Roundup: More Details Emerge on Tiller’s Alleged Killer; Mourners Turn to Vigils Across the Nation

Emily Douglas

Two days after the murder of Kansas women's health care provider Dr. George Tiller, more details emerge about the suspect's hate-mongering, clinics across America tighten their security, and the religious right continues to worry that Tiller's death will derail their focus on Sonia Sotomayor's position on abortion rights.

Two days after the murder of Kansas women’s health care provider Dr.
George Tiller, more details emerge about the suspect’s hate-mongering,
clinics across America tighten their security, and the religious right
continues to worry that Tiller’s death will derail their focus on Sonia
Sotomayor’s position on abortion rights.

The Washington Post describes the scene in Wichita: "In Wichita, dozens of mourners left flowers outside Tiller’s clinic,
where an American flag flew at half-staff. Across town, the man accused
of killing the doctor awaited formal charges in the Sedgwick County
jail."  Mourners in Wichita and in cities across the country gathered for vigils honoring Tiller’s life and recommitting to the struggle for reproductive freedom.

USA Today has more details about suspect Scott Roeder:

Scott Roeder called himself a citizen of the Republic of Kansas
who didn’t want to pay income or Social Security taxes or register his
car. In the 1990s, he belonged to a group that said its members were
not subject to federal or state laws…

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Roeder was arrested in Topeka
in 1996 for having an improper license plate that declared his vehicle
sovereign private property. Police found bomb-making materials during a
search of his car.

He was sentenced to 24 months in prison for
criminal use of explosives and ordered to end contact with
anti-government groups. An appeals court overturned the conviction,
calling the search illegal.

In 2007, someone identified as Scott Roeder from
Kansas City posted comments on the web pages of Operation Rescue and, both groups that oppose abortion.

"Tiller is the concentration camp Mengele of our
day," the person wrote, referring to Josef Mengele, a Nazi doctor who
conducted experiments on prisoners.

"Scott Roeder harbored a burning,’eye-for-an-eye’ anger toward abortion
doctors. He once subscribed to a magazine suggesting ‘justifiable
homicide’ against them, and apparently likened Dr. George Tiller to the
Nazi death-camp doctor Josef Mengele," reports the AP.  "’The anti-tax stuff came first, and then it grew and grew. He became
very anti-abortion,’ said Lindsey Roeder, who was married to Scott
Roeder for 10 years but ‘strongly disagrees with his beliefs.’"

Roeder had recently harassed another Kansas clinic, the AP adds: 

Roeder was also known by sight and license plate number to personnel
at a clinic in Kansas City, Kan., where he had put glue in backdoor
locks – twice in 2000 and twice this year, most recently the day before
Tiller’s death, a clinic worker said Monday night.

The worker,
who spoke on condition that his name not be used because of fears for
his safety, said another employee was in the kitchen at Central Family
Medicine early Saturday morning and spotted Roeder approaching the back

"She saw his shadow and knew who it was," the worker said.
"She chased him away and caught up with him and had a conversation with
him. He just kept repeating, ‘Baby killer.’"


Meanwhile, the Times reported that "Mr. Roeder, 51, had not been among the people considered most worrisome
to some abortion rights groups, some of which keep a close eye on
anti-abortion groups and their Web sites to monitor what they consider
threats, leaders here said."

Physician Robert Crist described a past interaction with Roeder to the Post:

One doctor remembers Roeder confronting him inside a Planned Parenthood
clinic in Kansas City in the 1990s after first asking for him by name.

"I came out and he stepped up about six inches from me and said,
‘Now I know what you look like,’ and turned and walked out of the
building," said Robert Crist, 73, adding that he had put the incident
out of his mind until Sunday. "It really does send a chill down my
spine. You wonder, ‘Was I a target?’ "

Clinics in the Boston area and around the country are tightening security, reports the Boston Herald: "Abortion clinics in the Boston area
tightened security and moved to calm workers yesterday as U.S. Marshals
were dispatched to clinics across the country in the wake of the murder
of a church-going Kansas doctor."

