Kagan and Reproductive Rights: No Time for Complacency

Amanda Marcotte

Because abortion is not openly being discussed right now in regard to Elena Kagan's nomination, it’s tempting to assume it may never really become an issue.  Don't bet on it.

So far, the issue of reproductive rights hasn’t really been much of a factor in the discussion about Obama’s new nominee to the Supreme Court, Elena Kagan.  For the most part, this is because the right is occupied with the game of trying to figure out how to call Kagan a lesbian without coming right out and saying it. Because it’s not on the table right now, it’s awfully tempting for pro-choice activists to assume that it may never really become an issue.  Perhaps the Obama administration’s decision to find a candidate with as obtuse a record on the issues as possible might be enough to keep the rabid dogs of the anti-choice movement out of this?

Don’t bet on it. When we relax our shoulders and start to believe that anti-choicers won’t be able to find an angle to make something All About Them, that’s when they strike.  They did it with the economic stimulus package, lashing out at funding for family planning services in an effort to kill the bill.  Pro-choice attempts to make health care reform abortion-neutral failed miserably, and anti-choicers were very close to killing health care reform entirely over abortion. And even if Elena Kagan never uttered the word “abortion” in her life, there’s a good chance that won’t stop them.  They’re very rarely bothered by reality, and in the absence of any evidence to support their views, will just make it up.

Of course, things are far more complicated because we really don’t have much evidence about Kagan’s beliefs about choice one way or another.  There’s been a memo where she urged then-President Clinton to support a late term abortion ban, but it appears that her motivation was to back a compromise that would prevent a more severe restriction down the road.  As it was, her prediction did play out—as soon as an anti-choice President was elected, he signed a serious federal restriction on late abortion—but it’s hard to imagine that a compromise bill passed earlier would have done much to stop the more severe restriction.  But the whole incident calls into question Kagan’s commitment to choice.  It’s hard to believe that President Obama would nominate someone without being assured of her commitment to abortion rights, but understandably, pro-choicers don’t want to take this on faith.

My sense is that Kagan is a purely political animal, who seems to value what’s popular over what’s right. Take this story, for example.  Kagan also urged President Clinton to support sentencing laws that treat the possession of crack cocaine as more serious than the possession of powder cocaine, even though it’s the same drug.  The only real difference between the drugs is a class difference, and the result of these sentencing laws is functionally racist.  There’s really no question that the sentencing laws are deeply unjust, but Kagan advised Clinton to support them anyway, because it sent the signal that the President is “tough on crime.”

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The hope no doubt among progressives is that Kagan’s tendency to be a middle-of-the-road political animal will fall away when she’s ensconced in the lifetime position of Supreme Court justice.  But I’m skeptical.  Being a political animal is rarely a conscious choice, but more of a personality trait.  Odds are that Kagan’s behavior off the court will be a good predictor of her behavior on the court.  And her history inclines me to think she’ll be quite a bit like Sandra Day O’Connor, a moderate who tended to value politically popular opinions over rigorously argued ones.  In his book “The Nine,” Jeffrey Toobin explained that O’Connor had an uncanny ability to absorb the most politically centrist sentiment in the country and channel that into her decisions. Kagan is going in on a reputation as a great compromiser, a person who can bring disparate people together by appealing to common ground. 

On abortion rights, this tendency can be incredibly dangerous, even when a justice is technically pro-choice.  O’Connor, despite being pro-choice, struck an enormous blow to abortion rights when she wrote the majority opinion in Planned Parenthood v. Casey.  The decision overturned the standard laid out in Roe v. Wade that made it difficult for state governments to restrict abortion, especially in the first trimester, and replaced it with a standard where states are allowed to regulate abortion as long as there was no “undue burden” on women seeking abortion.  From a legal perspective, the standard is hazy and ill thought out, but it was a politically popular one in a nation where most people support legal abortion but want it to be severely restricted.  Unfortunately, the decision opened a floodgate of absolutely undue burdens on abortion access, from parental notification and waiting periods to laws that exist mainly to harass providers.

Sadly, we saw this kind of thinking in the memo advising President Clinton to support a compromise bill restricting access to late term abortion.  One can be pro-choice and make decisions that are anti-choice under the misguided belief that compromises and common ground will placate anti-choicers.  I can’t imagine a scenario where passing a less restrictive abortion ban under a pro-choice President would suffice and thereby stop anti-choicers from trying to pass another more restrictive one as soon as they got an anti-choice President.  If anything, gaining victories under a pro-choice administration would probably embolden them to reach for more under an anti-choice administration.

Let’s hope Kagan proves me wrong once she passes confirmation, which she almost surely will.  It’s hard to imagine the court isn’t going to revisit the issue of abortion soon, with challenges to it rising up in states like Nebraska.  And as hard as it is to imagine that the restrictions on abortion could get any worse, the sad reality is they can.  

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquiries from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

News Law and Policy

Anti-Choice Group: End Clinic ‘Bubble Zones’ for Chicago Abortion Patients

Michelle D. Anderson

Chicago officials in October 2009 passed the "bubble zone" ordinance with nearly two-thirds of the city aldermen in support.

An anti-choice group has announced plans to file a lawsuit and launch a public protest over Chicago’s nearly seven-year-old “bubble zone” ordinance for patients seeking care at local abortion clinics.

The Pro-Life Action League, an anti-choice group based in Chicago, announced on its website that its lawyers at the Thomas More Society would file the lawsuit this week.

City officials in October 2009 passed the ordinance with nearly two-thirds of the city aldermen in support. The law makes it illegal to come within eight feet of someone walking toward an abortion clinic once that person is within 50 feet of the entrance, if the person did not give their consent.

Those found violating the ordinance could be fined up to $500.

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Harassment of people seeking abortion care has been well documented. A 2013 survey from the National Abortion Federation found that 92 percent of providers had a patient entering their facility express personal safety concerns.

The ordinance targets people seeking to pass a leaflet or handbill or engaging in “oral protest, education, or counseling with such other person in the public way.” The regulation bans the use of force, threat of force and physical obstruction to intentionally injure, intimidate or interfere any person entering or leaving any hospital, medical clinic or health-care facility.

The Pro-Life Action League lamented on its website that the law makes it difficult for anti-choice sidewalk counselors “to reach abortion-bound mothers.” The group suggested that lawmakers created the ordinance to create confusion and that police have repeatedly violated counselors’ First Amendment rights.

“Chicago police have been misapplying it from Day One, and it’s caused endless problems for our faithful sidewalk counselors,” the group said.

The League said it would protest and hold a press conference outside of the Planned Parenthood clinic in the city’s Old Town neighborhood.

Julie Lynn, a Planned Parenthood of Illinois spokesperson, told Rewire in an email that the health-care provider is preparing for the protest.

“We plan to have volunteer escorts at the health center to make sure all patients have safe access to the entrance,” Lynn said.

The anti-choice group has suggested that its lawsuit would be successful because of a 2014 U.S. Supreme Court decision that ruled a similar law in Massachusetts unconstitutional.

Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois, told the Chicago Tribune back then that the health-care provider expected the city’s bubble zone to be challenged following the 2014 decision.

But in an effort to avoid legal challenges, Chicago city officials had based its bubble zone law on a Colorado law that created an eight-foot no-approach zone within 100 feet of all health-care facilities, according to the Tribune. Sidewalk counselor Leila Hill and others challenged that Colorado law, but the U.S. Supreme Court upheld it in 2000.

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