House Will Take “Up or Down” Vote on Stupak Amendment, Threatening Women’s Rights

Jodi Jacobson

House Democratic leaders will allow an up-or-down vote on an amendment blocking any money in its healthcare overhaul from funding abortions, risking the votes of members who support abortion rights.

House Democratic leaders will allow an up-or-down vote on the Stupak/Pitts amendment, which seeks to block even private insurance plans from funding abortion care.

In other words, this amendment, if passed and included in a final health reform bill, would block you from getting insurance to cover legal procedures in the United States of America, with premiums paid with your personal funds. Planned Parenthood, NARAL Pro-Choice America, the National Women’s Law Center and other groups are calling for immediate action against the amendment, and you can click here to find your representative and tell them to vote no on Stupak.

The amendment, named for Congressman Bart Stupak (D-Michigan) and Conressman Joe Pitts (R-PA).  Stupak is a so-called
"Democrat for Life;" Pitts has been a dogged supporter of failed abstinence-only policies, domestically and internationally and was among those who succeeded in language forbidding provision of contraceptive supplies for HIV-positive women in US global AIDS funding.

The agreement to vote on the Stupak/Pitts amendment came after 1:00 am this morning
when an effort to adopt compromise language crafted by
Congressman Brad Ellsworth apparently was rejected by Stupak and his
supporters.  We reported on the Ellsworth Amendment here.  Rejection of
the Ellsworth Amendment makes clear the agenda of Stupak’s amendment is
to ban abortion care in private insurance plans, because Ellsworth
provided numerous protections against the use of federal funds for
abortions other than those for rape, incest, and danger to the life of
the mother, for all of which the law now allows federal funding.

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The Hill reports that:

Liberals on the committee
threatened to vote against the final healthcare bill if it included
Stupak’s language, warning that it would be a return to the days of
back-alley abortions. 

 

“I forsee a return to the dark ages,” Alcee Hastings (D-Fla.), told the Hill. “I’m 73, I’ve seen these dark things, they use
these coat hangers and die.”

“I
used to think that life was black or white, but the older I get the
most gray it becomes,” liberal Rep. Jim McGovern (D-Mass.) told the
panelists of the House Rules committee as they debated whether to allow the amendment.

“I find this amendment very, very uncomfortable.”

Having successfully made birth control "too controversial for health reform," Stupak, working with other "Dems for Life," the now unabashedly ultra-right Republican party and the US Conference of Catholic Bishops threatened to block passage of the health reform bill unless he got his way on the vote.  His efforts are backed up by a massive organizing effort undertaken by the Catholic Bishops to mobilize ultra conservative Catholics throughout the country.  More than 85 percent of Catholics in the United States use birth control, and Catholic women have abortions at the same rate as women in the general population.

Women’s rights advocates, including the Speaker and a majority of the
Democratic caucus, support a provision in the healthcare bill that
would subsidize abortions for poor women who can’t afford them, in keeping with current law.

“Rep.
Stupak’s proposal to codify the Hyde amendment in health care reform
would force women who want comprehensive reproductive health care
coverage to purchase a separate, single-service rider," said Cecile Richards, President of Planned Parenthood Federation of America.

Such an
‘abortion rider,’ whereby abortion care could only be covered by a
single-service plan in the exchange, is discriminatory and illogical.
Women do not plan to have unintended pregnancies or medically
complicated pregnancies that require ending the pregnancy. In fact,
about half of all pregnancies in the U.S. are unintended, and abortion
is not something that women plan to insure against.  As a result, an
‘abortion rider’ policy is unworkable.  Women would not choose to
purchase it, and would subsequently be unable to obtain the care they
need.  Proposing a separate ‘abortion rider’ represents exactly the
type of government interference in the health care marketplace that
conservatives purport to vehemently oppose.

 

For these and other reasons, “Planned Parenthood strongly opposes the Stupak/Pitts amendment which would result in women losing health benefits they have today," said Richards in a statement released early this morning.

This amendment would violate the spirit of health care reform, which is meant to guarantee quality, affordable health care coverage for all, by [instead] creating a two-tiered system that would punish women, particularly those with low and modest incomes. Women won’t stand for legislation that takes away their current benefits and leaves them worse off after health care reform than they are today.

While Rep. Stupak claims that his amendment simply applies the Hyde amendment to health reform, nothing could be farther from the truth. 


