Roundup: Far Right’s ‘Born Alive’ Infanticide Smear Proven False

Brady Swenson

Far right's shameless attempt to smear Obama as 'infanticidal' entirely debunked; McCain flips on more woman-friendly 2000 abortion position; Bush's anti-contraception proposal would blunt state contraception access laws; Doctor addresses the poor state of reproductive health and rights in Yemen.

Far Right’s ‘Born Alive’ Infanticide Smear Proven False … The Obama campaign has released a fact sheet detailing Obama’s voting record on various versions of the bill labeled the ‘Born Alive Infant Protection Act’ (BAIPA) in the Illinois legislature.  The intrepid Eric Zorn of the Chicago Tribune has also done the research that the National Right to Life Council, Jill Stanek and other far right anti-choice extremists have not.  These two parties were principally responsible for distorting votes Obama made while chair of the Health and Human Services committee of the Illinois General Assembly and inflating these distortions into a full fledged smear accusing Barack Obama of supporting infanticide. 

EDIT: After re-reading much of this back-and-forth I would like to edit my original post this morning.  Like Stanek, who admitted to making a mistake in her evaluation of Obama’s voting record, the Obama campaign itself made a mistake in the original explanation of the bill and did not correct their inaccurate defense of the 2003 vote until the fact sheet was posted to the web on August 19th.  The only fact that matters now is that the 2003 Illinois committee version of the bill did not sufficiently address the neutrality issue thus making the bill legally dissimilar to the 2002 federal version.  

As State Rep Schoenberg explained in Eric Zorn’s research:

The feeling of the majority was that the bill (even as amended) still created great uncertainty about whether it would compromise abortion rights.  It looked like  yet another case of advocates trying to inject politics into the practice of medicine; we saw a desire to keep those   those key questions (about abortion rights) unclear.

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Thus Obama’s original defense of the bill, that it did not sufficiently provide legal neutrality to protect existing abortion law, was accurate.  And he was not the only legislator with concerns about the first 16 versions of the BAIPA bill that eventually passed in Illinois, as Zorn writes:

But Obama was far from the only state lawmaker who needed stronger
assurances that these bills were not Trojan horses: Seven more bills
related to "born-alive" failed in the General Assembly in 2004, and
Obama had nothing to do with those bills. And in 2005, when Obama was
in the U.S. Senate, a "born-alive" bill passed easily in Illinois when
specific wording was added, over the objections of abortion-rights
foes, saying it would not affect state law regarding abortion.

McCain Backs Away from Abortion Pledge … In 2000, when John McCain was running against George W. Bush for the Republican nomination, the still alive ‘maverick’ stood against the Republican party platform to support exceptions to abortion bans in the cases of rape, incest and the health of the mother — check out this video of a 2000 ABC debate in which McCain makes his support for exceptions to abortion bans very clear.  

John McCain has now reversed his position and fallen in line with the social conservatives of the party to support criminalizing abortion and the doctors and women choose to provide and receive abortion care:

John McCain’s campaign signaled on Wednesday that the Arizona senator
is backing away from his previously stated goal of changing the GOP’s
platform on abortion.

"There’s a process in place for the delegates to work on the
platform and we are going to let that process work itself out," McCain
spokesman Brian Rogers told ABC News.

McCain’s plan to take a hands-off approach with the abortion
platform stands in stark contrast with the position he took during his
first presidential run.

Back in 2000, McCain clashed with then-Gov. George W. Bush over his
unwillingness to change platform language that called for a human life
amendment banning all abortions.

Bush Administration’s Anto-contraception Proposal Would Blunt State Contraception Access Laws … The San Francisco Chronicle reports that the recently proposed anti-contraception HHS regulations "would stop California from enforcing a state law that requires Catholic
hospitals and charities to provide birth control coverage for thousands
of female employees, state Attorney General Jerry Brown and
family-planning advocates said Wednesday."

The article goes on to say that the California law and similar laws in states around the country are the target of the proposed regulation changes: 

The draft regulation describes the problem as laws such as those in
California and New York that require employers to include
contraceptives in any prescription drug coverage they offer to
employees. The federal agency had no comment Wednesday on the proposal.

California’s law was passed in 2000 in response to decisions by many
health insurance plans to cover the male potency drug Viagra but
continue to deny coverage for birth control pills, forcing women to pay
for contraceptives.

The state Supreme Court upheld the law in a 2004 ruling that applied
to 1,600 employees of Catholic Charities and 52,000 employees of
Catholic hospitals in the state. The law exempts church employees, but
the court said affiliated agencies such as Catholic Charities are
secular institutions because they employ and serve mostly non-Catholics.

Two more articles that warn against the implementation of these regualtions appear in The Daily News Record of Harrisburg, Virginia and in the Argus Leader.

The Poor State of Reproductive Health and Rights in Yemen … Dr. Walid Nasser Abdullah, a Yemeni doctor, writes in the Yemen Times today about the many problems facing women’s reproductive health and rights in his country:

Women in Yemen certainly experience a terrible situation regarding their reproductive lives. Numerous health indicators reflect not only the deterioration of basic health care, particularly prenatal care and safe childbirth services, but also women’s social inferiority in various aspects of their lives, such as the right to receive an education, proper nutrition, occupational opportunities and access to health care.

Dr. Abdullah goes on to provide three areas on which Yemen could focus to start down the path of improvement including fighting the terrible practice of female circumcision, delaying the traditionally young ages at which Yemeni girls are married and improved access to critical family planning services. 


Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

Roundups Law and Policy

Gavel Drop: Welcome to the New World After ‘Whole Woman’s Health’

Imani Gandy & Jessica Mason Pieklo

With the recent U.S. Supreme Court ruling, change may be afoot—even in some of the reddest red states. But anti-choice laws are still wreaking havoc around the world, like in Northern Ireland where women living under an abortion ban are turning to drones for medication abortion pills.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The New York Times published a map explaining how the U.S. Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect abortion nationwide.

The Supreme Court vacated the corruption conviction of “Governor Ultrasound:” Former Virginia Gov. Bob McDonnell, who signed a 2012 bill requiring women get unnecessary transvaginal ultrasounds before abortion.

Ian Millhiser argues in ThinkProgress that Justice Sonia Sotomayor is the true heir to Thurgood Marshall’s legacy.

The legal fight over HB 2 cost Texas taxpayers $1 million. What a waste.

The Washington Post has an article from Amanda Hollis-Brusky and Rachel VanSickle-Ward detailing how Whole Woman’s Health may have altered abortion politics for good.

A federal court delayed implementation of a Florida law that would have slashed Planned Parenthood’s funding, but the law has already done a lot of damage in Palm Beach County.

After the Whole Woman’s Health Supreme Court ruling in favor of science and pregnant people, Planned Parenthood is gearing up to fight abortion restrictions in eight states. And we are here for it.

Drones aren’t just flying death machines: They’re actually helping women in Northern Ireland who need to get their hands on some medication abortion pills.

Abortion fever has gone international: In New Zealand, there are calls to re-examine decades-old abortion laws that don’t address 21st-century needs.

Had Justice Antonin Scalia been alive, explains Emma Green for the Atlantic, there would have been the necessary fourth vote for the Supreme Court to take a case about pharmacists who have religious objections to doing their job when it comes to providing emergency contraception.