News Abortion

South Dakota Legislature Makes Bad Abortion Bill… Worse.

Kari Ann Rinker

It looks like the South Dakota legislature has built upon its last unconstitutional, litigated piece of anti-choice legislation and in its infinite wisdom passed an even more egregious piece of anti-choice legislation.

South Dakota has passed a “tweaked” version of an anti-choice bill that was approved last session, which is currently in the midst of a court challenge. The 72-hour waiting period enacted by this bill–which constitutes the longest waiting period in the nation–was not modified, however, so women will still need to take three days or more off of work for their abortion at the state’s only abortion clinic, Planned Parenthood Sioux Falls

The original law was placed under injunction in June 2011.  Besides the 72-hour waiting period, it also includes a requirement that women mandatorily obtain counseling at a Crisis Pregnancy Center (CPC).  Judge Karen Schreier, who granted the injunction, stated in her ruling that: “Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being.”

“The woman will feel degraded by the compulsive nature of the Pregnancy Help Center Requirements, which suggest that she has made the ‘wrong’ decision, has not really ‘thought’ about her decision to undergo an abortion, or is ‘not intelligent enough’ to make the decision with the advice of a physician.” 

The newly passed HB 1254 does not remove the CPC provision, but now requires that counselors at CPC’s be licensed. The bill also requires that physicians speak to women about their religious beliefs. The following is from a Naral Pro-Choice South Dakota press release, provided by Executive Director, Alisha Sedor:

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“This legislation is as much an affront to women’s right to choose as its egregious predecessor,” Sedor said. “Furthermore, these changes impose even more unprecedented hurdles on women seeking medical care and create new concerns about constitutionality.

HB 1254 would also expand the enjoined 2011 law to include new biased-counseling mandates on providers, requiring physicians to probe women about deeply personal topics, including their religious beliefs.

All individuals seeking health-care services should receive comprehensive, unbiased, medically and factually accurate information from the healthcare provider of their choice,” said Sedor, “However, this legislation is nothing but a thinly veiled attempt to intimidate, shame, and coerce women against accessing safe, legal abortion.“

It looks like the South Dakota legislature has built upon its last unconstitutional, litigated piece of anti-choice legislation and in its infinite wisdom passed an even more egregious piece of anti-choice legislation, continuing its record of wasting taxpayer time, energy and resources on one solitary medical clinic within its 77,121 square miles. Meanwhile, the nation’s top three poorest counties are located within that state. This stands as another tragic example of misplaced priorities in GOP dominated state legislatures.   

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.”

Commentary Human Rights

When It Comes to Zika and Abortion, Disabled People Are Too Often Used as a Rhetorical Device

s.e. smith

Anti-choicers shame parents facing a prenatal diagnosis and considering abortion, even though they don't back up their advocacy up with support. The pro-choice movement, on the other hand, often finds itself caught between defending abortion as an absolute personal right and suggesting that some lived potentials are worth more than others.

There’s only one reason anyone should ever get an abortion: Because that person is pregnant and does not want to be. As soon as anyone—whether they are pro- or anti-choice—starts bringing up qualifiers, exceptions, and scary monsters under the bed, things get problematic. They establish the seeds of a good abortion/bad abortion dichotomy, in which some abortions are deemed “worthier” than others.

And with the Zika virus reaching the United States and the stakes getting more tangible for many Americans, that arbitrary designation is on a lot of minds—especially where the possibility of developmentally impaired fetuses is concerned. As a result, people with disabilities are more often being used as a rhetorical device for or against abortion rights rather than viewed as actualized human beings.

Here’s what we know about Zika and pregnancy: The virus has been linked to microcephaly, hearing loss, impaired growth, vision problems, and some anomalies of brain development when a fetus is exposed during pregnancy, according to the Centers for Disease Control and Prevention. Sometimes these anomalies are fatal, and patients miscarry their pregnancies. Sometimes they are not. Being infected with Zika is not a guarantee that a fetus will develop developmental impairments.

We need to know much, much more about Zika and pregnancy. At this stage, commonsense precautions when necessary like sleeping under a mosquito net, using insect repellant, and having protected sex to prevent Zika infection in pregnancy are reasonable, given the established link between Zika and developmental anomalies. But the panicked tenor of the conversation about Zika and pregnancy has become troubling.

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In Latin America, where Zika has rampantly spread in the last few years, extremely tough abortion restrictions often deprive patients of reproductive autonomy, to the point where many face the possibility of criminal charges for seeking abortion. Currently, requests for abortions are spiking. Some patients have turned to services like Women on Web, which provides assistance with accessing medical abortion services in nations where they are difficult or impossible to find.

For pro-choice advocates in the United States, the situation in Latin America is further evidence of the need to protect abortion access in our own country. Many have specifically using Zika to advocate against 20-week limits on abortion—which are already unconstitutional, and should be condemned as such. Less than 2 percent of abortions take place after 20 weeks, according to the Guttmacher Institute. The pro-choice community is often quick to defend these abortions, arguing that the vast majority take place in cases where the life of the patient is threatened, the fetus has anomalies incompatible with life, or the fetus has severe developmental impairments. Microcephaly, though rare, is an example of an impairment that isn’t diagnosable until late in the second trimester or early in the third, so when patients opt for termination, they run smack up against 20-week bans.

