Weekly Pulse: Nebraska’s Sweeping Abortion Ban on Collision Course with Supreme Court

Lindsay Beyerstein

Yesterday, Nebraska’s Republican governor signed a sweeping new law that criminalizes almost all abortions after 20 weeks’ gestation and another bill which forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.

Yesterday, Nebraska’s Republican governor Dave Heineman signed a sweeping new law that criminalizes almost all abortions after 20 weeks’ gestation and another bill that forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.

Intimidating providers

Monica Potts of TAPPED explains that the laws are meant to have a chilling effect on all abortion providers in Nebraska. In the wake of last year’s assassination of Kansas abortion provider Dr. George Tiller, Dr. LeRoy Carhart of Nebraska began providing late-term abortions. According to Potts, the new abortion legislation is probably designed to run Dr. Carhart out of town.

An anti-choice Catch-22

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Robin Marty of Rewire notes the glaring contradictions between the two Nebraska abortion laws: Before 20 weeks of gestation, the state is so concerned about a woman’s health that they will force her to seek a mental health assessment to spare her the trauma of an ill-advised abortion. It seems that Nebraska legislators think women are so fragile that they can’t decide on their own whether an abortion will be unduly upsetting. Yet, after 20 weeks, a woman is not entitled to a “life of the woman” exemption even if a doctor determines that she is likely to commit suicide if she is forced to continue her pregnancy.

The second round of debate was held [Monday] on the Pain-Capable Unborn Child Protection Act, a bill created almost entirely as a vehicle for getting anti-choice legislation challenged and potentially reviewed by the Supreme Court.  Unlike every other anti-choice law that has so far passed in this country, LB 1103 refuses to provide an exemption for a mother’s mental health, regardless of the fact that prior to 20 weeks a pregnant woman’s mental health was so valuable that the state wants to advocate mandatory screenings to protect it.

Vanessa Valenti of Feministing writes of the Nebraska law:

The blatant anti-choice and ableist implications in these bills are just atrocious. Not only will some women be forced to carry their pregnancies to term with no mental health exception, but doctors will be terrified to perform abortions in fear of not correctly adhering to obscure these screening rules.

A collision course with Roe?

Gov. Heineman vowed to defend the new laws against any legal challenges. The Nebraska law bans abortion based on the purported ability of fetuses to feel pain, not their ability to survive outside the womb. The Supreme Court has ruled that states cannot ban abortion of pre-viable fetuses. According to the accepted legal reasoning, if a fetus is too immature to survive outside the woman’s body, the woman has the right to withdraw the support of her body by terminating the pregnancy.

Conveniently, anti-choicers say that they have scientific evidence that pre-viable fetuses can feel pain. This dubious evidence isn’t just a pretext for banning abortion earlier, it puts the bill on a crash course with Roe. If the abortion issue is really about a woman’s right to control her body, then the fetal pain issue is a red herring. A woman can legally inflict pain on a full-grown person if she strikes in self-defense to protect her bodily autonomy. Nebraska is launching a full frontal assault on women’s rights. In Nebraska the pain of a non-viable fetus allegedly matters more than a woman’s freedom. We’ll see what the Supreme Court says about that.

How Justice Stevens’ retirement fits in

The wheels were set in motion just as the leading liberal on the Supreme Court, Justice John Paul Stevens, announced his retirement. In The Progressive, Matthew Rothschild, the son of Stevens’ former law partner, recalls some of Stevens’ key pro-choice opinions over the course of his long career. For example:

In the 2000 Nebraska “partial-birth-abortion” case, Stevens stated: It is “impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.”

As we look ahead to a Supreme Court confirmation battle, the Nebraska abortion bans illustrate why the stakes are so high. The Court is losing a leading champion of reproductive choice. President Barack Obama will face intense pressure from the liberal base to replace him with a nominee whose record on choice is equally strong. As Scott Lemieux argues at TAPPED, only a strong liberal will be able to hold the line against the conservative cadre of Scalia, Thomas, Roberts, and Alito.

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Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

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

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

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

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

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

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

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

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

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Analysis Human Rights

Immigrant Rights Groups Call for Moratorium on Deportations After Supreme Court Ruling

Tina Vasquez

“Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations," said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws.

The undocumented community received a devastating blow when the Supreme Court deadlocked on United States v. Texas, the lawsuit challenging President Barack Obama’s 2014 executive action on immigration. The Court’s decision leaves 3.6 million undocumented parents without the ability to work legally in the United States and with no relief from deportation.

Immigrant rights organizations say forcing such a large segment of the undocumented population to live in fear is “unacceptable,” and they are calling for a moratorium on deportations.

“Honestly, we were waiting on the Supreme Court to give us something, anything in the form of relief, and it didn’t happen,” said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws. “This is why we’re calling for the moratorium. It feels like this is the minimum we can ask for. People would be much happier with rights and citizenship and being able to do things like legally work in this country, but that’s not on the table right now. Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations.”

