Analysis Abortion

Rape Exceptions? Many Women in the United States Are Already Living That Nightmare [TRIGGER]

Kimberly Inez McGuire

"Abortion exceptions" are human rights violations and bad public health policy. Any administration that banned abortion "with exceptions" would force every single woman who needs an abortion to live a nightmare scenario: hope that you qualify and can actually get an abortion, or be denied access altogether. Today, all over the country, many women are already living that nightmare.

Much attention has been paid in recent weeks and months to comments by conservative politicians who’ve staked out an extreme-right “no exceptions” position on abortion, with a particular focus so-called “rape exceptions.” Presidential candidate Mitt Romney, while not distancing himself from supporting the Todd Akins and Richard Mourdocks of the world, has attempted to position himself as more “moderate” on the issue of abortion by stating that he will make abortion a crime in all cases except to protect the life of the woman, and in the cases of pregnancies that result from rape or incest. In taking this position he intends to be seen as reasonable, perhaps even compassionate. But when the rubber hits the road,we see that focusing on abortion exceptions is distracting political theater, and, more importantly, disastrous public policy.

Last week, in a segment profiling this ongoing debate, Rachel Maddow asked a question: how would a President Romney implement the policy he’s endorsed, namely to ban abortion in all but a few exceptional cases. Good question. Sadly, the question was left unanswered. Ms. Maddow offered some hypothetical scenarios: (who decides when a woman has been raped? a court? a cop? Mitt Romney?) but did not take the  issue further. It’s too bad she didn’t.

Now, I love Rachel, but she missed something really big. We do not, in fact, need speculation or imaginative doomsday scenarios to know how something like a “rape exception” for abortion works in the real world. Due to existing real-life restrictions on insurance coverage for abortion, poor women live with this reality every single day.

The fact that Roe v. Wade still stands means little to a woman without enough money to afford an abortion if she needs one. For poor women, eligible for public health insurance through Medicaid, coverage for abortion is unfairly withheld, except in the “exceptional” cases of rape, incest, and to protect the mother’s life. This is known as the Hyde amendment. What this means in practice is that in order to access abortion services, a poor woman must do one of three things: qualify for one of those narrow exceptions or somehow raise hundreds or thousands of dollars on her own to pay for the procedure out of pocket. A third scenario—and one that has been documented in recent reports—is perhaps most concerning: a woman who cannot afford an abortion from a safe, legal provider may seek an illegal abortion, cross the border to seek an abortion in Mexico, or take extreme measures to end the pregnancy herself without the care of a health provider.

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A woman trying to raise the money on her own, while the clock ticks on how far into pregnancy she can go and still access an abortion, is often faced with untenable decisions like forgoing electricity or rent, selling personal belongings, taking a second job, or borrowing money from family and friends.

A woman who qualifies for one the federal exceptions (rape, incest, or threat to life) has an altogether different, though no less formidable challenge. How does the government (in this case, a state Medicaid office) decide who has been raped for the purposes of enabling a woman to access insurance coverage for abortion? Depends who you ask.

South Dakota, for example, in clear violation of federal law, simply refuses to provide coverage for abortion in the case of rape or incest. Some states require a doctor’s note (or two!) to “prove” rape or incest. Other states require a police report—especially troubling given the tiny percentage of rapes that are ever reported to police. Some states don’t require a police report, but will tell you something different when you call the state Medicaid office. In fact, a recent study shows that Medicaid offices being misinformed, unhelpful, or even judgmental when a woman calls to inquire about insurance coverage for abortion through a rape exception is not at all uncommon. In one assessment, only 37 percent of women ended up getting eligible abortions funded by Medicaid. The result is that most women, even those who would qualify for an exception, are back to square one: raise the money on her own or carry a pregnancy to term against her will.

What does this mean? It means that poor women (for whom affordability is tantamount to access) are already living the logical conclusion of Romney’s so-called moderate position on abortion. It is only in very limited cases that poor women are even theoretically allowed to access safe and legal abortion, and the messy business of operationalizing these exceptions simply does not work. It turns out, surprise surprise, that bureaucrats are not in a great position to decide who has or not been raped and therefore who can access abortion under these unfairly restrictive policies.

These restrictions on coverage for abortion, including their unworkable and arbitrary “exceptions,” put abortion out of reach for women who already face numerous barriers to accessing health care, privilege one woman’s reasons for having an abortion over someone else’s, and don’t even do a good job of ensuring that a woman who qualifies for an exception actually, in practice, gets the case to which she’s legally entitled. On top of it all, these restrictions disproportionately impact women of color, who are more likely to need abortion services, and less likely to be able to afford them.

Any administration that banned abortion “with exceptions” would seek to force every single woman who needs an abortion to live a nightmare scenario: hope that you qualify for an exception, and that you can actually get it, or be denied access altogether. But we can’t forget that today, all over the country, many women are already living that nightmare.

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.”

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 

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