In fact, "the
Stupak/Pitts amendment would result in a new restriction on women’s
access to abortion coverage in the private health insurance market," continued Richards, "undermining the ability of women to purchase private health plans that
covers abortion, even if they pay for most of the premium with their
own money.
"

On Friday, House Energy
and Commerce Chairman Henry Waxman (D-Calif.) said passing Stupak’s
legislation could jeopardize passage of the bill, because
abortion-rights supporters were likely to vote against a bill that
includes it.

BACKGROUND on STUPAK/PITTS AMENDMENT:

The Stupak/Pitts amendment would:

  • Prohibit individuals who receive the affordability tax credits from purchasing a private insurance plan that covers abortion, despite the fact that a majority of health insurance plans currently cover abortion.

  • Result in a de facto ban on private insurance companies providing abortion coverage in the health insurance exchange, since the vast majority of participants would receive affordability tax credits.

  • Prohibit the public option from providing abortion care, despite the fact that it would be funded through private premium dollars.



The current compromise in the bill, the Capps Amendment, already strikes the right balance between pro-choice and anti-choice interests.


  • It stipulates that health plans cannot be mandated to cover abortion, but they can choose to.

  • If a plan chooses to cover abortion, the compromise stipulates that no federal funds can go towards abortion, consistent with current federal policy.

  • It ensures state laws regarding abortion coverage are not pre-empted, so if states want to pass further restrictions on abortion coverage, they can.  This a significant win for anti-choice organizations.

  • Protects conscience rights of health care providers and facilities.


The following is a list of editorials in major newspapers that have opposed Stupak/Pitts and similar proposals:

An editorial in USA Today (11/2/09):
“[The Stupak amendment] goes too far. It would mark a broad new expansion in the effort to restrict access to abortion. Nearly 90% of private health insurance policies now offer abortion coverage, and almost half of women with private insurance have it. But women covered under the new system would have to find supplemental insurance or pay out of pocket for an unanticipated procedure that can cost from hundreds to tens of thousands of dollars, depending on complexity. For anyone unable to afford it, this would amount to a de facto ban.”
[
An editorial in the New York Times said (10/1/09):
“Conservative critics of pending reform bills want to prohibit the use of tax subsidies to buy any health insurance policy that covers abortion. Some want to require women to buy an extra insurance “rider” if they want abortion coverage, an unworkable approach given that almost no one expects to need an abortion, few women would buy the rider and, therefore, few insurance companies would even offer it.”

An editorial in the LA Times said (11/6/09):
“The real goal of abortion opponents isn’t to maintain the status quo. It’s to extend federal prohibitions into private pocketbooks. By restricting coverage offered through the exchange, they hope to make abortion coverage so unattractive that insurers eventually stop offering it in the market for individual and small-group policies.”

An editorial in The St. Petersburg Times said (11/5/09):
“Contrary to the claims of Rep. Bart Stupak, D-Mich., who has been leading the antiabortion effort, the Capps amendment would not expand federal funding for abortion. Instead it would establish some basic principles to reflect the current health insurance landscape in which nearly 90 percent of private plans offer abortion coverage.“

Analysis Politics

The DeVos Family: Promoting Conservative Religious Values Through Political Donations

Ally Boguhn

The DeVos family has thrown millions of dollars toward financing Senate races across the country involving vulnerable Republicans who support their issues; funding crisis pregnancy centers (CPCs) that lie to patients about pregnancy, abortion, and other health concerns; and lining up support for so-called religious liberties measures.

When you think about “money in politics,” the Kochs, the Mercers, the Coorses, or the Wilksesall of whom have made names for themselves funding conservative causes across the country—may come to mind.

You may be less likely to think about the DeVos family: religious conservatives in Michigan who for decades have helped funnel money into influential political battles, including local races, ballot measures, presidential elections, and key congressional contests in other states.

The DeVos family has thrown millions of dollars behind the causes and politicians they support. That means financing Senate races across the country involving vulnerable Republicans who support their issues; funding crisis pregnancy centers (CPCs) that lie to patients about abortion and other health concerns; fighting against marriage equality; and lining up support for so-called religious liberties measures.

In a January report highlighting donors “you’ve never heard of” who stand to make the biggest impact on this year’s upcoming election, the Hill’s Jonathan Swan and Harper Neidig featured the DeVoses’ almost unparalleled influence in conservative politics.

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“Over the course of 2015, no family in conservative politics donated more hard dollars to political campaigns than the DeVoses,” reported Swan and Neidig. Richard DeVos, the family’s billionaire patriarch, built his fortune as a co-founder of direct-selling franchise Amway; he is also the owner of the NBA’s Orlando Magic team. “An analysis by The Hill shows that members of the DeVos family donated $964,000 in hard dollars to Senate and House campaigns and to Republican Party committees at both the state and national level. This spending easily surpasses the $97,000 in hard dollars from the Koch family and $72,000 from the Coorses—two other major conservative donor families.”