The anti-choice movement continues to worry that Tiller’s
murder will distract from their attempts to draw attention to Sonia
Sotomayor’s position on abortion rights, the Boston Globe reports. "But they also worried that the murder will damage the credibility of
the antiabortion movement at a time when they are anxiously pressing
for an aggressive inquiry into Sotomayor’s views on Roe v. Wade, the
1973 Supreme Court decision legalizing abortion, as well as other
regulations limiting the procedure."

The LA Times
provides statistics about the occurrence of late-term abortions,
pointing out that, "Most doctors don’t perform late-stage abortions.
Nationally, only 1.3%
of all reported legal abortions occurred at 21 weeks or more gestation.
A slightly higher percentage, 3.7%, occurred at 16 to 20 weeks

On Feministe, Jill Filipovic has a fiery, must-read reaction to Will Saletan’s absurd "Is it wrong to kill an abortionist?" headline:

First: "Abortionist" is a word made up by right-wing fanatics. They use it to downplay the fact that abortion providers are doctors,
often OB/GYNs. It would be like calling a dermitologist an "acne-ist."
It doesn’t really make sense, and there’s already an actual term for
what those doctors do. "Abortionist" is a loaded and totally incorrect
word, and it’s appalling to see it used over and over again in an
article written by a supposedly pro-choice person.

Second: Tiller is not the pro-choice equivalent of Scott Roeder, and Saletan should be ashamed for suggesting as much.

Third: The headine "Is it wrong to murder an abortionist?" suggests
that there’s actually some debate amongst reasonable people on that
issue. There is not.


Here’s how Saletan describes Tiller’s work:

Several years ago, I went to a conference of abortionists. Some of
the late-term providers were there. A row of tables displayed forceps
for sale. They started small and got bigger and bigger. Walking along
the row, you could ask yourself: Would I use these forceps? How about
those? Where would I stop?

The people who do late-term abortions
are the ones who don’t flinch. They’re like the veterans you sometimes
see in war documentaries, quietly recounting what they faced and did.
You think you’re pro-choice. You think marching or phone-banking makes
you an activist. You know nothing. There’s you, and then there are the
people who work in the clinics. And then there are the people who use
the forceps. And then there are the people who use the forceps nobody
else will use. At the end of the line, there’s George Tiller.

Nothing about the heart-breaking circumstances faced by the of the women Tiller served.  Nothing about the fact that the abortions he performed weren’t ones women could have prevented.

In The American Prospect, Michelle Goldberg offers a deeply moving assessment of Tiller’s work, an antidote to Saletan’s dismissive treatment:

abortion is often spoken of as the most morally dubious aspect of the
abortion debate. Many people who are nominally pro-choice, particularly
politicians, are quick to condemn it, to treat the work that Tiller did
as repugnant even if it’s legal.

Ironically, though, many of the
procedures Tiller did were as far away from the much-reviled concept of
"abortion on demand" as one could get. Unwanted pregnancy can, to some
extent, be prevented. A pregnancy that goes horribly wrong cannot.
Almost anyone of child-bearing age could end up needing Tiller’s
services. And now some of them will be forced to carry pregnancies to
term against their will even when their fetuses can’t survive outside
the womb…

course, not all of Tiller’s cases were as morally clear-cut as those
recounted on A Heartbreaking Choice. Tiller performed abortions at 26
or 27 weeks for developmentally disabled abuse victims or girls who’d
hidden their pregnancies and then become suicidal. Harrison himself is
uncomfortable with such late abortions. When patients of his sought
them, "Unless they were a real threat to the mother’s life, and I
consider suicide a threat to her life, we would talk about having a
baby and putting it up for adoption," he says. But it was precisely
because such abortions are so grueling for everyone involved that
Harrison admires Tiller’s willingness to do them. As everyone who knew
Tiller points out, Tiller’s motto was "trust women." He had the phrase
printed up on buttons.

