News Religion

When It Comes to Abortion and Contraception, Three Out of Four Americans Are On the Same Page

Robin Marty

Despite claims of a heated dispute over reproductive health, there are many places where almost everyone agrees.

Protect eggs from the moment they are fertilized, regardless of the situation. Block funding to family planning providers under the guise of “fungible” money for abortions.  Provide employers with the right to reject–on their own “moral grounds”–to contraceptive coverage in employee-earned insurance plans. These are the policy issues at the center of an ongoing political battle, despite the fact that for the vast majority of Americans, there really shouldn’t be any debate at all.

According to a Public Policy Polling poll commissioned by the Daily Kos/SEIU State of the Nation, a full 75 percent of those questioned responded that abortion bans should include exceptions in the cases of rape, incest, or life or health of the pregnant woman or girl.

“Sure, Republicans are a bit more likely to support a complete ban on abortion, but at 20 percent, they are a distinct fringe even within their own party,” writes the Daily Kos. “Considering that 30-35 percent still think George W. Bush was totally awesome, they haven’t even locked down their hardest core supporters on this.”

At the same time, the public is also adamantly against limiting access to contraception, arguing that there should be less, not more, roadblocks to obtaining birth control. In a new survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy, 75 percent of those polled said that politicians who oppose abortion need to be supportive of birth control. 

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When a vast majority of people seem to agree that abortion should never be banned without exceptions, and that those who oppose abortion need to support available birth control, why are we still letting reproductive policy be set by the minority who would refuse to allow a termination for absolutely any reason and block women from access to contraception, too?

News Abortion

Reproductive Justice Groups Hit Back at RNC’s Anti-Choice Platform

Michelle D. Anderson

Reproductive rights and justice groups are greeting the Republican National Convention with billboards and media campaigns that challenge anti-choice policies.

Reproductive advocacy groups have moved to counter negative images that will be displayed this week during the Republican National Convention (RNC) in Cleveland, while educating the public about anti-choice legislation that has eroded abortion care access nationwide.

Donald Trump, the presumptive GOP nominee for president, along with Indiana Gov. Mike Pence (R), Trump’s choice for vice president, have supported a slew of anti-choice policies.

The National Institute for Reproductive Health is among the many groups bringing attention to the Republican Party’s anti-abortion platform. The New York City-based nonprofit organization this month erected six billboards near RNC headquarters and around downtown Cleveland hotels with the message, “If abortion is made illegal, how much time will a person serve?”

The institute’s campaign comes as Created Equal, an anti-abortion organization based in Columbus, Ohio, released its plans to use aerial advertising. The group’s plan was first reported by The Stream, a conservative Christian website.

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The site reported that the anti-choice banners would span 50 feet by 100 feet and seek to “pressure congressional Republicans into defunding Planned Parenthood.” Those plans were scrapped after the Federal Aviation Administration created a no-fly zone around both parties’ conventions.

Created Equal, which was banned from using similar messages on a large public monitor near the popular Alamo historic site in San Antonio, Texas, in 2014, did not respond to a request for comment on Thursday.

Andrea Miller, president of the National Institute for Reproductive Health, said in an interview with Rewire that Created Equal’s stance and tactics on abortion show how “dramatically out of touch” its leaders compared to where most of the public stands on reproductive rights. Last year, a Gallup poll suggested half of Americans supported a person’s right to have an abortion, while 44 percent considered themselves “pro-life.”

About 56 percent of U.S. adults believe abortion care should be legal all or most of the time, according to the Pew Research Center’s FactTank.

“It’s important to raise awareness about what the RNC platform has historically endorsed and what they have continued to endorse,” Miller told Rewire.

Miller noted that more than a dozen women, like Purvi Patel of Indiana, have been arrested or convicted of alleged self-induced abortion since 2004. The billboards, she said, help convey what might happen if the Republican Party platform becomes law across the country.

Miller said the National Institute for Reproductive Health’s campaign had been in the works for several months before Created Equal announced its now-cancelled aerial advertising plans. Although the group was not aware of Created Equal’s plans, staff anticipated that intimidating messages seeking to shame and stigmatize people would be used during the GOP convention, Miller said.

The institute, in a statement about its billboard campaign, noted that many are unaware of “both the number of anti-choice laws that have passed and their real-life consequences.” The group unveiled an in-depth analysis looking at how the RNC platform “has consistently sought to make abortion both illegal and inaccessible” over the last 30 years.

NARAL Pro-Choice Ohio last week began an online newspaper campaign that placed messages in the Cleveland Plain Dealer via Cleveland.com, the Columbus Dispatch, and the Dayton Daily News, NARAL Pro-Choice Ohio spokesman Gabriel Mann told Rewire.

The ads address actions carried out by Created Equal by asking, “When Did The Right To Life Become The Right To Terrorize Ohio Abortion Providers?”

“We’re looking to expose how bad [Created Equal has] been in these specific media markets in Ohio. Created Equal has targeted doctors outside their homes,” Mann said. “It’s been a very aggressive campaign.”

The NARAL ads direct readers to OhioAbortionFacts.org, an educational website created by NARAL; Planned Parenthood of Greater Ohio; the human rights and reproductive justice group, New Voices Cleveland; and Preterm, the only abortion provider located within Cleveland city limits.

The website provides visitors with a chronological look at anti-abortion restrictions that have been passed in Ohio since the landmark decision in Roe v. Wade in 1973.

In 2015, for example, Ohio’s Republican-held legislature passed a law requiring all abortion facilities to have a transfer agreement with a non-public hospital within 30 miles of their location. 

Like NARAL and the National Institute for Reproductive Health, Preterm has erected a communications campaign against the RNC platform. In Cleveland, that includes a billboard bearing the message, “End The Silence. End the Shame,” along a major highway near the airport, Miller said.

New Voices has focused its advocacy on combatting anti-choice policies and violence against Black women, especially on social media sites like Twitter.

After the police killing of Tamir Rice, a 12-year-old Black boy, New Voices collaborated with the Repeal Hyde Art Project to erect billboard signage showing that reproductive justice includes the right to raise children who are protected from police brutality.

Abortion is not the only issue that has become the subject of billboard advertising at the GOP convention.

Kansas-based environmental and LGBTQ rights group Planting Peace erected a billboard depicting Donald Trump kissing his former challenger Sen. Ted Cruz (R-Texas) just minutes from the RNC site, according to the Plain Dealer.

The billboard, which features the message, “Love Trumps Hate. End Homophobia,” calls for an “immediate change in the Republican Party platform with regard to our LGBT family and LGBT rights,” according to news reports.

CORRECTION: A version of this article incorrectly stated the percentage of Americans in favor of abortion rights. 

Commentary Law and Policy

Three Constitutional Basics Every Abortion Rights Supporter Should Know

Bridgette Dunlap

As the biggest reproductive rights case in decades looms in the U.S. Supreme Court, it's more important than ever for advocates to be well informed.

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—that the 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 persisted that 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, they are 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 is and 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.