The DeVoses’ commitment to the Republican Party runs deep. Among their numerous political ties, Richard DeVos acted as the finance chair of the Republican National Committee (RNC) in the 1980s; Betsy DeVos, who is married to Richard’s son Dick DeVos, was the chair of the Michigan Republican Party and finance chair of the National Republican Senatorial Committee; and her husband Dick took on a self-funded failed gubernatorial bid in Michigan in 2006 that cost the family more than $35 million.

In a phone interview with Rewire, Denise Roth Barber, managing director of the nonpartisan National Institute on Money in State Politics, explained that for families like the DeVoses, donations are often made to foster eventual relationships with politicians. “In general we all understand that contributions are made as an investment and that they’re hoping at the very least to have access to the candidates once they win so that they can discuss policies,” Roth Barber explained.

A search of the National Institute on Money in State Politics’ database, FollowTheMoney.org, reveals that the DeVos family has given $52.5 million to candidates and committees across the country since 2000, according to state data. However, Roth Barber noted that the family’s influence could extend beyond these reported direct donations. “There are so many other ways to influence and to … spend money politically besides direct donations to ballot measures, campaigns, and party committees …. So when we are looking at this we know that this is just one portion of their money. It’s not everything.”

In her book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, Jane Mayer explained that one of the ways the DeVoses have pushed their political influence beyond direct donations has been by putting hundreds of millions of dollars behind building a conservative movement.

“Starting in 1970, they began to direct at least $200 million into virtually every branch of the New Right’s infrastructure, from think tanks like the Heritage Foundation to academic organizations such as the Intercollegiate Studies Institute, which funded conservative publications on college campuses,” Mayer wrote.  

In a 1997 guest column for Capitol Hill publication Roll Call denouncing campaign finance regulations, Betsy DeVos admitted outright that she and her family used their money in order to buy influence.

“I know a little something about soft money, as my family is the largest single contributor of soft money to the national Republican Party,” wrote DeVos, according to Mayer. “I have decided, however, to stop taking offense at the suggestion that we are buying influence. Now I simply concede the point. They are right. We do expect some things in return. We expect to foster a conservative governing philosophy consisting of limited government and respect for traditional American values.”

Much of the DeVos family’s donations have gone toward helping to fund the politicians and the conservative organizations behind anti-choice and other conservative measures in their home state of Michigan. “With donations to state legislators and Gov. Rick Snyder, the DeVos family—via the Michigan Family Forum and Michigan Right to Life, which they help to fund—were able to pass Michigan’s ‘rape insurance’ law, requiring women to buy a separate insurance rider for abortion to be covered, even in cases of rape and incest,” explained NARAL Pro-Choice America in a 2015 memo, referring to the 2013 Abortion Insurance Opt-Out Act.

The family did indeed play a role in helping to elect Michigan Gov. Snyder, who has signed additional pieces of anti-abortion legislation, such as a 2012 anti-choice “super-bill” banning telemedicine abortion in the state and enacting what advocates called “coercion screenings” on those seeking the procedure. Snyder, more recently, has come under fire for mishandling the water crisis in Flint. Snyder was re-elected after “significant national involvement in the Michigan gubernatorial campaign” from the Republican Governors Association (RGA), according to the Michigan Campaign Finance Network, which also found that the DeVos family was among Michigan’s top donors to the RGA during the 2014 election cycle. The DeVoses gave another $122,430 directly to Rick Snyder for Governor.

Their donations have also helped other local anti-choice politicians get elected, including state Sen. Tom Casperson (R-Escanaba), who has sponsored measures such as “Choose Life” license plate legislation to help fund CPCs and who introduced a ban on a common abortion procedure this January, and state Sen. Darwin Booher (R-Evart), who has co-sponsored laws targeting Michigan abortion providers.

Although in recent years they seem to have largely flown under the radar outside of their home state, the DeVoses’ penchant for funding ultra-conservative causes and politicians hasn’t gone completely unnoticed. In 2012, members of the LGBTQ community called for a boycott of the family’s Amway company and its affiliates after news broke that the DeVoses had donated $500,000 to anti-marriage equality organization National Organization for Marriage (NOM).

