In a Q and A interview today at Netroots Nation, White House Communications Director Dan Pfeiffer could not bring himself to acknowledge that there is a "war on women," underway in the United States and fudged the issue of how exactly the Administration would either respond to or fight back attacks on women's rights.
This article was amended to correct the spelling of Kaili.
At Netroots Nation today, Daily Kos Associate Editor Kaili Joy Gray interviewed Dan Pfeiffer, White House Director of Communications. During the interview, questions posed to Pfeiffer ranged from the War Powers Act to Medicare, Medicaid, Social Security, the Environmental Protection Agency and gay rights, among other issues.
Concluding her discussion on the War Powers Act, Gray turned to Pfeiffer and said, “Now I’d like to ask you about a different kind of war, and this is one I am particularly concerned about…the war on women.” Gray continued:
We’re seeing an unprecedented number of attacks on women at the state and federal level, everything from contraception to health care to food stamps, drug-testing of women receiving welfare in Florida. Women in Congress including Nancy Pelosi are talking about the war on women. I want to know if the President agrees with House Minority Leader Nancy Pelosi and new DNC Chairwoman Debbie Wasserman-Shultz that there is a war on women.
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Pfeiffer punts. He acknowledges that “there is a sustained effort at the state and federal level to roll back progress we’ve made,” and goes on to cite the efforts to de-fund Planned Parenthood in Congress and in Indiana as examples.
Gray challenges him on what happened during health reform and asks again: “Is there a war on women.” Pfeiffer punts again, refuses to answer the question and then states: “Let’s talk about health reform,” calling the Hyde Amendment “settled law,” and stating that what happened with the Hyde Amendment during health reform was a “simple choice.” Gray reminds him that, no, the Hyde Amendment is not settled law, but rather is attached to annual appropriations.
Pfeiffer claims that “there is no question that the President is concerned about the very same things that concern Nancy Pelosi and Debbie Wasserman-Schultz.” Gray asks, then “well he hasn’t really said anything about it, so, is he planning to speak out on the issue?”
When Pfeiffer falls back on the example of Planned Parenthood and on the Lilly Ledbetter act, Gray says, “because you know in 2008, President Obama carried women by a 56 to 43 margin, and in 2010 Democratic women stayed home or voted Republican. Women in this country, Democratic women, are the majority in the country and a majority of the party, we feel like we are under assault, frankly we are a little sick hearing [just] about [Ledbetter].” She is asking Pfeiffer every which way she can to articulate an analysis of what is going on and offer some kind of response on how the Administration will address the attacks on women. When he doesn’t she asks:
“Does the President think he can win without women?”
Pfeiffer: “Of course not.”
“So what will he do to get women to turn out in 2012?”
Pfeiffer points out a push for the Paycheck Fairness Act and states the President went to bat for it last year (it lost) and will do so again.
In short, is the real answer that the President apparently agrees with some of the things Pelosi and Wasserman-Schultz says, but can’t articulate the issues on his own? Does he realize exactly what is going on? Is there an analysis and a plan of action for women within the Administration?
The answer given today was that there is no answer nor any articulated, concerted strategy to address the assault on women’s rights. Indeed, not even an analysis about the war on women from the White House. Nada.
Abortion opponents regularly talk as though no restriction is off the table when it comes to stripping away reproductive rights. And supporters of abortion rights don’t always set them straight. If we don’t know what our established rights are, we can’t defend them. Pro-choicers need to know why abortion is a constitutional right and what boundaries the U.S. Supreme Court has set out to protect it.
1. Abortion is protected by the rights to bodily integrity and to make decisions about family. The Court explained that decades ago.
The 14th Amendment prohibits states from depriving a person of liberty without due process of law. A person has the right to end a pregnancy without undue interference from the government because that right to liberty includes (1) the right to make decisions about family and (2) the right to bodily integrity.
However, in order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—thatthe Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.
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In the pre-Roe contraception case Griswold v. Connecticut (1965), the Court did hold that “penumbras, formed by emanations” or various interpretations of the First, Third, Fourth, Fifth, and Ninth Amendments protect a right to privacy. But in deciding Roe, the Warren court located the right to privacy in the 14th Amendment’s explicit protection of the right to liberty. Regardless, the Court’s understanding of the rights that protect reproductive freedom expanded beyond just privacy decades ago.
Privacy is barely mentioned in Planned Parenthood v. Casey, which established the current law governing abortion rights more than 20 years ago. “The controlling word in the cases before us is ‘liberty,’” the decision explained. It was settled law prior to Roe that liberty includes “the right to make family decisions and the right to physical autonomy.”
