislators in our state and others are pro-life. But, we say it like this: We care about them from the womb to the tomb.”

The relationship between anti-choice Democrats and anti-choice groups couldn’t be more different in South Dakota, said state house Rep. Ray Ring (D), a Hillary Clinton supporter at DFLA’s convention event.

Ring said South Dakota is home to a “small, not terribly active” chapter of DFLA. The “very Republican, very conservative” South Dakota Right to Life drives most of the state’s anti-choice activity and doesn’t collaborate with anti-choice Democrats in the legislature, regardless of their voting records on abortion.

Democrats hold a dozen of the 70 seats in South Dakota’s house and eight of the 35 in the state senate. Five of the Democratic legislators had a mixed record on choice and ten had a pro-choice record in the most recent legislative session, according to NARAL Pro-Choice South Dakota Executive Director Samantha Spawn.

As a result, Ring and other anti-choice Democrats devote more of their legislative efforts toward policies such as Medicaid expansion, which they believe will reduce the number of pregnant people who seek abortion care. Ring acknowledged that restrictions on the procedure, such as a 20-week ban, “at best, make a very marginal difference”—a far cry not only from Republicans’ anti-choice playbook, but also DFLA’s position.

Ring and other anti-choice Democrats nevertheless tend to vote for Republican-sponsored abortion restrictions, falling in line with DFLA’s best practices. The group’s report, which it released at the event, implied that Democratic losses since 2008 are somehow tied to their party’s support for abortion rights, even though the turnover in state legislatures and the U.S. Congress can be attributed to a variety of factors, including gerrymandering to favor GOP victories.

Anecdotal evidence provides measured support for the inference.

Republican-leaning anti-choice groups targeted one of their own—Rep. Renee Ellmers (R-NC)—in her June primary for merely expressing concern that a congressional 20-week abortion ban would have required rape victims to formally report their assaults to the police in order to receive exemptions. Ellmers eventually voted last year for the U.S. House of Representatives’ “disgustingly cruel” ban, similarly onerous rape and incest exceptions included.

If anti-choice groups could prevail against such a consistent opponent of abortion rights, they could easily do the same against even vocal “Democrats for Life.”

Former Rep. Kathy Dalhkemper (D-PA) contends that’s what happened to her and other anti-choice Democrats in the 2010 midterm elections, which resulted in Republicans wresting control of the House.

“I believe that pro-life Democrats are the biggest threat to the Republicans, and that’s why we were targeted—and I’ll say harshly targeted—in 2010,” Dahlkemper said in an interview.

She alleged that anti-choice groups, often funded by Republicans, attacked her for supporting the Affordable Care Act. A 2010 Politico story describes how the Susan B. Anthony List funneled millions of dollars into equating the vote with support for abortion access, even though President Obama signed an executive order in the vein of the Hyde Amendment’s prohibition on federal funds for abortion care.

Dalhkemper advocated for perhaps the clearest strategy to counter the narrative that anti-choice Democrats somehow aren’t really opposed to abortion.

“What we need is support from our party at large, and we also need to band together, and we also need to continue to talk about that consistent life message that I think the vast majority of us believe in,” she said.

Self-described pro-choice Georgia House Minority Leader Rep. Stacey Abrams (D) rejected the narratives spun by DFLA to supporters. In an interview with Rewire at the convention, Abrams called the organization’s claim that Democrats should work to elect anti-choice politicians from within their ranks in order to win in places like the South a “dangerous” strategy that assumes “that the South is the same static place it was 50 or 100 years ago.”

“I think what they’re reacting to is … a very strong religious current that runs throughout the South,” that pushes people to discuss their values when it comes to abortion, Abrams said. “But we are capable of complexity. And that’s the problem I have. [Its strategy] assumes and reduces Democrats to a single issue, but more importantly, it reduces the decision to one that is a binary decision—yes or no.”

That strategy also doesn’t take into account the intersectional identities of Southern voters and instead only focuses on appealing to the sensibilities of white men, noted Abrams.

“We are only successful when we acknowledge that I can be a Black woman who may be raised religiously pro-life but believe that other women have the right to make a choice,” she continued. “And the extent to which we think about ourselves only in terms of white men and trying to convince that very and increasingly narrow population to be our saviors in elections, that’s when we face the likelihood of being obsolete.”

Understanding that nuances exist among Southern voters—even those who are opposed to abortion personally—is instead the key to reaching them, Abrams said.

“Most of the women and most of the voters, we are used to having complex conversations about what happens,” she said. “And I do believe that it is both reductive and it’s self-defeating for us to say that you can only win if you’re a pro-life Democrat.”