An analysis released in February 2015 by Common Cause, a nonpartisan watchdog organization, named the DeVos family as one of the “major funders of the Religious Right,” finding that since 1998, the family gave more than $6.7 million to Focus on the Family (FoF)​—the same group that spent nearly $3 million in 2010 to fund an anti-abortion ad featuring football player and known conservative poster boy Tim Tebow during the Super Bowl​—through two of their family foundations. FoF spends millions each year to promote its anti-choice and anti-LGBTQ extremism, including promoting the passage of religious freedom restoration acts (RFRA).

NARAL similarly featured the DeVoses in its memo outlining the families that fund the “March for Life” and the larger anti-choice movement. NARAL’s research found that the DeVoses have spent millions of dollars funding right-wing organizations through direct donations as well as donations to “pass-through organizations” that help funnel money to conservative groups, think tanks, and other organizations, largely without the oversight of the Federal Election Commission (FEC)​. The DeVoses’ family charity gave $6.5 million total in 2009, 2010, and 2012 to DonorsTrust, one of these “pass-through” organizations that in turn has donated to FoF and other conservative groups such as Americans United for Life, which provides model anti-choice legislation for states looking to restrict access to reproductive health care.

In 2011, the DeVos family gave $3 million to the Americans for Prosperity Foundation, the nonprofit arm of the Koch-backed organization, through an unrestricted grant. As Adele Stan reported for Rewire, the Americans for Prosperity advocacy arm spent millions of dollars in the 2012 elections—and nearly all of that money was spent supporting anti-choice candidates.

Further analysis of the family’s giving shows that their opposition to abortion also prompted the DeVoses to give millions to conservative causes such as CPCs and other anti-choice organizations through their family foundations.

Between 1998 and 2013, two of the family’s charitable organizations—the Dick and Betsy DeVos Foundation and the DeVos Urban Leadership Initiative (formerly the Richard and Helen DeVos Foundation)—have given more than $1.1 million in unrestricted grants to a single CPC in Grand Rapids, Michigan, the Pregnancy Resource Center, which bills itself as a “life-affirming” clinic.

In these same years, the organizations donated heavily to the Right to Life Michigan Educational Fund, giving the group over $1.6 million in unrestricted grants. Another $15,000 was given to Baptists for Life.

The family is also a big supporter of the Heritage Foundation, a conservative think tank home to the Richard and Helen DeVos Center on Religion and Civil Society, established in 2004 after a $1.8 million grant from the DeVoses. The center was created “as a way to improve public discourse on these issues and to integrate serious reflection on the role of family, religion, and civil society across policy areas,” according to Heritage’s website. Its analysts have taken hardline stances advocating for Planned Parenthood to be defunded, opposing marriage equality, and arguing in favor of RFRA-related protections.

Perhaps just as significant have been the family’s donations during elections, particularly in recent years. During the 2012 election alone, 15 members of the family donated to primarily conservative political candidates, totaling over $1.4 million in funding. The family’s Amway company and its parent company, Alticor Inc., contributed another $1.07 million in that election cycle to candidates, PACs, committees, and outside spending groups.

The next year, after their home state of Michigan instated a new law doubling campaign contribution limits, nine members of the family gave a total of $700,000 to the state house and senate Republican caucuses in just two days. Between January 1, 2013 and December 31, 2014, the DeVos family gave $2.3 million to the Michigan Republican Party.

Analysis of the DeVoses’ spending in the 2016 campaign cycle conducted by Rewire using Center for Responsive Politics’ OpenSecrets.org database found that many members of the family have already donated the maximum amounts allowable by law under the FEC’s contribution limits, the majority going to vulnerable candidates across the country whose Senate seats are key to maintaining a Republican majority.

The FEC allows individual contribution limits of no more than $2,700 per person per election, and at least eight members of the DeVos family contributed the maximum allowable amount to Sen. Kelly Ayotte (R-NH), Sen. Rob Portman (R-OH), Sen. Richard Burr (R-SC), Sen. Pat Toomey (R-PA), and Sen. Mark Kirk (R-IL).

For many of these vulnerable incumbents, their anti-choice positions are a key point in their conservative platforms. In December 2015 the Associated Press predicted that abortion would play a major role in Senate races in many of the same states the DeVoses are funding conservative candidates, including New Hampshire, Pennsylvania, Wisconsin, and Ohio.

This comes as no surprise, given that several of these same Republicans have a long history of pushing their extreme anti-choice views. Sen. Portman, who is running for re-election in Ohio, for example, touts on his campaign website his 100 percent rating from anti-choice group National Right to Life, his 77-0 voting record in favor of anti-choice measures, and his record co-sponsoring medically unsubstantiated fetal pain legislation in the Senate.