Privacy is also a constitutional right, and it was indeed violated by the laws at issue in Roe and its companion case, Doe v. Bolton. Those laws required a woman seeking an abortion to share her reasons for wanting the procedure with legal or medical authorities to have any hope of receiving legal abortion care. However, the law and discourse around privacy at the time of Roe implied a woman should be permitted to use contraception or end a pregnancy because the state should not interfere in decisions made in secret with the permission of her doctor, husband, father, pastor, or others. Casey instead properly recognized that the 14th Amendment protects a person’s right to control her body and destiny.
So why has the idea persistedthat all we’ve got is a privacy right made up out of thin air? A counterintuitive and less textually based right serves abortion opponents, but abortion rights advocates also have a history of telling us abortion restrictions are primarily a threat to privacy. As William Saletan documented in Bearing Right: How Conservatives Won the War on Abortion, in the run-up to Casey, pro-choice leaders emphasized privacy on the advice of pollsters and political consultants to appeal to anti-government, anti-welfare, anti-tax, and anti-integration sentiments. While reproductive rights lawyers argued to the Supreme Court that the Constitution’s protection of autonomy, bodily integrity, and equality protected abortion access, outside of court pro-choice leaders told the public the right at stake was privacy. But, ultimately, the Casey decision provided a much fuller discussion of why abortion is constitutionally protected by rights beyond privacy.
Abortion is protected by the due process clauses of the Fifth Amendment (which restricts the federal government) and the 14th Amendment (which was added to the Constitution to restrict the states). As Casey explained, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.
2. Any pre-viability ban is unconstitutional. Period.
In Casey, the Supreme Court was asked for the sixth time in a decade to overturn Roe, and the Court essentially said forget it. “We answer the question,” the authors of the controlling opinion wrote, “whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional … The answer is no.”
What part of “no” don’t conservative leaders understand? The state may not prohibit abortion before viability. A pregnancy is generally considered viable around 24 to 26 weeks. But, as the Court has recognized, this is a medical determination specific to each pregnancy—so even a 24-week ban would be unconstitutional. Though states continue to propose 20-week bans, every pre-viability ban that has been challenged in federal court has been struck down. The Supreme Court declined two recent invitations to revisit the viability line, set out in Roe and affirmed in Casey, when the Court was asked to review rulings striking down North Dakota’s six-week ban and Arkansas’ 12-week ban. Not even the late Justice Antonin Scalia or Justice Clarence Thomas (now the Court’s last remaining member who has called for overturning Roe) publicly dissented from the decision not to take the case.
It has been “black letter law”—or an established legal rule—for 40 years that abortion cannot be banned before viability with or without exceptions. The government may not condition whether a woman can have an abortion on whether she can prove she has been raped or her health is endangered because she has an absolute right to one before viability for any reason. When Democrats emphasized, for example, former Republican presidential hopefuls Texas Sen. Ted Cruz‘s or Florida Sen. Marco Rubio’s callousness toward women who want to abort a pregnancy resulting from rape, they may have legitimized the idea that a pre-viability abortion ban with the exceptions Donald Trump supports might be permissible.
Similarly, while it is important to combat the racist stereotypes that animate proposed bans for race- and sex-selective abortion—it should be repeated that requiring any inquiry into a person’s reasons for a pre-viability abortion is flagrantly unconstitutional.
Abortion opponents often try to frame 20-week bans as a moderate compromise. In fact, theyare advocating for a radical departure from Roe and Casey’s viability rule. The Court has been clear that departure will not be forthcoming. So it doesn’t matter if 20-week bans poll well—any pre-viability ban is unconstitutional.
But Democrats who are asked what’s wrong with banning abortion after 20 weeks often talk about health conditions and deference to a woman’s doctor. There is little use in explaining the reasons patients need later abortions to proponents of bans intended to vilify women who have them—that only perpetuates the idea that every possible policy is still up for debate because there are no constitutional boundaries.
And when Democrats, asked questions meant to paint them as extremists, fail to give a straight answer to whether abortion can be prohibited at any point in pregnancy, they miss the opportunity to give an apparently much-needed reminder that—say it with me—pre-viability bans are unconstitutional. In Hillary Clinton’s response to Rubio’s claim that she supports abortion being legal “on the baby’s due date,” for example, Clinton said Rubio should know Roe has guidelines. She didn’t, however, say what they are: A woman has the right to end a pregnancy before viability or if it endangers her health. States can prohibit abortions after viability, and most of them do. That is not to say they should. The idea that women wait until the third trimester to abort healthy pregnancies is a myth; women prefer to have very early abortions, and third-trimester abortions are generally unavailable because only a handful of doctors provide them.
