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

Anti-Choice Democrats: ‘Open the Big Tent’ for Us

Christine Grimaldi & Ally Boguhn

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Read more of our coverage of the Democratic National Convention here.

Democrats for Life of America gathered Wednesday in Philadelphia during the party’s convention to honor Louisiana Gov. John Bel Edwards (D) for his anti-choice viewpoints, and to strategize ways to incorporate their policies into the party.

The group attributed Democratic losses at the state and federal level to the party’s increasing embrace of pro-choice politics. The best way for Democrats to reclaim seats in state houses, governors’ offices, and the U.S. Congress, they charged, is to “open the big tent” to candidates who oppose legal abortion care.

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

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Democrats for Life of America members repeatedly attempted to distance themselves from Republicans, reiterating their support for policies such as Medicaid expansion and paid maternity leave, which they believe could convince people to carry their pregnancies to term.

Their strategy, however, could have been lifted directly from conservatives’ anti-choice playbook.

The group relies, in part, on data from Marist, a group associated with anti-choice polling, to suggest that many in the party side with them on abortion rights. Executive Director Kristen Day could not explain to Rewire why the group supports a 20-week abortion ban, while Janet Robert, president of the group’s board of directors, trotted out scientifically false claims about fetal pain

Day told Rewire that she is working with pro-choice Democrats, including Sen. Kirsten Gillibrand and Rep. Rosa DeLauro, both from New York, on paid maternity leave. Day said she met with DeLauro the day before the group’s event.

Day identifies with Democrats despite a platform that for the first time embraces the repeal of restrictions for federal funding of abortion care. 

“Those are my people,” she said.

Day claimed to have been “kicked out of the pro-life movement” for supporting the Affordable Care Act. She said Democrats for Life of America is “not opposed to contraception,” though the group filed an amicus brief in U.S. Supreme Court cases on contraception. 

Democrats for Life of America says it has important allies in the U.S. House of Representatives and the U.S. Senate. Sens. Joe Donnelly (IN), Joe Manchin (WV), and Rep. Dan Lipinski (IL), along with former Rep. Bart Stupak (MI), serve on the group’s board of advisors, according to literature distributed at the convention.

Another alleged ally, Sen. Bob Casey (D-PA), came up during Edwards’ speech. Edwards said he had discussed the award, named for Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey, which opened up a flood of state-level abortions restrictions as long as those anti-choice policies did not represent an “undue burden.”

“Last night I happened to have the opportunity to speak to Sen. Bob Casey, and I told him … I was in Philadelphia, receiving this award today named after his father,” Edwards said.

The Louisiana governor added that though it may not seem it, there are many more anti-choice Democrats like the two of them who aren’t comfortable coming forward about their views.

“I’m telling you there are many more people out there like us than you might imagine,” Edwards said. “But sometimes it’s easier for those folks who feel like we do on these issues to remain silent because they’re not going to  be questioned, and they’re not going to be receiving any criticism.”

During his speech, Edwards touted the way he has put his views as an anti-choice Democrat into practice in his home state. “I am a proud Democrat, and I am also very proudly pro-life,” Edwards told the small gathering.

Citing his support for Medicaid expansion in Louisiana—which went into effect July 1—Edwards claimed he had run on an otherwise “progressive” platform except for when it came to abortion rights, adding that his policies demonstrate that “there is a difference between being anti-abortion and being pro-life.”

Edwards later made clear that he was disappointed with news that Emily’s List President Stephanie Schriock, whose organization works to elect pro-choice women to office, was being considered to fill the position of party chair in light of Rep. Debbie Wasserman Schultz’s resignation.

“It wouldn’t” help elect anti-choice politicians to office, said Edwards when asked about it by a reporter. “I don’t want to be overly critical, I don’t know the person, I just know that the signal that would send to the country—and to Democrats such as myself—would just be another step in the opposite direction of being a big tent party [on abortion].” 

Edwards made no secret of his anti-choice viewpoints during his run for governor in 2015. While on the campaign trail, he released a 30-second ad highlighting his wife’s decision not to terminate her pregnancy after a doctor told the couple their daughter would have spina bifida.

He received a 100 percent rating from anti-choice organization Louisiana Right to Life while running for governor, based off a scorecard asking him questions such as, “Do you support the reversal of Roe v. Wade?”

Though the Democratic Party platform and nominee have voiced the party’s support for abortion rights, Edwards has forged ahead with signing numerous pieces of anti-choice legislation into law, including a ban on the commonly used dilation and evacuation (D and E) procedure, and an extension of the state’s abortion care waiting period from 24 hours to 72 hours.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.