Stopping deportations, which have separated thousands of families, is within President Obama’s power, advocates say. As Unzueta wrote recently at the #Not1More site, the Supreme Court’s inaction in United States v. Texas “did not result in a challenge to the federal government’s jurisdiction over immigration enforcement issues or the President’s executive power to expand, reduce, or shut down the immigration enforcement programs that it has invested in.” And as Peter L. Markowitz, a professor at the Benjamin N. Cardozo School of Law, wrote in the New York Times, the president does have the “pardon power,” which includes “the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest.” Unlike deferred action, amnesty would not provide work permits, but there would be no complicated application process and it would be a form of immediate relief for millions of undocumented immigrants. However, given the president’s immigration track record, it’s unclear if President Obama is even considering amnesty.

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Deportations: An Urgent Crisis

The president’s executive action would have expanded the Deferred Action for Childhood Arrivals (DACA) program, enabling eligible undocumented immigrants to receive three-year work permits, and created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have provided a renewable work permit and exemption from deportation for two years to undocumented parents with children who are U.S. citizens or legal permanent residents and also meet certain requirements.

After the Supreme Court announced its split decision, President Obama essentially washed his hands of the undocumented community for the remainder of his presidency, while also leaving behind a “deportation machine” for the next president of the United States, Unzueta told Rewire.

In remarks after the Supreme Court ruling, President Obama said that in November when the next president is elected, he believes the country will get an immigration policy that reflects “the goodness of the American people” and that he has “pushed to the limits” of his executive authority. “We now have to have Congress act,” the president said, while also assuring Americans that the enforcement policies enacted by his administration will remain in place.

The president is referring to policies like the Priority Enforcement Program (PEP), announced November 20, 2014, the same day he announced the expansion of deferred action. PEP replaced Security Communities, an immigration enforcement and deportation program, though advocates argue that PEP is simply a continuation of Secure Communities. Both programs include local law enforcement working with ICE to detain undocumented immigrants.

“Since that announcement of both DAPA and PEP, there are members of our community who have experienced no relief. Now, because of the [Supreme Court] ruling, all that’s come is an increase in the ability to deport people. To me, that proves that you can’t put all of your eggs in one basket, and Obama can’t rely on trying to expand deferred action as the only response to immigrant communities. There’s so much more that he can do,” Unzueta told Rewire.

In a post for #Not1More, the policy and legal director outlined all of the avenues President Obama could take in light of the Supreme Court ruling, including stopping the home raids that have been taking place since January, reviewing his enforcement priorities such as targeting those who recently arrived in the United States, and ending “all programs that entangle local law enforcement and immigration enforcement.” Unzueta also wrote that the president could stop defending “the erosion of the few rights that immigrants have in detention centers,” referring to Jennings v. Rodriguez, a case the Supreme Court announced it would take four days before it issued its decision on DAPA. In Jennings, the Court will debate how long undocumented immigrants detained for immigration violations can be held in detention. “The case had already been decided in the 9th Circuit Court, indicating that immigrants had a right to a regular review of their case via a bond hearing,” Unzueta wrote. “The Obama administration is pushing against this decision asking the Supreme Court to overturn it, arguing effectively for fewer rights for immigrants who are detained.”

The most pressing concern, however, is deportations, which is why #Not1More and other groups, including ICE Out of Austin and the Connecticut Immigrant Rights Alliance (CIRA), are calling for a moratorium on them.

On June 27, the Georgia Latino Alliance for Human Rights blocked the ICE Atlanta field office and undocumented members of CIRA blocked traffic at the Hartford, Connecticut, immigration office demanding a moratorium on deportations. According to CIRA member Stefan Keller, the Hartford action resulted in the arrest of nine protesters, some of whom were undocumented. But because Hartford is a sanctuary city, which is a region that does not work with ICE for the detainment and deportation of undocumented community members, undocumented protesters were not at risk of deportation.

Alejandro Caceres, an organizer with ICE Out of Austin, a campaign to end Austin law enforcement’s partnership with the federal immigration agency, told Rewire the Supreme Court ruling has left many in Austin’s undocumented community feeling sad and frustrated, but that he’s now more committed than ever to focus his efforts locally.

“I think our organizing mentality is that we can’t do anything about the Supreme Court, but we do have the power to work to end deportations here locally,” Caceres said. “Our campaign has a four-resolution plan, and it ends with a city ID.” Community ID programs for undocumented immigrants have been adopted in various cities nationwide, including some in North Carolina, where this initiative is currently under attack. Under these programs, the city issues identification cards, which can make undocumented communities safer.

“That’s something we’re very recommitted to in the light of the Supreme Court ruling. It’s not a solution to the larger problem, but it’s a solution we can focus our energy on. It’s not citizenship. It’s not work authorization. But it’s something, and it’s one more barrier to stop folks from being deported.”

