True Common Ground for the 111th Congress

Kay Steiger

The 111th Congress has an opportunity to pass true common ground legislation that will ensure access to contraception and sexuality education. But will this agenda be derailed by those who push "abortion reduction" instead of reproductive health?

This election season, 14 Planned
Parenthood-endorsed Senate candidates secured
or retained seats
,
and 177 House pro-choice House members won their campaigns. The number
of pro-choice members of Congress is encouraging to the pro-choice
community, and the 111th Congress has the opportunity to pass choice-related
legislation that would make great strides on reproductive health care
access.  But while the women’s health community welcomed an election season that favored pro-choice candidates,
the anti-choice community added five pro-life Democrats to their ranks,
gaining more potential votes for "abortion reduction" legislation — measures that generally encourage adoption over abortion. In this 111th Congressional session, lawmakers have the opportunity to solidify
progressive legislation on reproductive rights that ensures access to common-ground measures like contraception and sexuality education while safeguarding access to abortion. But some legislators may
propose bills that
will sound appealing to constituents who are tired of debating the abortion
issue, but actually restrict reproductive choice for women. 

Some of the legislation on
the table this year was inspired by a report on reproductive health by Third Way, a think tank founded in 2005 to promote centrist policies and has called for a focus on efforts to reduce the need for abortion.  The Third Way report insists, despite the fact that
it found 66 percent of evangelicals believe abortion should either be
always illegal or illegal with few exceptions, that more than
half of evangelicals want to find a "middle ground" on abortion,
as Sarah Posner outlined in a recent article in The American
Prospect.

"Reducing the Need for Abortion
and Supporting Parents Act" is the bill that came out of Third Way’s
report. Posner reports that the legislation "does contain some provisions
for contraception and sex education but also includes a panoply of economic
and other provisions meant to reduce abortion, including funding for
ultrasound equipment, support for pregnant and parenting college and
graduate students, and funding for adoption-assistance programs."
But the bill also allows for so-called "informed consent" provisions,
which provide women with propaganda designed to dissuade them
from abortion and promote adoption. Rep. Tim Ryan (D-OH) who has worked
with the Democrats for Life on their campaign to reduce abortion by 95%
in 10 years (numbers fiercely disputed by reproductive health advocates),
the 95-10
initiative
, sponsored
the bill; the leading Democratic co-sponsor, Rep. Rosa DeLauro (D-CT),
has historically been a strong leader on feminist issues like gender
pay equity (earlier versions of this bill–with fewer contraception
provisions–were known as the Reducing Need For Abortion bill and the
Pregnant Women Support Act. The bill was originally
pushed
by Democrats
for Life under their 95-10 initiative, but once the pro-choice provisions
were added to the bill, Democrats for Life dropped their endorsement). 

Ryan-DeLauro also proposes funding a "National Center for Parents of Adolescents,"
part of which would be a federal website designed to support parents in their
"essential role in preventing teen pregnancy." Much of this information
is already provided by Planned Parenthood, the Sexuality Information
Education Council in the United States (SIECUS), and other organizations
that support comprehensive and accurate sex education. DeLauro has gone
on the record saying she plans to introduce the legislation again this
year, but Congress could consider other legislation that would achieve
the same investment in prevention without mandating the distribution of adoption literature
to women who seek abortion care, for example. 

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Instead of looking to the flawed
Ryan-DeLauro legislation, Congress could look at the Prevention First
Act, a bill introduced by Sen. Majority Leader Harry Reid (D-NV) and
Rep. Louise Slaughter (D-NY) that promotes contraception access by expanding health coverage for all women. The
bill calls for increasing Medicaid coverage for contraception and mandates
that private health insurers give the same coverage they give to other
prescription drugs to prescription birth control. The bill mandates
access to emergency contraception for rape and sexual assault victims
and calls for increased public education about the drug.  

Since Obama supported Prevention
First while in the Senate, the bill, if it passes Congress, stands a
very good chance of becoming law. It would reduce unintended pregnancies
and it doesn’t address more controversial barriers to reproductive health
care like the Hyde amendment, which bans federal Medicaid funding for
abortion services. Prevention First contains a section
called Responsible Education About Life (REAL), language that was originally introduced
by Sen. Frank Lautenberg (D-NJ) and Rep. Barbara Lee (D-CA) as an independent
bill to promote comprehensive sex education and requires that all sex
education teach "medically accurate information." The legislation
is already endorsed (PDF) by the National Family Planning &
Reproductive Health Organization as well as other pro-choice groups. REAL would reform funding for sex ed, requiring
that all information taught in sexual education is medically accurate.
It counteracts the more than $1 billion that has been allocated to abstinence-only
programming in the last decade. 

The most comprehensive reform
promoting women’s reproductive health and rights in Congress is known
as the Freedom
of Choice Act
.
This legislation, introduced by Sen. Barbara Boxer (D-CA), addresses
a series of findings that highlight many of the battles reproductive
rights activists have been fighting for years: the fact that 87 percent
of counties in the United States don’t have abortion providers, the
estimate that 1.2 million women in the United States each year undergo
illegal abortion procedures at the risk of injury or death, and that
bans and other legal barriers to abortion "endanger the health and
lives of women."  FOCA demands that a woman be able to make a
decision about whether or not she can or should terminate a pregnancy
"without governmental interference," and it is designed to put into
legislation what Roe v. Wade established decades ago: the right of women to access abortion without judgment,
and without undue burdens. Although there is reason to believe that Obama
supports such legislation, with a plate full of significant fixes like
repealing the global gag rule, overturning the HHS "conscience"
regulation, and bigger battles like comprehensive health care reform,
FOCA might not fall at the top of Obama’s priority list. FOCA is solid
legislation, though, that would virtually eliminate trepidation around
statewide abortion bans, trigger laws that would ban abortion at the
first sign of a shift on the Supreme Court, and nail-biting judicial
confirmations. 

Ultimately, much of the legislation
that’s been introduced in the past, including some of the Democrats
for Life-supported bills, will likely be re-introduced in the next session
of Congress. Despite the increased number of Democrats in Congress,
and the wins for Planned Parenthood-endorsed candidates in the 111th
Congress, reproductive rights remains an issue that senators and members of Congress are all too happy to avoid. While many anti-choice
legislators and groups will try to push bills like the Ryan-DeLauro
bill as "common ground" legislation, such bills are actually
pushing the legislative agenda on choice even further to the right.
Legislation like Prevention First and REAL are in
reality far more centrist because they provide for popular measures like
promoting contraception and comprehensive sex education.

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

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.