New Hampshire Sen. Kelly Ayotte, meanwhile, has championed so-called religious liberties at the expense of reproductive health care, seemingly a pet issue of the DeVoses given that Amway/Alticor has lobbied for related measures. Ayotte lauded the Supreme Court’s decision in Hobby Lobby allowing some employers to deny their staff insurance coverage for contraceptives with which they disagree on religious grounds, writing in a statement that “Americans shouldn’t be forced to comply with government mandates that violate core principles of their faith.” Ayotte also co-sponsored the Blunt Amendment, which would have limited the Affordable Care Act’s contraception mandate by allowing employers and insurers to deny contraceptive coverage and other care they disagreed with for “moral reasons.” 

At least nine members of the family have also given $10,000 (the largest an individual is allowed to donate to to a state or local party committee) directly to the Republican Party of Michigan this election cycle. The RNC is another major recipient of DeVos dollars, receiving over $1.1 million from the family in 2015 and maxing out contributions for many of the family members. The Republican Senatorial Committee received maximum donations of $33,400 from nine members of the family, totaling over $300,000.

Thus far, the family seems to be hedging its bets on which presidential candidate to back, and donations of various sizes have been made toward several Republicans who have already dropped out of the race, including Carly Fiorina, Marco Rubio, and Jeb Bush. John Kasich has also received a handful of direct donations.

With hundreds of thousands of dollars already directly invested in conservative politicians nationwide, the DeVoses’ financial contributions in 2016 mean the family could be buying up access to elected officials across the country. Given their stringent devotion to the causes pushed by the religious right, that influence could be a cause for concern.

Commentary Law and Policy

Is One-Sixth a ‘Large Fraction’ When It Comes to Our Constitutional Rights?

David S. Cohen & Jeffrey B. Bingenheimer

When the Supreme Court hears oral arguments Wednesday in Whole Woman’s Health v. Hellerstedt, the most important abortion case before the Supreme Court in more than two decades, the resolution of the case may just come down to how the justices regard that fraction.

Read more of our coverage of ​Whole Woman’s Health v. Hellerstedt​ here.

This article is based on a new study published in the University of Pennsylvania Law Review Online

If we told you that one-sixth of pregnancies in the United States would result in the death of the pregnant person, would you consider that number a large fraction?

How about if one-sixth of your life savings were wiped away in a banking error? Would you think one-sixth was a large fraction then?

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When the Supreme Court hears oral arguments Wednesday in Whole Woman’s Health v. Hellerstedt, the most important abortion case before the Supreme Court in more than two decades, the resolution of the case may just come down to how the justices regard that fraction.

At issue in the case is a Texas law that, among other provisions, would require doctors who perform abortions to have admitting privileges at local hospitals and require abortion clinics to meet the exacting requirements of ambulatory surgical centers. If the law is allowed to go into effect, advocates say, all but nine or ten of the state’s abortion clinics will close. About 900,000 Texas women of reproductive age would have to travel more than 150 miles each way in order to reach one of those remaining clinics. With about 5.4 million women of reproductive age in the state, that would mean one-sixth of Texas’ women would face a serious obstacle in obtaining an abortion.

Why does it matter what fraction of women are affected? In a line of cases starting with Planned Parenthood v. Casey in 1992, the Supreme Court and other federal courts have ruled that an abortion restriction will be found unconstitutional if it constitutes an “undue burden” on a woman’s right to choose. The Court explained further that an undue burden exists when the law is a substantial obstacle for a “large fraction” of people who are subject to that restriction.

Casey involved a Pennsylvania law that would have required married women to notify their husbands before they got an abortion. The Court reasoned that this provision only really affected women who were not in trusting relationships with their husbands. Based on the evidence before the Court, many of those women were in abusive relationships—so for an unspecified large fraction of them, requiring them to tell their husbands would be a substantial obstacle. Thus, this part of the law was struck down as unconstitutional.

In Whole Woman’s Health, however, the Fifth Circuit Court of Appeals upheld the law, concluding that one-sixth is “nowhere near” a large fraction; in a separate case, the same court ruled that a restriction that does not fall on the “vast majority” of women can never be a large fraction. Whether the Supreme Court agrees with the Fifth Circuit on this issue could very well determine the outcome of Whole Woman’s Health.