Like Unzueta, Caceres believes there is more Obama can do before he leaves office; there is more he must do, the organizer said, because without DAPA or the DACA expansion, millions of people are at risk of deportation. This is why ICE Out of Austin signed on to call for a moratorium on deportations.

“Saying, ‘DAPA didn’t pass, there’s nothing I can do,’ just isn’t true, and it’s not holding yourself accountable to the immigrant community. We know he [President Obama] can do more, and that’s why we want to put a stop to the deportations. Those who have been calling for comprehensive immigration reform understand people are being needlessly deported, and if they understand that, they have to agree that we must put a stop to deportations as soon as possible. If folks continue to be deported, that is the most urgent crisis we have and that is the issue we will continue to fight,” Caceres said.

Demanding a stop to deportations is a way to push President Obama to do more, according to advocates. Every immigration win that has come from the Obama administration began with pressure from undocumented organizers and activists, Keller said, and the call for a moratorium on deportations is no different.

“The president said it’s up to us, it’s up to Congress, it’s out of his hands. But if Congress isn’t going to help create a just immigration system, we need to put a halt on deportations until this broken system is fixed,” Keller told Rewire. “There is no justice in separating families. This is punishing people because no one is capable of reform or carrying out any other plan of action.”

Providing Tangible Support

President Obama is commonly referred to as the “deporter-in-chief” by immigrant rights activists. It is such a commonly used phrase, in fact, that in January when asking Hillary Clinton about her immigration policies, journalist Jorge Rivas asked Clinton if she would be the next deporter-in-chief. According to a Fusion report, President Obama has deported more immigrants than any president in history, more than 2.5 million since 2009. And as the Nation reported, under his administration the budget for immigration enforcement increased by 300 percent.

Chances are, Caceres told Rewire, that these deportations will continue no matter who is president.

“It was Democrats who [deported over 2 million people]; it was Democrats who implemented family detention. If this continues, the immigrant community, the undocumented community, Latinos, all kinds of people will no longer see any political party as viable or trust-worthy. Neither party helps us.”

“That’s why the response to the undocumented community from liberals and Democrats can’t just be, ‘We’re going to go out and vote and elect a Democratic president.’ We can’t rely on one party,” Unzueta added.

#Not1More’s policy and legal director said it’s hard to get behind any politician, presidential candidate or otherwise, who isn’t willing to say that they want to dismantle the deportation machine, stop deportations, and cut back on the policies and programs that target immigrant communities. “Saying you will work toward comprehensive immigration reform is not what we need at this moment. Saying you will work on stopping deportations is what the community needs. That is the immediate concern,” she said.

In March, the Latin Post reported that “the Democratic Party leaders in the Senate and House of Representatives, in addition to 223 additional members of Congress, filed the amicus brief defending DAPA and DACA’s expanded guidelines.” Advocates say those same politicians and lawmakers must provide tangible support to the undocumented community by helping to stop deportations. Whether that’s publicly pressuring the president to stop deportations after the Supreme Court ruling or lending their voice to individual cases of DAPA-qualified undocumented immigrants who are in detention or deportation proceedings, now is the time, Unzueta said.

Caceres and other members of ICE Out of Austin have been pressuring the Austin Police Department and city council for months to adopt a policy not allowing officers to ask about immigration status. Currently, Austin police officers are allowed to inquire about a person’s immigration status—and no one knows that better than Caceres, who was arrested for refusing to discuss his immigration status with an officer. Working to end these types of policies in their own communities is a way to provide the undocumented community with tangible support, the organizer said.

I think local politicians should really look into their police departments and what policies they have around detaining immigrants,” he said. “If we can’t instate DAPA or stop deportations, we can make it more difficult to deport people. Does your local law enforcement work with ICE? Work to end that. If immigration wants an undocumented person’s information, make sure they have to come with a warrant. Ending the Priority Enforcement Program in your community, that’s tangible support,” Caceres said. “It can make you feel good to write a letter to the Supreme Court saying you’re disappointed in the ruling, but that doesn’t really do anything for us. Tangible support is ending ties with ICE. Letting folks in the community know that if they get arrested, for any reason, they will not be deported.”

In addition, advocates suggest urging local politicians to turn their communities into sanctuary cities. Joining the District of Columbia and 12 states in allowing undocumented immigrants to obtain a driver’s license is also a way for local politicians to provide tangible support, Caceres told Rewire.

Unzueta said she doesn’t know if President Obama will provide a moratorium on deportations and she isn’t sure if politicians who voiced support for DAPA and DACA will step up to the plate to help the undocumented community in this time of need. “Hopeful,” she said, isn’t really in her vocabulary anymore.

“I’ve been doing this a long, long time and I’ve seen so many setbacks. As long as our humanity is debated and we have to fight for basic rights, I don’t get my hopes up because I don’t want to be disappointed. But that doesn’t mean I’m hopeless,” she told Rewire. “I believe in community and I believe in organizing. I believe in the power of an organized community. I choose to invest my hope in that.”