To Abrams, being pro-choice means allowing people to “decide their path.”

“The use of reproductive choice is endemic to how we as women can be involved in society: how we can go to work, how we can raise families, make choices about who we are. And so while I am sympathetic to the concern that you have to … cut against the national narrative, being pro-choice means exactly that,” Abrams continued. “If their path is pro-life, fine. If their path is to decide to make other choices, to have an abortion, they can do so.”

“I’m a pro-choice woman who has strongly embraced the conversation and the option for women to choose whatever they want to choose,” Abrams said. “That is the best and, I think, most profound path we can take as legislators and as elected officials.”

News Health Systems

Anti-Choice Group Files Lawsuit Over Newly Signed Law That Protects Illinois Patients

Michelle D. Anderson

The policy, which is an amendment to the Illinois Health Care Right of Conscience Act, requires physicians and medical facilities to to provide patients upon request with information about their medical circumstances and treatment options consistent with "current standards of medical care," in cases where the doctor or institution won’t offer services on religious grounds.

CORRECTION: This piece has been updated to clarify the scope of SB 1564 and which groups are opposing it.

A conservative Christian legal group has followed through on its threat to use litigation to fight against a new state policy that protects patients at religiously-sponsored hospitals in Illinois.

The Alliance Defending Freedom (ADF) on Friday filed a lawsuit in the Circuit Court of the 17th Judicial Circuit in Winnebago County against Illinois Gov. Bruce Rauner and Bryan A. Schneider, the secretary of the Illinois Department of Financial & Professional Regulation.

Rauner, a Republican, signed the contested policy, SB 1564, into law on July 29.

The ADF, which warned Rauner about signing the bill in a publicized letter and statement in May, filed the complaint on behalf of several fake clinics, also known as crisis pregnancy centers. These included the Pregnancy Care Center of Rockford and Aid for Women, Inc. Anti-choice physician Dr. Anthony Caruso of A Bella Baby OBGYN—also known as Best Care for Women—was also named as a plaintiff.

“Alliance Defending Freedom is ready and willing to represent Illinois pro-life pregnancy centers if SB 1564 becomes law,” the group said in May. The ADF wrote on behalf of several anti-choice groups, claiming SB 1564 violated the Illinois state law and constitution and risked putting federal funding, such as Medicaid reimbursements, in jeopardy.

In February 2015, state Sen. Daniel Biss (D-Skokie) introduced the policy, which is an amendment to the Illinois Health Care Right of Conscience Act.

The revised law requires physicians and medical facilities to provide patients upon request with information about their medical circumstances and treatment options consistent with “current standards of medical care,” in cases where the doctor or institution won’t offer services on religious grounds.

The new policy also gives doctors and medical institutions the option to provide a referral or transfer the patient.

Unlike an earlier version of the legislation, the version passed by Rauner does not require hospitals to confirm that providers they share with patients actually perform procedures the institutions will not perform; they must only have a “reasonable belief” that they do, Rewire previously reported.

As previously noted by Rewire:

Catholic facilities often follow U.S. Conference of Catholic Bishops religious directives that generally bar treatments such as sterilization, in vitro fertilization, and abortion care. The federal Church Amendment and some state laws protect these faith-based objections.

The plaintiffs, which are also being represented by Mauck & Baker LLC attorney Noel Sterett, argued in a statement that the Illinois Constitution protects “liberty of conscience,” and quoted a passage from state law that says “no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions.”

Illinois Right to Life and the Thomas More Society joined the ADF in protesting the bill. The Catholic Conference of Illinois (CCI) and the Illinois Catholic Health Association (ICHA) initially protested the bill after it was introduced early last year. However, the two groups later negotiated with the ACLU to pass a different version of the bill that was introduced.

In support of the bill around the time of its introduction in early 2015, the American Civil Liberties Union of Illinois pushed its Put Patients First initiative to help stop the use of religion to deny health care to patients. The advocacy group noted that patients who are miscarrying or facing ectopic pregnancies, same-sex couples, and transgender people and persons seeking contraception such as vasectomies and tubal ligations are particularly vulnerable to these harmful practices.

A new study, “Referrals for Services Prohibited in Catholic Health Care Facilities,” set to be published in Perspectives on Sexual and Reproductive Health in September, suggested that Catholic hospitals often “dump” abortion patients and deny them critical referrals as result of following religious directives outlined by the U.S. Conference of Catholic Bishops (USCCB).

Recent figures from an ACLU and MergerWatch advocacy group collaboration suggest Catholic hospitals make up one in six hospital beds nationwide.

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