(VIDEO) The Science on “Fetal Personhood” Hasn’t Changed Since Roe

Lynn Paltrow

Claims of PersonhoodUSA and others that Roe was decided without the benefit of medical and scientific knowledge on fetal development are simply not true.

This article is published as part of a series by Rewire and our colleagues in observance of the 37th anniversary of the Supreme Court decision on Roe v. Wade.

According to PersonhoodUSA, one of the reasons Roe v. Wade was wrongly decided is that the Court did not have available to it the “well-known facts of fetal development.”

To explain, PersonhoodUSA is an organization that seeks to establish new laws declaring full constitutional rights for the “unborn” from the moment of fertilization. Roe v. Wade is the name of the 1973 U.S. Supreme Court decision that recognized a woman’s fundamental right to choose abortion. According to PersonhoodUSA, “The science of fetology in 1973 was not able to prove, as it can now, that a fully human and unique individual exists at the moment of fertilization. . ..”

Today, on the thirty-seventh anniversary of Roe v. Wade, we thought it would be valuable to fact check that claim. What we found is that extremely similar claims about new science were, in fact, made to the Supreme Court when the case was being argued in 1971, 1972, and 1973. For example, in the written arguments to the court (called briefs) defending Texas’ anti-abortion law, lawyers for the State of Texas described in extraordinary detail “how clearly and conclusively modern science – embryology, fetology, genetics, perinatology, all of biology – establishes the humanity of the unborn child.” More than twenty-four pages of the State’s brief defending the Texas statute outlawing abortion were devoted to the argument that “medical science” established the need for such a law. An amicus (friend of the court) brief, filed in support of the Texas law by “certain physicians, professors and fellows of the American College of Obstetrics and Gynecology,” made the same argument.

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Just to be absolutely sure the U.S. Supreme Court Justices didn’t miss this point, the main brief and the amicus brief both included ten pages of photographs of actual fetal development. And, when it came time for the 1972 oral argument in the case, Texas Assistant Attorney General Robert C. Flowers didn’t forget to mention that “medical research” supported the law banning abortion. So the claim that Roe v. Wade was decided without the benefit of medical research and scientific knowledge concerning fetal development is simply not true.

Of course there have been important scientific developments in the last thirty-seven years. But the fact is, that “new” science can’t provide the basis for overturning Roe v. Wade. This is because no science changes what attorney Janet Gallagher calls the geography of pregnancy. Because pregnancy takes place within a woman’s body, there is no way to assign to fetuses separate legal rights without depriving pregnant women of their rights. That is why the Supreme Court refused to accept the argument that fetuses are separate legal persons. To have done otherwise would have created unprecedented law depriving women, upon becoming pregnant, of their fundamental rights – to bodily integrity, informed medical decision-making, due process, liberty, and life itself.

Thus, while Roe left states free to value and advance potential life in a variety of ways, the decision prohibited states from using fetal personhood as a basis for banning all abortions. This decision also prevented states from, for example, forcing a pregnant woman to undergo cesarean surgery, arresting her to stop her from having a home birth, or detaining her to make sure she follows her doctor’s advice to get bed rest.

Roe v. Wade stands for much more than the right to terminate a pregnancy. As the Supreme Court explained in later cases, Roe has been “sensibly relied upon to counter” attempts to interfere with a woman’s decision to become pregnant or to carry her pregnancy to term. Nearly one million women each year terminate their pregnancies, close to another million experience miscarriages and stillbirths, and more than four million women continue their pregnancies to term. Whatever PersonhoodUSA may claim about advances in the “science of fetology,” it can’t change the fact that each and every one of these women benefits from the Supreme Court’s decision in Roe v. Wade.

Analysis Politics

Anti-Choice Democrats Employ ‘Dangerous,’ Contradictory Strategies

Ally Boguhn & Christine Grimaldi

Democrats for Life of America leaders, politicians, and rank-and-file supporters often contradict each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party's platform is newly committed to increasing abortion access for all.

The national organization for anti-choice Democrats last month brought a litany of arguments against abortion to the party’s convention. As a few dozen supporters gathered for an event honoring anti-choice Louisiana Gov. John Bel Edwards (D), the group ran into a consistent problem.

Democrats for Life of America (DFLA) leaders, politicians, and rank-and-file supporters often contradicted each other, and sometimes themselves, exposing a lack of coherent strategy at a time when the Democratic Party’s platform is newly committed to increasing access to abortion care for all.