Thanks to the high profile of Zika in the news, fetal anomalies are becoming a talking point on both sides of the abortion divide: Hence the dire headlines sensationalizing the idea that politicians want to force patients to give birth to disabled children. The implication of leaning on these emotional angles, rather than ones based on the law or on human rights, is that Zika causes disabilities, and no one would want to have a disabled child. Some of this rhetoric is likely entirely subconscious, but it reflects internalized attitudes about disabled people, and it’s a dogwhistle to many in the disability community.

Anti-choicers, meanwhile, are leveraging that argument in the other direction, suggesting that patients with Zika will want to kill their precious babies because they aren’t perfect, and that therefore it’s necessary to clamp down on abortion restrictions to protect the “unborn.” Last weekend, for instance, failed presidential candidate Sen. Marco Rubio (R-FL) announced that he doesn’t support access to abortion for pregnant patients with the Zika virus who might, as a consequence, run the risk of having babies with microcephaly. Hardline anti-choicers, unsurprisingly, applauded him for taking a stand to protect life.

Both sides are using the wrong leverage in their arguments. An uptick in unmet abortion need is disturbing, yes—because it means that patients are not getting necessary health care. While it may be Zika exposing the issue of late, it’s a symptom, not the problem. Patients should be able to choose to get an abortion for whatever reason and at whatever time, and that right shouldn’t be defended with disingenuous arguments that use disability for cover. The issue with not being able to access abortions after 20 weeks, for example, isn’t that patients cannot access therapeutic abortions for fetuses with anomalies, but that patients cannot access abortions after 20 weeks.

The insistence from pro-choice advocates on justifying abortions after 20 weeks around specific, seemingly involuntary instances, suggests that so-called “late term abortions” need to be circumstantially defended, which retrenches abortion stigma. Few advocates seem to be willing to venture into the troubled waters of fighting for the right to abortions for any reason after 20 weeks. In part, that reflects an incremental approach to securing rights, but it may also betray some squeamishness. Patients don’t need to excuse their abortions, and the continual haste to do so by many pro-choice advocates makes it seem like a 20-week or later abortion is something wrong, something that might make patients feel ashamed depending on their reasons. There’s nothing shameful about needing abortion care after 20 weeks.

And, as it follows, nor is there ever a “bad” reason for termination. Conservatives are fond of using gruesome language targeted at patients who choose to abort for apparent fetal disability diagnoses in an attempt to shame them into believing that they are bad people for choosing to terminate their pregnancies. They use the specter of murdering disabled babies to advance not just social attitudes, but actual policy. Republican Gov. Mike Pence, for example, signed an Indiana law banning abortion on the basis of disability into law, though it was just blocked by a judge. Ohio considered a similar bill, while North Dakota tried to ban disability-related abortions only to be stymied in court. Other states require mandatory counseling when patients are diagnosed with fetal anomalies, with information about “perinatal hospice,” implying that patients have a moral responsibility to carry a pregnancy to term even if the fetus has impairments so significant that survival is questionable and that measures must be taken to “protect” fetuses against “hasty” abortions.

Conservative rhetoric tends to exceptionalize disability, with terms like “special needs child” and implications that disabled people are angelic, inspirational, and sometimes educational by nature of being disabled. A child with Down syndrome isn’t just a disabled child under this framework, for example, but a valuable lesson to the people around her. Terminating a pregnancy for disability is sometimes treated as even worse than terminating an apparently healthy pregnancy by those attempting to demonize abortion. This approach to abortion for disability uses disabled people as pawns to advance abortion restrictions, playing upon base emotions in the ultimate quest to make it functionally impossible to access abortion services. And conservatives can tar opponents of such laws with claims that they hate disabled people—even though many disabled people themselves oppose these patronizing policies, created to address a false epidemic of abortions for disability.

When those on either side of the abortion debate suggest that the default response to a given diagnosis is abortion, people living with that diagnosis hear that their lives are not valued. This argument implies that life with a disability is not worth living, and that it is a natural response for many to wish to terminate in cases of fetal anomalies. This rhetoric often collapses radically different diagnoses under the same roof; some impairments are lethal, others can pose significant challenges, and in other cases, people can enjoy excellent quality of life if they are provided with access to the services they need.

Many parents facing a prenatal diagnosis have never interacted with disabled people, don’t know very much about the disability in question, and are feeling overwhelmed. Anti-choicers want to force them to listen to lectures at the least and claim this is for everyone’s good, which is a gross violation of personal privacy, especially since they don’t back their advocacy up with support for disability programs that would make a comfortable, happy life with a complex impairment possible. The pro-choice movement, on the other hand, often finds itself caught between the imperative to defend abortion as an absolute personal right and suggesting that some lived potentials are worth more than others. It’s a disturbing line of argument to take, alienating people who might otherwise be very supportive of abortion rights.

It’s clearly tempting to use Zika as a political football in the abortion debate, and for conservatives, doing so is taking advantage of a well-established playbook. Pro-choicers, however, would do better to walk off the field, because defending abortion access on the sole grounds that a fetus might have a disability rings very familiar and uncomfortable alarm bells for many in the disability community.

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