Leading Democrats should not have trouble answering questions about abortion. Democratic National Committee Chair Debbi Wasserman Schultz, who has wrung her hands about young women not understanding the importance of Roe, would do well to make sure she can answer ridiculous questions about “abortions at eight months” with Roe basics herself. That would also be preferable to Nancy Pelosi debating what “abortion on demand” means and whether she supports it. When abortion opponents raise the specter of later abortions to shame women, Democrats should tell them states are constitutionally free to ban post-viability abortions that almost no one is having.
When we can’t explain as basic a rule as “no pre-viability bans,” we invite abortion opponents to move the goalposts.One prominent advocate for gradually re-criminalizing abortion (but who claims to be a moderate) argued in the Los Angeles Times that a law banning abortion at 20 weeks might withstand constitutional scrutiny if it also mandated paid maternity leave, because that would make the pregnancy less burdensome. That is an extremely audacious twisting of Casey, which allowed states to enact laws aimed at persuading a woman to carry to term so long as they do not impose an “undue burden” on those seeking an abortion, but was perfectly clear that she has the right to one before viability. The test is whether a restriction makes it unduly burdensome for a woman to get the abortion she is entitled to, not whether it would unduly burden her to be forced by the government to carry to term.
3. Casey‘s “undue burden” standard is a meaningful protection of abortion rights when courts apply it properly.
Casey changed the standard courts use to determine when an abortion restriction short of a ban is unconstitutional—it did not “kill”Roe. Saying so helps savvy anti-choicers portrays the doctrine protecting abortion as weaker than it isand emboldens legislators to pass blatantly unconstitutional laws.
Casey replaced Roe’s trimester framework, which set out different standards for what restrictions are permissible by trimester, with the “undue burden” standard. Under Casey, the government may try to promote potential life from the outset of pregnancy—but only by trying to influence a woman’s decision, not by trying to hinder her once she has made it. A law with the purpose or effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion is “an undue burden” on her right and thus unconstitutional.
The provisions of the Texas abortion law challenged in the U.S. Supreme Court case to be decided any day now, Whole Woman’s Health v. Hellerstedt, are clearly unconstitutional; the law requires all abortions to be performed in hospital-like facilities by doctors with hospital admitting privileges. The idea that such provisions are meant to protect women rather than make getting an abortion more difficult and expensive doesn’t pass the laugh test, and the decision of the Fifth Circuit Court of Appeals upholding them is an outlier. Other courts have assessed the evidence and determined that they have no medical benefit—and, thus, the burdens they impose are “undue.”
But in the run-up to Whole Woman’s Health, too many abortion rights supporters have suggested the undue burden standard is toothless, essentially echoing anti-abortion advocates and a rogue appeals court engaged in an obvious attack on the Supreme Court’s precedent. Rather than encouraging the idea that no burden is “undue” unless it is “insurmountable,”abortion rights supporters should embrace an interpretation of the term more consistent with its meaning in the English language, as the majority of courts have. In an opinion striking down Wisconsin’s admitting privileges requirement, Judge Richard Posner of the Seventh Circuit Court of Appeals explained a burden is undue if it is “disproportionate or gratuitous.” Even a slight burden resulting from a medical regulation with no medical benefit is undue. Abortion rights supporters should not indulge the idea that shutting down 75 percent of the clinics in Texas might not be.
This matters because public understanding of the law puts pressure on courts and legislators to uphold it. We have to know our rights if we want them to be protected.
On June 14, the White House will host the United State of Women Summit to "celebrate the progress we've made on behalf of women and girls and to talk about how we're taking action moving forward." Yet abortion is nowhere on the agenda.
On June 14, the White House will host the United State of Women Summit to, as its website explains, “celebrate the progress we’ve made on behalf of women and girls and to talk about how we’re taking action moving forward.” Yet reproductive rights are scarcely included.
Six themes are on the agenda: economic empowerment; educational opportunity; violence against women; entrepreneurship and innovation; leadership and civic engagement; and health and wellness—”looking at health coverage, preventative care, pregnancy and more.” Speakers will discuss a number of topics to “inspire all of us to take action on June 14th and well after.” The audience is to be made up of advocates and leaders hand-selected by the White House.