Roundups Law and Policy

Gavel Drop: Ruth Bader Ginsburg Hints at More Supreme Court Retirements

Imani Gandy & Jessica Mason Pieklo

In a recent interview, Supreme Court Justice Ruth Bader Ginsburg dishes on the last Supreme Court term and hints the next president may have more than one justice to appoint.

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

Ruth Bader Ginsburg suggests the next president is going to have a couple of U.S. Supreme Court nominations to make, which means the Court could be effectively up for grabs depending on this election’s outcome.

This summer, the Supreme Court ordered the Obama administration and religiously affiliated nonprofits who object to providing contraception to try and find some kind of compromise. While they hammer one out, a University of Notre Dame student has asked a federal appeals court to let her join in the litigation, to fight the university’s stance of trying to deny access to contraception coverage.

Anti-choice protesters will be descending on Wichita, Kansas, this week to commemorate the 25th anniversary of the Summer of Mercy clinic sieges.

A state judge dismissed a lawsuit filed by Kentucky Gov. Matt Bevin (R) against Planned Parenthood of Indiana and Kentucky for purportedly performing abortions without license.

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Florida officials have not yet appealed a federal district court ruling blocking a law that would have prevented Medicaid funds from going to Planned Parenthood reproductive health care centers. The law would also mandate a state regulator review of patient records from half of the approximately 70,000 abortions in the state each year.

An Ohio appeals court ruled a Cleveland abortion clinic can move forward with its lawsuit challenging requirements that prohibit public hospitals from entering into transfer agreements with clinics, along with another requirement that mandates providers to check for a fetal heartbeat before performing an abortion.

Attorneys from the American Civil Liberties Union (ACLU) sued to block an Indiana law requiring that a patient getting an abortion must have an ultrasound 18 hours before the procedure.

Meanwhile, abortion rights supporters in Wisconsin are urging lawmakers to repeal the state’s admitting privileges requirement.

Anti-choice lawmakers in Texas plan to try to require aborted fetuses to be buried or cremated in an attempt to add additional emotional burden and administrative expense to the procedure.

Free speech for whom, exactly? The man who posted the video of the police killing of Alton Sterling has been reportedly arrested on charges of assault and battery.

Commentary Law and Policy

Three Constitutional Basics Every Abortion Rights Supporter Should Know

Bridgette Dunlap

As the biggest reproductive rights case in decades looms in the U.S. Supreme Court, it's more important than ever for advocates to be well informed.

Abortion opponents regularly talk as though no restriction is off the table when it comes to stripping away reproductive rights. And supporters of abortion rights don’t always set them straight. If we don’t know what our established rights are, we can’t defend them. Pro-choicers need to know why abortion is a constitutional right and what boundaries the U.S. Supreme Court has set out to protect it.

1. Abortion is protected by the rights to bodily integrity and to make decisions about family. The Court explained that decades ago.

The 14th Amendment prohibits states from depriving a person of liberty without due process of law. A person has the right to end a pregnancy without undue interference from the government because that right to liberty includes (1) the right to make decisions about family and (2) the right to bodily integrity.

However, in order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.

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In the pre-Roe contraception case Griswold v. Connecticut (1965), the Court did hold that “penumbras, formed by emanations” or various interpretations of the First, Third, Fourth, Fifth, and Ninth Amendments protect a right to privacy. But in deciding Roe, the Warren court located the right to privacy in the 14th Amendment’s explicit protection of the right to liberty. Regardless, the Court’s understanding of the rights that protect reproductive freedom expanded beyond just privacy decades ago.

Privacy is barely mentioned in Planned Parenthood v. Casey, which established the current law governing abortion rights more than 20 years ago. “The controlling word in the cases before us is ‘liberty,’” the decision explained. It was settled law prior to Roe that liberty includes “the right to make family decisions and the right to physical autonomy.”

