News Abortion

Blogger Says Women Should be Forced to Cross State Lines for Abortions Because Decision “Should Be a Tough One”

Robin Marty

Is only one abortion clinic in the state really the same as "down the street?"

As we get closer to the point where Mississippi may end up being the only state without public access to abortion, anti-choice advocates just can’t help but justify their excitement over seeing more roadblocks put in place. Abortion, they reason, is always wrong and a bad decision so, if you are going to go through with it, it needs to be as long, as expensive, as inconvenient, and as punishing as possible.

Via Jenny Erikson at the Stir:

Abortion is still perfectly legal in Mississippi, and of course doctors in hospitals will still perform them when medically necessary. When it’s save the life of the mother or they both die, I can’t imagine a single physician that wouldn’t do just that. Something about “first do no harm.”

Women will also be able to cross state lines to terminate their pregnancies. Yes, it makes it harder to get an abortion. Call me crazy, but I believe that making the decision to end the life of your unborn child should be a tough one. By having to make bigger plans than going down the street to the local clinic, maybe women will think more carefully about their choices. Maybe, just maybe, the absence of easy abortions will make a teenager think twice about having sex.

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Are babies the rightful punishment for having sex? Apparently so, and if you have the audacity to try to shirk that punishment, she believes you should at least suffer as much as possible in the process.

As the only clinic within a 200 mile radius, Jackson Women’s Health Organization isn’t exactly a “down-the-street” option for many of the women in the state. But at least it is in the state. Yet even that is “too easy” for those who oppose a woman’s legal right to choose.

Analysis Law and Policy

Why We Should All Be Afraid of the Coming Supreme Court Term

Jessica Mason Pieklo

The Roberts Court hasn't decided all the cases it will take yet, but the ones on its docket show this term shaping up to be one of the most contentious during Chief Justice John Roberts' tenure.

Remember how good this summer’s win for marriage equality felt? I mean, sure, Justice Anthony Kennedy’s opinion in Obergefell v. Hodges embraced a very traditional, patriarchal view of marriage, and the opinion is pretty mushy in terms of constitutional analysis, but it was so nicely written! And most importantly, it struck down as unconstitutional state-level same-sex marriage bans, removing one significant obstacle in the quest for full LGBTQ equality.

Let’s hold on to those good feelings from Obergefell as long as we can. With the slate of cases the Roberts Court has agreed to hear so far, and a few other likely contenders waiting in the wings, I have a feeling it will be a while before we’re warm again with the glow of social justice. This term is shaping up to be one of the more contentious in the culture wars, and that’s saying a lot for the Roberts Court.

So, here’s a list of cases to watch in the coming term. It’s gonna be a doozy, folks.

Workers’ Rights on the Ropes. Again. 

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One of the Roberts’ Court most dubious legacies is its decimation of workers’ rights, and this term presents the conservative majority with yet more opportunities to wreak havoc. Among the first of these is Tyson Foods v. Bouaphakeo, which could make it infinitely more difficult for plaintiffs to band together and bring class-action labor lawsuits against employers to hold them accountable for things like wage theft.

By far the biggest workers’ rights case on the Court’s docket so far, though, is Friedrichs v. California, which looks at the fees unions collect, sometimes called “agency fees” or “fair share” fees. The rationale is that all workers, even those not in the union, typically benefit from union negotiations, in the form of higher wages and greater benefits. But those protections come with bargaining costs, such as lawyers’ fees. Currently, unions require all workers to pay a share of those costs, regardless of whether they join the union. In Friedrichs, the Roberts Court will look at whether it is constitutional for public sector employee unions to collect those fees. A ruling against the union in Friedrichs could cut off an important funding stream that allows the collective bargaining process to work.

Lastly, waiting in the wings is Home Care Association v. Weil, a case that challenges new rules issued by the Department of Labor requiring some categories of domestic workers to be eligible for minimum wages and overtime pay. The regulations are set to take effect on October 13, and three trade organizations—the Home Care Association of America, the International Franchise Association, and the National Association for Home Care and Hospice—have filed an emergency request with Chief Justice John Roberts to take up their challenge. The Court has not yet said whether it will. If it does, and rules in favor of the associations, domestic employees’ rights could take a major hit.

Will the Court Protect Abortion Rights and Contraception Access? 

OK, I’m cheating a little bit here. So far, the Roberts Court doesn’t have either an abortion rights or a contraception case on its docket. But smart money is on at least one showing up before the year’s end.

The Court is most likely to take up Whole Woman’s Health v. Cole, the fight over HB 2, Texas’ clinic shutdown law. HB 2 requires all abortion providers to obtain local hospital admitting privileges, and every reproductive health-care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC). Those mandates have forced the closure of over half the clinics in the state so far. The Roberts Court has already stepped into this case twice to prevent HB 2 from closing even more clinics, both times to overrule Fifth Circuit decisions upholding the Texas requirements. Attorneys representing providers have asked the Roberts Court to permanently block both provisions, and I think the Court will do so.