So is one-sixth a large fraction? We considered this question in a new study we published in the University of Pennsylvania Law Review. In it, we argue that the Fifth Circuit ignored the common understanding of one-sixth and the concept “large fraction.” The Supreme Court needs to take this study’s findings into consideration.

In our study, we distributed an online questionnaire (which you can take at the link) to potential respondents through Amazon’s Mechanical Turk system. The questionnaire included a few questions about respondents’ demographic characteristics and political orientation. Of primary interest, however, were 12 scenarios that we asked respondents to read. Each scenario featured the fraction one-sixth, and after each, we asked respondents, “In this scenario, do you consider one-sixth to be a large fraction?” Respondents could answer “yes” or “no.” We randomized the order in which the scenarios were presented.

We ended up with a sample of 504 individuals. The sample was heterogeneous: 76 percent of participants self-identified as white, 9 percent Asian or Pacific Islander, 7 percent African-American, 3 percent Hispanic or Latino, and 5 percent mixed-race or other. Fifty-seven percent of respondents were male. They ranged in age from 18 to 76 years, with almost 70 percent being between 25 and 44 years old. What did we find?

First, it is easy to invent hypothetical scenarios in which the vast majority of people will describe one-sixth as a large fraction. When presented with a scenario in which one-sixth of tablets in a bottle of Tylenol were laced with the poison cyanide, 91 percent of respondents reported that one-sixth was a large fraction. When the scenario involved your boss requiring you to donate one-sixth of your take-home pay to her daughter’s elite private school, 93.5 percent of respondents did so.

Second, we found that changing key elements of otherwise similar scenarios can result in large differences in the proportion of respondents who described one-sixth as a large fraction. For example, we presented two scenarios, each of which involved a local business with 100 employees working at its main office. In one scenario, we said that the employees normally arrive on time, but that one day, one-sixth of them arrived to work late. In the alternate scenario, we said that one-sixth of employees of that business were killed one day in separate individual car accidents. When the scenario involved employees being late, only 28 percent of respondents described one-sixth as a large fraction; when it involved employees being killed in car accidents, fully 92 percent did so. Clearly, whether one-sixth is a large fraction depends heavily upon the baseline expectation in the scenario in which it is presented.

We also presented two politically charged scenarios, and examined how respondents’ tendency to describe one-sixth as a large fraction in these scenarios depended upon their own political orientation. One scenario mirrored closely the law at issue in Whole Woman’s Health: A state enacts a law that forces abortion clinics to close, and as a result, one-sixth of women of reproductive age would have to travel 150 miles or more to get to a clinic that remained open. A companion scenario involved a state law that forced gun stores to close, leaving one-sixth of the state’s adult residents 150 miles or more away from a gun store that remained open. Overall, 76 percent of respondents agreed that one-sixth was a large fraction in the abortion clinic scenario, whereas 52 percent did so in the gun store scenario.

What was most interesting, however, was how these responses varied according to respondents’ political orientation. We asked respondents to place themselves along a five-point scale, from very conservative to very liberal. In the abortion clinic scenario, 88 percent of people who described themselves as very liberal, compared to 48 percent of people who described themselves as very conservative, agreed that one-sixth was a large fraction. The pattern was reversed in the gun store example: 38 percent of people who said they were very liberal, versus 62 percent who said they were very conservative, described one-sixth as a large fraction in that scenario. 

Screen Shot 2016-02-29 at 9.58.52 AM

These results would not be surprising to a linguist. The adjective “large” has no absolute meaning, and becomes meaningful only in relation to a comparison group or baseline set of expectations. The basketball player Manute Bol is a large person, compared to other people, or even other NBA players. But a redwood tree of the same size would be considered small, and a planet the size of Manute Bol would be … not a planet at all.

What does all of this mean for Whole Woman’s Health? The Court has never specified what exactly a “large fraction” is under the Casey test, so the everyday English understanding of the phrase matters. With that in mind, the Fifth Circuit’s claims—that only a “vast majority” can count as a “large fraction” and that one-sixth “nowhere near” qualifies—is clearly at odds with common usage.

As our questions about political orientation indicate, the Supreme Court justices should be particularly careful to not to use superficial arguments to provide intellectual cover for their own moral beliefs or political views about abortion.

In its consideration of the case, the Court must provide a more sophisticated analysis that recognizes not only that one-sixth clearly can be a large fraction in some scenarios, but also that the determination has much to do with assumed expectations and values. In particular, if the justices value a woman’s constitutional right to choose to have an abortion, then one-sixth should be seen as a large fraction—because our baseline expectation should be that few people have their constitutional rights denied.