DFLA leaders and politicians attempted to distance themselves from the traditionally Republican anti-choice movement, but repeatedly invoked conservative falsehoods and medically unsupported science to make their arguments against abortion. One state-level lawmaker said she routinely sought guidance from the National Right to Life, while another claimed the Republican-allied group left anti-choice Democrats in his state to fend for themselves.

Over the course of multiple interviews, Rewire discovered that while the organization demanded that Democrats “open the big tent” for anti-choice party members in order to win political office, especially in the South, it lacked a coordinated strategy for making that happen and accomplishing its policy goals.

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Take, for example, 20-week abortion bans, which the organization’s website lists as a key legislative issue. When asked about why the group backed cutting off abortion care at that point in a pregnancy, DFLA Executive Director Kristen Day admitted that she didn’t “know what the rationale was.”

Janet Robert, the president of the group’s executive board, was considerably more forthcoming.

“Well, the group of pro-life people who came up with the 20-week ban felt that at 20 weeks, it’s pretty well established that a child can feel pain,” Robert claimed during an interview with Rewire. Pointing to the U.S. Supreme Court’s ruling in Roe v. Wade, which protected the right to legal abortion care before the point of fetal viability, Rogers suggested that “more and more we’re seeing that children, prenatal children, are viable around 20 to 22 weeks” of pregnancy.

Medical consensus, however, has found it “unlikely” that a fetus can feel pain until the third trimester, which begins around the 28th week of pregnancy. The doctors who testify otherwise in an effort to push through abortion restrictions are often discredited anti-choice activists. A 20-week fetus is “in no way shape or form” viable, according to Dr. Hal Lawrence, executive vice president of the American Congress of Obstetricians and Gynecologists.

When asked about scientific findings that fetuses do not feel pain at 20 weeks of pregnancy, Robert steadfastly claimed that “medical scientists do not agree on that issue.”

“There is clearly disagreement, and unfortunately, science has been manipulated by a lot of people to say one thing or another,” she continued.

While Robert parroted the very same medically unsupported fetal pain and viability lines often pushed by Republicans and anti-choice activists, she seemingly acknowledged that such restrictions were a way to work around the Supreme Court’s decision to make abortion legal.

“Now other legislatures are looking at 24 weeks—anything to get past the Supreme Court cut-off—because everybody know’s it’s a child … it’s all an arbitrary line,” she said, adding that “people use different rationales just to get around the stupid Supreme Court decision.”

Charles C. Camosy, a member of DFLA’s board, wrote in a May op-ed for the LA Times that a federal 20-week ban was “common-sense legislation.” Camosy encouraged Democratic lawmakers to help pass the abortion ban as “a carrot to get moderate Republicans on board” with paid family leave policies.

Robert also relied upon conservative talking points about fake clinics, also known as crisis pregnancy centers, which routinely lie to patients to persuade them not to have an abortion. Robert said DFLA doesn’t often interact with women facing unplanned pregnancies, but the group nonetheless views such organizations as “absolutely fabulous [be]cause they help the women.”

Those who say such fake clinics provide patients with misinformation and falsehoods about abortion care are relying on “propaganda by Planned Parenthood,” Robert claimed, adding that the reproductive health-care provider simply doesn’t want patients seeking care at fake clinics and wants to take away those clinics’ funding.

Politicians echoed similar themes at DFLA’s convention event. Edwards’ award acceptance speech revealed his approach to governing, which, to date, includes support for restrictive abortion laws that disproportionately hurt people with low incomes, even as he has expanded Medicaid in Louisiana.

Also present at the event was Louisiana state Rep. Katrina Jackson (D), responsible for a restrictive admitting privileges law that former Gov. Bobby Jindal (R) signed into law in 2014. Jackson readily admitted to Rewire that she takes her legislative cues from the National Right to Life. She also name-checked Dorinda Bordlee, senior counsel of the Bioethics Defense Fund, an allied organization of the Alliance Defending Freedom.

“They don’t just draft bills for me,” Jackson told Rewire in an interview. “What we do is sit down and talk before every session and see what the pressing issues are in the area of supporting life.”

Despite what Jackson described as a commitment to the constitutionality of her laws, the Supreme Court in March blocked admitting privileges from taking effect in Louisiana. Louisiana’s law is also nearly identical to the Texas version that the Court struck down in June’s Whole Woman’s Health v. Hellerstedt decision.