Here’s why: It’s been almost ten years since the Court has taken an abortion rights case. The Court took no formal action at the close of last term in Jackson v. Currier, a nearly identical case out of Mississippi, where the last remaining abortion clinic in the state faces closure. That means the Court is likely waiting for the attorneys in the Texas case to finish their briefing before hearing both Cole and Currier together. It can then decide just how far states can go in targeting abortion clinics for closure before violating the Constitution.

A little less clear is whether or not the Roberts Court will take up challenges by religiously affiliated nonprofits to the religious accommodation to the Affordable Care Act’s birth control benefit. By last count, there were seven pending requests, including from Little Sisters of the Poor, for the Supreme Court to determine whether completing a form that allows the organizations to avoid complying with the birth control benefit in the Affordable Care Act unduly burdens their religious rights. Up until a few weeks ago, the federal courts all agreed the accommodation process was not a burden on religious rights. But then the very conservative U.S. Court of Appeals for the Eighth Circuit went and ruled the accommodation process is a burden on religious rights, increasing the likelihood that the Roberts Court steps in to settle the dispute.

If it does, we’ll see just how strong Justice Kennedy’s reasoning was in Hobby Lobby v. Burwellthe case that granted religious accommodations to the benefit to for-profit companies. In Hobby Lobby, the Court presumed the accommodation process was reasonable and extended it to for-profit businesses. This latest round of challenges will force the Court, should it take them, to definitively rule on how reasonable the accommodation process is. A ruling for the challengers would further roll back contraception access and threaten the birth control benefit altogether.

Affirmative Action, Round Two 

Back in 2012, when Abigail Fisher first took her case against the University of Texas at Austin’s use of race-based admissions in its undergraduate program to the Supreme Court, pretty much everyone, myself included, thought the “post-racial” Roberts Court would gut the policy. That didn’t happen. Instead, Justice Kennedy ordered the case back to the appellate court for another look. The Fifth Circuit took one, and again endorsed UT Austin’s admissions policy. And again, Fisher appealed that decision to the Supreme Court. Will the Supreme Court kill off affirmative action policies this time around? Once again, the likely key to that answer lies with Justice Kennedy.

Election Law Cases in an Election Year. What Can Go Wrong? 

If the Roberts’ Court record on workers’ rights is bad, its record on election and campaign finance law is worse. This term, the Court will dig into the part of the 14th Amendment that deals with the allocation of seats in the U.S. House of Representatives in Evenwel v. Abbott. That 14th Amendment provision states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in that state, excluding Indians not taxed.” The phrase “whole number of persons,” requires non-citizens to all be counted in determining how many House members a state receives, even though these individuals counted cannot vote. That means places like Texas and California, which have significant numbers of non-citizen residents, receive extra representation in the House for those non-citizens. The plaintiffs in Evenwel want the Roberts Court to change the way states draw their districts so that they include an equal number of voters rather than an equal number of residents. If the Court sides with the plaintiffs, it could make the House even more conservative.

Deep Dive Into the Death Penalty and the Eighth Amendment

If there is one spot of hope in all this, it is the possibility, like Justice Antonin Scalia hinted at in some public comments, that this term will bring the end to the death penalty. At the close of last term in Glossip v. Gross, Justices Stephen Breyer and Ruth Bader Ginsburg stated in their dissents that they believe it “highly likely the death penalty violates the 8th Amendment.” The Eighth Amendment prohibits excessive bail, fines, and “cruel and unusual punishment.” Against the backdrop of an ongoing national conversation about the brutality of state-execution methods, the Court has granted review this term of five Eighth Amendment cases so far. Not all of these deal with the death penalty. But at least one, Hurst v. Florida, takes on a state’s capital punishment scheme directly, with the justices set to examine whether or not the Florida death penalty is constitutional. A broad ruling in Hurst v. Florida could spell the beginning of the end of state-mandated executions.

The Court’s term begins Monday, October 6. It will likely run through the month of June.

Commentary Abortion

Losing My Lege: Texas Legislator Thinks Pregnant People Should be Forced to Carry Dead Fetuses to “Do Penance”

Andrea Grimes

Here's a man who is saying that people who are carrying wanted, but unsustainable, pregnancies must be compelled by the state to carry their fetuses to term because they, and we, are sinners.

Losing My Lege is a weekly column about the goings-on in and around the Austin capitol building during the 84th Texas legislature.

Last week, a grown man stood on the floor of the Texas House of Representatives and argued that the state must force pregnant Texans to try to carry dying, deceased, or non-viable fetuses as long as they can. Anything less, said state Rep. Matt Schaefer (R-Tyler), wouldn’t be “pro-life.”

These fetuses “are going to suffer, they’re going to feel pain,” just as adults with terminal illnesses do, said Schaefer, a freshman Tea Party politician from East Texas. “That’s part of the human condition, when sin entered the world, and it grieves us all.”

Y’all, I just need us to sit with that statement for a little while. Here’s a man who is saying that people who are carrying wanted, but unsustainable, pregnancies must be compelled by the state to carry their fetuses to term because they, and we, are sinners. And because Matt Schaefer is a sinner. In other words, those families are doing penance on everyone else’s behalf.