Prenatal care is highlighted in the programming descriptions. Contraceptive coverage is mentioned as part of the Affordable Care Act. Maternal mortality and HIV prevention is discussed as an issue of global health, although these issues remain urgent within the United States as well, with women of color experiencing unconscionable disparities in care. Yet the word “abortion” is nowhere to be found.
This, despite the fact that in the last five years, states put upwards of 288 new abortion restrictions on the books, which is more than a quarter of the total such laws adopted since Roe v. Wade. It’s not stopping. In the first three months of 2016, states introduced 411 new abortion restrictions. The “pro-life” dream is coming true: Clinics are closing, specific methods of abortion are being banned, and those women who take matters into their own hands are starting to trickle into jails under fetal homicide laws that backers swore wouldn’t be used to prosecute women.
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President Obama is well aware of these issues. He knows that Congress has established a select investigative panel for the purpose of harassing Planned Parenthood, even after the sting videos created by David Daleiden to bring the organization down were thoroughly debunked. He knows that the incendiary rhetoric used by the activists and politicians colluding with Daleiden sadly and predictably erupted into a terrorist act, leading to the murder of three people in a Colorado Springs Planned Parenthood health center late last year. He knows that five men and three women in Supreme Court robes are considering Whole Woman’s Health v. Hellerstedt, a challenge to Texas’ abortion clinic closure law and the biggest abortion access case in a generation.
In this environment, there is no acceptable excuse for leaving abortion out of a policy agenda for women. Abortion is an inextricable part of the struggle for women’s equality, and as I’ve covered for Rewire previously, you simply can’t do feminism—a commitment to the social and political equality of all people, especially women and girls—and set the controversy of abortion off to the side.
The strategy of trying to make things better for women by talking about everything but reproductive rights doesn’t work. Hushing up about abortion has not magically ended the domestic violence crisis, produced the votes for paycheck fairness, or mandated paid family leave. Leaving abortion to the side has certainly failed to help women parent their children in safe and healthy communities, free of state or systemic violence.
And yet the current plan for the United State of Women Summit is silence. As a time for women’s advocates to gather and outline strategies for moving forward, abortion should be included, period. Obama has nothing to lose politically by taking a more robust stand on reproductive rights during the sunset days of his administration. In fact, embracing abortion and sexual health for women would serve to strengthen his legacy toward women and girls.
Since that history-making day in 2009 when he took office, Obama has mistakenly treated reproductive rights as playing second fiddle to the women’s movement, and to his broader legacy toward dignity, equality, and justice for all. Yes, Cecile Richards has visited his White House 42 times and yes, public actions such as including the birth control benefit in the health-care law and refusing to allow shutdown-happy Republicans in Congress to defund Planned Parenthood show a level of access, commitment, and support.
But when this president convenes a big table, even a women’s summit, abortion is lucky to get a folding chair in the back. Women who have sex are placed in a silo on purpose.
If we’re honest about it, abortion is controversial because affirming a woman’s inherent right to dignity, power, and sexual pleasure is the controversy. This is about gender roles, sexuality, and control—especially over people born into bodies of color and families without wealth.
Either we believe that women are people and deserve dignity, or we don’t. There is no such thing as equality for women if the precondition of equality is that women shut their legs. Justice doesn’t come with behavioral preconditions targeting the very people experiencing injustice.
An advocate for reproductive health, rights, or justice could, on a level, sympathize with Obama for not wanting to have his presidency and even his legacy-minded women’s summit flanked by bloody fetus posters and buses full of Troy Newmans. But the threat of a sideshow shouldn’t stand in the way of justice. On other issues, this president and his administration have proven capable of growing and changing, as with Obama’s journey to embrace marriage equality. Or, more recently, consider the administration’s clear and firm stance for equality in the face of outrageous discrimination and lies peddled by the right wing, as when it filed suit against North Carolina’s bathroom discrimination law as Attorney General Loretta Lynch told the transgender community, “We see you.”
In any case, this issue can and should be corrected now. Abortion should not be censored out of Obama’s big party for feminism, nor from feminism in general. A webmaster can add reproductive rights to the United State of Women Summit website, and the programming can be updated. President Obama can, for that matter, sign a life-saving executive order on Helms. And his legacy toward women that he cares so much about will be vastly improved.
CORRECTION: This piece has been updated to reflect the correct number of themes on the agenda at the summit.