Roundup: Serial Novel Imagines Post-Roe World

Brady Swenson

Linda Hirshman posts first chapter of serial novel imagining a post-Roe world; A closer look at the Colorado amendment to redefine "person" in its constitution; Opinion piece calls for a stop to Bush's "undeclared war on family planning and contraception."

Serial Novel Imagines a Post-Roe World

Linda Hirshman, a lawyer, writer and professor retired from Brandeis University, recently wrote about a post-Roe world in the Washington Post, an article Scott highlighted on the Real Time Blog, and one you should read if you missed.  Linda just released the first chapter of a serial novel, called "Red State", that she will be posting online chapter by chapter.  The novel imagines an America in which the country is divided into Red States, that prohibit abortion, and Blue States that permit abortion.  Introducing her short novel she writes that, post-Roe, "legal scholars predict a world eerily like America before the Civil
War, with women fleeing anti-abortion states, the authorities a few
steps behind." 

 

A Closer Look at Colorado Amendment 48: Definition of Personhood

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VIDEO: Does Life Begin at Fertilization?VIDEO: Does Life Begin at Fertilization?
Check out this useful post at Coloradoan.com that summarizes arguments for and against the amendment on which Coloradans will vote this November 4. The amendment would change the definition of person to "include any human being from the moment of fertilization." The arguments against supporting the change in definition include worries that redefining person in the Colorado constitution could have unanticipated legal consequences, that the amendment could limit the exercise of independent medical judgment, and, perhaps most worrisome:

Amendment 48 may limit the ability of individuals to make private,
personal choices about their lives and health. The measure could be
used to limit access to abortions and to prohibit medical care,
including emergency contraception, commonly used forms of birth
control, and treatments for cancer, tubal pregnancies, and infertility.
The amendment may restrict some stem-cell research that could lead to
life-saving therapies for a variety of disabilities and illnesses.

 

Stop the Undeclared War on Family Planning and Contraception

A great opinion piece in the Atlanta Journal-Constitution written by the president of the Heinz Family Philanthropies, Jeffery R. Lewis, rails against the Bush administration‘s "aggressive, 11th-hour attempt to redefine contraception as abortion." 

The new rule is a carefully crafted ruse to obstruct public access
to contraception methods that are used by more than 37 million American
women and men to act responsibly, stay healthy and plan for strong
families.

Federally funded comprehensive family planning programs — such as
those implemented by states, municipalities and community health
centers — could start refusing to offer women and men education on
responsible sexual behavior and access to contraception.

Comprehensive family planning programs have helped low-income
families get the education and contraception they need to act
responsibly. They prevent an estimated 1.3 million unplanned
pregnancies and 630,000 abortions each year. Every dollar spent on them
saves an estimated $4.02 in pregnancy-related and newborn care costs to
Medicaid.

These health centers also provide screenings for HIV/AIDS and other
sexually transmitted infections, identifying thousands of cases that
would otherwise go undetected and untreated. And they address women’s
broader health needs by conducting millions of breast screenings and
Pap tests. Over two decades, they have detected 55,000 cases of
invasive cervical cancer, saving lives and money.

By law, federally funded services cannot provide abortion. What they
provide is age-appropriate sex education, counseling and contraception
that are effective in preventing unplanned pregnancies and the need for
abortion.

A look past the lofty rhetoric reveals a policy guided by ideology,
not science, and an aggressive, 11th-hour attempt to redefine
contraception as abortion — an extremist view that few Americans in
either party support.

The 30 day public commenting on the "first move in a new, undeclared war on contraception" concluded last week with over 200,000 comments sent to Department of Health and Human Services director Michael Leavitt.  The HHS is reviewing comments and will decide whether or not to implement the proposed rule in the coming weeks.

 

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.