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This is, of course, a burden predicated on Schaefer’s personal and particular interpretation of the Christian faith. It also conveniently serves to bolster his image with right-wing voters without ever requiring he lift a compassionless finger.

Because no matter how hard, or how much, or how long any of us sin, I suspect Matt Schaefer will never be forced to carry a dying fetus to term against the advice of his doctors or his own wishes.

I guess pregnant Texans who are grieving the loss of unsustainable pregnancies will just have to do Schaefer’s penance for him. Maybe that’s part of God’s mission for people who aren’t Matt Schaefer, according to the gospel of Matt Schaefer.

And Schaefer is using his faith to justify inflicting state-mandated pain on people who are already experiencing terrible loss. Schaefer’s proposal, which was ultimately pulled down as part of a procedural quibble after it had initially passed, would have banned abortion after 20 weeks if a fetus has a “severe and irreversible abnormality.” That goes so far beyond cruel as to be almost unimaginable.

But of course, this isn’t unimaginable. Because we know Texans have already been forced to give birth to dying or dead fetuses. Even under current law, doctors who are afraid of running afoul of existing anti-abortion statutes often believe they can’t provide their patients with the care their patients want, or the care that doctors themselves recommend, when fetuses cannot live outside the womb. As a result, families have been forced to carry unsustainable pregnancies to term. And they have told us their stories.

We know, beyond doubt, that when lawmakers insert themselves into the private decisions of families who are forced to end wanted, but unsustainable, pregnancies, they cause nothing but more heartbreak. Because laws—and these lawmakers—are not built for nuance. They are built for cruel and cold rhetoric, only meant to appease Texas’ far, farther, farthest right-wing voters.

Schaefer’s proposal, which was tacked on as an amendment to a bill about the bureaucratic operations of the state health department, as if it were some kind of especially abhorrent afterthought, affects just one group of people. It targets Texans who don’t want their dying fetuses—or, perhaps, their babies, if that’s the language they choose to use, and on which subject I defer entirely to families going through this difficult process—to be born, only to suffer for minutes, hours, or days.

Those Texans, under Schaefer’s proposed rule, have no choice but to suffer. Because Matt Schaefer’s God says that they, uniquely, must.

Texans who want to go through the birth process with an unsustainable pregnancy are already legally allowed to do so—and that’s a wonderful, beautiful thing. Texans should be not only allowed, but empowered, to make these decisions without the heavy-handed input of state lawmakers.

I would rebuke any law that forced pregnant Texans to terminate a pregnancy against their wishes. By the same token, I abhor a law that forces a grieving Texan to labor, and labor, and labor—when they knew they could have assuaged that suffering according to their own conscience or their own faith, had fate been more geographically amenable, or had they the means to travel out of state.

We could get into the physical consequences of state-compelled gestation: the fact that a dying or dead fetus could put the life of a pregnant Texan who becomes septic in danger, or that it could affect their future fertility. Those are real risks. They shouldn’t be ignored.

But the next (il)logical step, for Matt Schaefer and lawmakers who think as he does, would be to say that the death of a pregnant person from sepsis is simply the penance for sin. That infertility is a punishment from Godpunishment for the actions of all humans, since time immemorial. I will not walk down that gruesome road.

Because I don’t need a pregnant Texan to be on the verge of death—the remaining exception for allowable post-20 week abortion care under Schafer’s proposed law—to trust their ability to make their own decisions about when, or whether, to end an unsustainable pregnancy. I don’t need that Texan to be threatened with infertility to know that men like Matt Schaefer have no right to play politics with their lives.

Just four Republicans voted against Schaefer’s amendment, including two physicians: John Zerwas (R-Richmond) and J.D. Sheffield (R-Gatesville). Sheffield, in particular, implored his fellow GOP members to vote against it, saying that GOP lawmakers “have not been the ones taking care of the babies with the feeding tubes,” or who are sustained on machines or with artificial nutrition.

“I’m not saying those babies are less of a life for our God to treasure or less of a life for us to love,” implored Sheffield. “That is not the argument.”

He continued, asking, “Why should the heavy, blunt hand of government come into that most heart-rending decision?”

Why? I’m sorry to say that I believe I know.

It is because GOP lawmakers think they need to win primaries at all costs, and they feel that they need to pander to the state’s most conservative voters—voters who are already allowed to carry pregnancies with life-incompatible fetal anomalies to term, if that is their choice—in order to do so.

I know this because while Texas house leaders considered the procedural point of order that eventually resulted in the entire bill, including Schaefer’s amendment, being blessedly pulled down, the house’s Tea Party contingent gathered for a very public prayer on the house floor. They made sure everyone got a good look, preening and pandering to the smartphones and news photographers in the room. We’ll almost certainly see photos of that prayer huddle again come election season, as Tea Partiers glom on to Schaefer’s ghoulish version of Christianity.

Maybe the Tea Party bible doesn’t read the same as mine. When I look up Matthew 6:5, it reads: “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full.”

The reward, I suppose, would be another successful primary win. The penance? Well, that’s to be paid by someone else.


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