Privacy is also a constitutional right, and it was indeed violated by the laws at issue in Roe and its companion case, Doe v. Bolton. Those laws required a woman seeking an abortion to share her reasons for wanting the procedure with legal or medical authorities to have any hope of receiving legal abortion care. However, the law and discourse around privacy at the time of Roe implied a woman should be permitted to use contraception or end a pregnancy because the state should not interfere in decisions made in secret with the permission of her doctor, husband, father, pastor, or others. Casey instead properly recognized that the 14th Amendment protects a person’s right to control her body and destiny.

So why has the idea persisted that all we’ve got is a privacy right made up out of thin air? A counterintuitive and less textually based right serves abortion opponents, but abortion rights advocates also have a history of telling us abortion restrictions are primarily a threat to privacy. As William Saletan documented in Bearing Right: How Conservatives Won the War on Abortion, in the run-up to Casey, pro-choice leaders emphasized privacy on the advice of pollsters and political consultants to appeal to anti-government, anti-welfare, anti-tax, and anti-integration sentiments. While reproductive rights lawyers argued to the Supreme Court that the Constitution’s protection of autonomy, bodily integrity, and equality protected abortion access, outside of court pro-choice leaders told the public the right at stake was privacy. But, ultimately, the Casey decision provided a much fuller discussion of why abortion is constitutionally protected by rights beyond privacy.

Abortion is protected by the due process clauses of the Fifth Amendment (which restricts the federal government) and the 14th Amendment (which was added to the Constitution to restrict the states). As Casey explained, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.

2. Any pre-viability ban is unconstitutional. Period.

In Casey, the Supreme Court was asked for the sixth time in a decade to overturn Roe, and the Court essentially said forget it. “We answer the question,” the authors of the controlling opinion wrote, “whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional … The answer is no.”

What part of “no” don’t conservative leaders understand? The state may not prohibit abortion before viability. A pregnancy is generally considered viable around 24 to 26 weeks. But, as the Court has recognized, this is a medical determination specific to each pregnancy—so even a 24-week ban would be unconstitutional. Though states continue to propose 20-week bans, every pre-viability ban that has been challenged in federal court has been struck down. The Supreme Court declined two recent invitations to revisit the viability line, set out in Roe and affirmed in Casey, when the Court was asked to review rulings striking down North Dakota’s six-week ban and Arkansas’ 12-week ban. Not even the late Justice Antonin Scalia or Justice Clarence Thomas (now the Court’s last remaining member who has called for overturning Roe) publicly dissented from the decision not to take the case.

It has been “black letter law”—or an established legal rule—for 40 years that abortion cannot be banned before viability with or without exceptions. The government may not condition whether a woman can have an abortion on whether she can prove she has been raped or her health is endangered because she has an absolute right to one before viability for any reason. When Democrats emphasized, for example, former Republican presidential hopefuls Texas Sen. Ted Cruz‘s or Florida Sen. Marco Rubio’s callousness toward women who want to abort a pregnancy resulting from rape, they may have legitimized the idea that a pre-viability abortion ban with the exceptions Donald Trump supports might be permissible.

Similarly, while it is important to combat the racist stereotypes that animate proposed bans for race- and sex-selective abortion—it should be repeated that requiring any inquiry into a person’s reasons for a pre-viability abortion is flagrantly unconstitutional.

Abortion opponents often try to frame 20-week bans as a moderate compromise. In fact, they are advocating for a radical departure from Roe and Casey’s viability rule.  The Court has been clear that departure will not be forthcoming. So it doesn’t matter if 20-week bans poll well—any pre-viability ban is unconstitutional.

But Democrats who are asked what’s wrong with banning abortion after 20 weeks often talk about health conditions and deference to a woman’s doctor. There is little use in explaining the reasons patients need later abortions to proponents of bans intended to vilify women who have them—that only perpetuates the idea that every possible policy is still up for debate because there are no constitutional boundaries.