Jackson did not acknowledge the setback, speaking instead about how such measures protect the health of pregnant people and fetuses. She did not mention any legal strategy—only that she’s “very prayerful” that admitting privileges will remain law in her state.

Jackson said her “rewarding” work with National Right to Life encompasses issues beyond abortion care—in her words, “how you’re going to care for the baby from the time you choose life.”

She claimed she’s not the only Democrat to seek out the group’s guidance.

“I have a lot of Democratic colleagues in my state, in other states, who work closely with [National] Right to Life,” Jackson said. “I think the common misconception is, you see a lot of party leaders saying they’re pro-abortion, pro-choice, and you just generally assume that a lot of the state legislators are. And that’s not true. An overwhelming majority of the Democrat state legislators in our state and others are pro-life. But, we say it like this: We care about them from the womb to the tomb.”

The relationship between anti-choice Democrats and anti-choice groups couldn’t be more different in South Dakota, said state house Rep. Ray Ring (D), a Hillary Clinton supporter at DFLA’s convention event.

Ring said South Dakota is home to a “small, not terribly active” chapter of DFLA. The “very Republican, very conservative” South Dakota Right to Life drives most of the state’s anti-choice activity and doesn’t collaborate with anti-choice Democrats in the legislature, regardless of their voting records on abortion.

Democrats hold a dozen of the 70 seats in South Dakota’s house and eight of the 35 in the state senate. Five of the Democratic legislators had a mixed record on choice and ten had a pro-choice record in the most recent legislative session, according to NARAL Pro-Choice South Dakota Executive Director Samantha Spawn.

As a result, Ring and other anti-choice Democrats devote more of their legislative efforts toward policies such as Medicaid expansion, which they believe will reduce the number of pregnant people who seek abortion care. Ring acknowledged that restrictions on the procedure, such as a 20-week ban, “at best, make a very marginal difference”—a far cry not only from Republicans’ anti-choice playbook, but also DFLA’s position.

Ring and other anti-choice Democrats nevertheless tend to vote for Republican-sponsored abortion restrictions, falling in line with DFLA’s best practices. The group’s report, which it released at the event, implied that Democratic losses since 2008 are somehow tied to their party’s support for abortion rights, even though the turnover in state legislatures and the U.S. Congress can be attributed to a variety of factors, including gerrymandering to favor GOP victories.

Anecdotal evidence provides measured support for the inference.

Republican-leaning anti-choice groups targeted one of their own—Rep. Renee Ellmers (R-NC)—in her June primary for merely expressing concern that a congressional 20-week abortion ban would have required rape victims to formally report their assaults to the police in order to receive exemptions. Ellmers eventually voted last year for the U.S. House of Representatives’ “disgustingly cruel” ban, similarly onerous rape and incest exceptions included.

If anti-choice groups could prevail against such a consistent opponent of abortion rights, they could easily do the same against even vocal “Democrats for Life.”

Former Rep. Kathy Dalhkemper (D-PA) contends that’s what happened to her and other anti-choice Democrats in the 2010 midterm elections, which resulted in Republicans wresting control of the House.

“I believe that pro-life Democrats are the biggest threat to the Republicans, and that’s why we were targeted—and I’ll say harshly targeted—in 2010,” Dahlkemper said in an interview.

She alleged that anti-choice groups, often funded by Republicans, attacked her for supporting the Affordable Care Act. A 2010 Politico story describes how the Susan B. Anthony List funneled millions of dollars into equating the vote with support for abortion access, even though President Obama signed an executive order in the vein of the Hyde Amendment’s prohibition on federal funds for abortion care.

Dalhkemper advocated for perhaps the clearest strategy to counter the narrative that anti-choice Democrats somehow aren’t really opposed to abortion.

“What we need is support from our party at large, and we also need to band together, and we also need to continue to talk about that consistent life message that I think the vast majority of us believe in,” she said.

Self-described pro-choice Georgia House Minority Leader Rep. Stacey Abrams (D) rejected the narratives spun by DFLA to supporters. In an interview with Rewire at the convention, Abrams called the organization’s claim that Democrats should work to elect anti-choice politicians from within their ranks in order to win in places like the South a “dangerous” strategy that assumes “that the South is the same static place it was 50 or 100 years ago.”

“I think what they’re reacting to is … a very strong religious current that runs throughout the South,” that pushes people to discuss their values when it comes to abortion, Abrams said. “But we are capable of complexity. And that’s the problem I have. [Its strategy] assumes and reduces Democrats to a single issue, but more importantly, it reduces the decision to one that is a binary decision—yes or no.”