And when Democrats, asked questions meant to paint them as extremists, fail to give a straight answer to whether abortion can be prohibited at any point in pregnancy, they miss the opportunity to give an apparently much-needed reminder that—say it with me—pre-viability bans are unconstitutional. In Hillary Clinton’s response to Rubio’s claim that she supports abortion being legal “on the baby’s due date,” for example, Clinton said Rubio should know Roe has guidelines. She didn’t, however, say what they are: A woman has the right to end a pregnancy before viability or if it endangers her health. States can prohibit abortions after viability, and most of them do. That is not to say they should. The idea that women wait until the third trimester to abort healthy pregnancies is a myth; women prefer to have very early abortions, and third-trimester abortions are generally unavailable because only a handful of doctors provide them.

Leading Democrats should not have trouble answering questions about abortion. Democratic National Committee Chair Debbi Wasserman Schultz, who has wrung her hands about young women not understanding the importance of Roe, would do well to make sure she can answer ridiculous questions about “abortions at eight months” with Roe basics herself. That would also be preferable to Nancy Pelosi debating what “abortion on demand” means and whether she supports it. When abortion opponents raise the specter of later abortions to shame women, Democrats should tell them states are constitutionally free to ban post-viability abortions that almost no one is having.

When we can’t explain as basic a rule as “no pre-viability bans,” we invite abortion opponents to move the goalposts. One prominent advocate for gradually re-criminalizing abortion (but who claims to be a moderate) argued in the Los Angeles Times that a law banning abortion at 20 weeks might withstand constitutional scrutiny if it also mandated paid maternity leave, because that would make the pregnancy less burdensome. That is an extremely audacious twisting of Casey, which allowed states to enact laws aimed at persuading a woman to carry to term so long as they do not impose an “undue burden” on those seeking an abortion, but was perfectly clear that she has the right to one before viability. The test is whether a restriction makes it unduly burdensome for a woman to get the abortion she is entitled to, not whether it would unduly burden her to be forced by the government to carry to term.

3. Casey‘s “undue burden” standard is a meaningful protection of abortion rights when courts apply it properly

Casey changed the standard courts use to determine when an abortion restriction short of a ban is unconstitutional—it did not “kill” Roe. Saying so helps savvy anti-choicers portrays the doctrine protecting abortion as weaker than it is and emboldens legislators to pass blatantly unconstitutional laws.

Casey replaced Roe’s trimester framework, which set out different standards for what restrictions are permissible by trimester, with the “undue burden” standard. Under Casey, the government may try to promote potential life from the outset of pregnancy—but only by trying to influence a woman’s decision, not by trying to hinder her once she has made it. A law with the purpose or effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion is “an undue burden” on her right and thus unconstitutional.

The provisions of the Texas abortion law challenged in the U.S. Supreme Court case to be decided any day now, Whole Woman’s Health v. Hellerstedt, are clearly unconstitutional; the law requires all abortions to be performed in hospital-like facilities by doctors with hospital admitting privileges. The idea that such provisions are meant to protect women rather than make getting an abortion more difficult and expensive doesn’t pass the laugh test, and the decision of the Fifth Circuit Court of Appeals upholding them is an outlier. Other courts have assessed the evidence and determined that they have no medical benefit—and, thus, the burdens they impose are “undue.”

But in the run-up to Whole Woman’s Health, too many abortion rights supporters have suggested the undue burden standard is toothless, essentially echoing anti-abortion advocates and a rogue appeals court engaged in an obvious attack on the Supreme Court’s precedent. Rather than encouraging the idea that no burden is “undue” unless it is “insurmountable,” abortion rights supporters should embrace an interpretation of the term more consistent with its meaning in the English language, as the majority of courts have. In an opinion striking down Wisconsin’s admitting privileges requirement, Judge Richard Posner of the Seventh Circuit Court of Appeals explained a burden is undue if it is “disproportionate or gratuitous.” Even a slight burden resulting from a medical regulation with no medical benefit is undue. Abortion rights supporters should not indulge the idea that shutting down 75 percent of the clinics in Texas might not be.

This matters because public understanding of the law puts pressure on courts and legislators to uphold it. We have to know our rights if we want them to be protected.