That strategy also doesn’t take into account the intersectional identities of Southern voters and instead only focuses on appealing to the sensibilities of white men, noted Abrams.

“We are only successful when we acknowledge that I can be a Black woman who may be raised religiously pro-life but believe that other women have the right to make a choice,” she continued. “And the extent to which we think about ourselves only in terms of white men and trying to convince that very and increasingly narrow population to be our saviors in elections, that’s when we face the likelihood of being obsolete.”

Understanding that nuances exist among Southern voters—even those who are opposed to abortion personally—is instead the key to reaching them, Abrams said.

“Most of the women and most of the voters, we are used to having complex conversations about what happens,” she said. “And I do believe that it is both reductive and it’s self-defeating for us to say that you can only win if you’re a pro-life Democrat.”

To Abrams, being pro-choice means allowing people to “decide their path.”

“The use of reproductive choice is endemic to how we as women can be involved in society: how we can go to work, how we can raise families, make choices about who we are. And so while I am sympathetic to the concern that you have to … cut against the national narrative, being pro-choice means exactly that,” Abrams continued. “If their path is pro-life, fine. If their path is to decide to make other choices, to have an abortion, they can do so.”

“I’m a pro-choice woman who has strongly embraced the conversation and the option for women to choose whatever they want to choose,” Abrams said. “That is the best and, I think, most profound path we can take as legislators and as elected officials.”

Culture & Conversation Politics

Latino Votes Count or ‘Why Would They Be Trying to Suppress Them?’: Dolores Huerta on What’s at Stake in 2016

Ally Boguhn

“We know that we’ve had this problem that Latinos sometimes don’t vote—they feel intimidated, they feel like maybe their vote doesn’t matter,” Huerta told Rewire. Huerta encouraged people to consider both what is at stake and why their vote might be suppressed in the first place.

Republican nominee Donald Trump launched his campaign for president in June 2015 with a speech notoriously claiming Mexican immigrants to the United States “are bringing drugs, and bringing crime, and their rapists.”

Since then, both Trump’s campaign and the Republican Party at large have continued to rely upon anti-immigrant and anti-Latino rhetoric to drum up support. Take for example, this year’s Republican National Convention in Cleveland, where Sheriff Joe Arpaio—whose department came under fire earlier this year for racially profiling Latinos—was invited to take the stage to push Trump’s proposed 2,000-mile border wall. Arpaio told the Arizona Republic that Trump’s campaign had worked with the sheriff to finalize his speech.

This June, just a day shy of the anniversary of Trump’s entrance into the presidential race, People for the American Way and CASA in Action hosted an event highlighting what they deemed to be the presumptive Republican nominee’s “Year of Hate.”

Among the advocates speaking at the event was legendary civil rights leader Dolores Huerta, who worked alongside César Chávez in the farm workers’ movement. Speaking by phone the next day with Rewire, Huerta—who has endorsed Democratic nominee Hillary Clinton—detailed the importance of Latinos getting involved in the 2016 election, and what she sees as being at stake for the community.

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The Trump campaign is “promoting a culture of violence,” Huerta told Rewire, adding that it “is not just limited to the rallies,” which have sometimes ended in violent incidents, “but when he is attacking Mexicans, and gays, and women, and making fun of disabled people.”

Huerta didn’t just see this kind of rhetoric as harmful to Latinos. When asked about its effect on the country at large, she suggested it affected not only those who already held racist beliefs, but also people living in the communities of color those people may then target. “For those people who are already racist, it sort of reinforces their racism,” she said. “I think people have their own frustrations in their lives and they take it out on immigrants, they take it out on women. And I think that it really endangers so many people of color.”

The inflammatory rhetoric toward people of color by presidential candidates has led to “an alarming level of fear and anxiety among children of color and inflaming racial and ethnic tensions in the classroom,” according to an April report by the Southern Poverty Law Center (SPLC). The organization’s analysis of the impact of the 2016 presidential election on classrooms across the country found “an increase in bullying, harassment and intimidation of students whose races, religions or nationalities have been the verbal targets of candidates on the campaign trail.” Though the SPLC did not name Trump in its questions, its survey of about 2,000 K-12 educators elicited up more than 1,000 comments about the Republican nominee, compared to less than 200 comments mentioning other presidential candidates still in the race at that time.

But the 2016 election presents an opportunity for those affected by that violent rhetoric to make their voices heard, said Huerta. “The Latino vote is going to be the decisive vote in terms of who is going to be elected the president of the United States,” she continued, later noting that “we’ve actually seen a resurgence right now of Latinos registering to vote and Latinos becoming citizens.”

However, a desire to vote may not always be enough. Latinos, along with other marginalized groups, face many barriers when it comes to voting due to the onslaught of voter restrictions pushed by conservative lawmakers across the country—a problem only exacerbated by the Supreme Court’s 2013 ruling gutting portions of the Voting Rights Act (VRA) meant to safeguard against voter suppression efforts. The 2016 election season will be the first presidential election without those protections.

As many as 875,000 eligible Latino voters could face difficulty voting thanks to new restrictions—such as voter ID laws, proof of citizenship requirements, and shortened early voting periods—put into place since the 2012 elections, a May analysis from the National Association of Elected and Appointed Officials found.

When it comes to restrictions like this, Huerta “absolutely” saw how they could create barriers for those hoping to cast their ballot this year. “They’ve made all of these restrictions that keep especially the Latino population from voting. So it’s very scary,” said Huerta, pointing to laws in states like Texas, which previously had one of the strictest voter ID laws in the country. (The state has since agreed to weaken its law following a judge’s order).

“We know that we’ve had this problem that Latinos sometimes don’t vote—they feel intimidated, they feel like maybe their vote doesn’t matter,” Huerta went on.

Huerta encouraged people to consider both what is at stake and why their voting rights might be targeted in the first place. “What we have to think about is, if they’re doing so much to suppress the vote of the Latino and the African-American community, that means that that vote really counts. It really matters or else why would they be trying to suppress them?”

Appealing to those voters means tapping into the issues Latinos care about. “I think the issues [Latinos care about] are very, very clear,” said Huerta when asked how a presidential candidate could best appeal to the demographic. “I mean, immigration of course is one of the issues that we have, but then education is another one, and health care.”

A February survey conducted jointly by the Washington Post and Univision found that the top five issues Latino voters cared about in the 2016 election cycle were jobs and the economy (33 percent), immigration (17 percent), education (16 percent), health care (11 percent), and terrorism (9 percent).

Another election-year issue that could affect voters is the nomination of a U.S. Supreme Court justice, Huerta added. She pointed out the effect justices have on our society by using the now-decided Whole Woman’s Health v. Hellerstedt case as an example. “You know, again, when we think of the presidents, and we think of the Supreme Court and we know that [was] one of the issues that [was] pending in the Supreme Court … whether what they did in Texas … was constitutional or not with all of the restrictions they put on the health clinics,” she said.

Latinas disproportionately face large barriers to reproductive health care. According to Planned Parenthood, they “experience higher rates of reproductive cancers, unintended pregnancy, and sexually transmitted infections than most other groups of people.” Those barriers are only exacerbated by laws like Texas’ HB 2, as the National Latina Institute for Reproductive Health explained in its amicus brief in the Whole Woman’s Health case prior to the decision: “Texas Latinas already face significant geographic, transportation, infrastructure, and cost challenges in accessing health services.”

“H.B. 2’s impact is acute because of the day-to-day struggles many Latinas encounter when seeking to exercise their reproductive rights,” wrote the organization in its brief. “In Texas, there is a dire shortage of healthcare facilities and providers in predominantly Latino communities. Texas has the highest percentage of uninsured adults in the country, and Texas Latinos are more than twice as likely as whites to be uninsured …. Additionally, the lack of public and private transportation creates a major barrier to accessing health services, especially in rural areas.”

As Rewire’s Tina Vasquez has reported, for undocumented women, the struggle to access care can be even greater.

Given the threats cases like Whole Woman’s Health have posed to reproductive rights, Huerta noted that “Trump’s constant attacks and misogynist statements” should be taken with caution. Trump has repeatedly vowed to appoint anti-choice justices to the Supreme Court if elected.

“The things he says without even thinking about it … it shows what a dangerous individual he can be when it comes to women’s rights and women’s reproductive rights,” said Huerta.

Though the race for the White House was a top concern of Huerta’s, she concluded by noting that it is hardly the only election that matters this year. “I think the other thing is we have to really talk about is, the presidency is really important, but so is the Senate and the Congress,” said Huerta.

“We’ve got to make sure we get good people elected at every level, starting at school board level, city council, supervisors, commissioners, etc. state legislatures …. We’ve got to make sure reasonable people will be elected, and reasonable people are voted into office.”

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