Analysis Law and Policy

NARAL Takes Pro-Choice Battle to the States

Adele M. Stan

NARAL Pro-Choice America President Ilyse Hogue announced a new electoral strategy at the group's news conference on its annual report: "go deep, go early" into state races that send a pro-choice message.

NARAL Pro-Choice America President Ilyse Hogue has a message for opponents of women’s rights: No longer will her organization content itself with playing defense. At a meeting with reporters at the organization’s Washington, D.C., headquarters, Hogue said the group is going on offense—taking the fight to the states, where an unprecedented level of legislative activity last year targeted reproductive freedom, including access to abortion and birth control.

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In its annual report, Who Decides? The Status of Women’s Reproductive Rights in the United States, NARAL tallies up the damage along with several success stories, such as California’s expansion of abortion access and Albuquerque’s rejection of a 20-week abortion ban. Good news aside, NARAL’s researchers find that some 24 states enacted 53 anti-choice measures in 2013 alone. Arkansas won the prize for passing the most anti-choice measures, a total of eight in a single year.

Add to that the recent introduction of HR 7, an omnibus anti-choice bill in the U.S. House of Representatives that would, among other measures, use the tax code to penalize some women who have abortions, as well as employers who provide health plans that cover abortion care, and the political landscape for women’s rights looks perilous indeed.

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Citing a 2013 NBC/Wall Street Journal poll that showed 70 percent of Americans support the Supreme Court’s decision in Roe v. Wade, the 1973 case that legalized abortion in the United States, Hogue said, “This is disturbing, and completely out of line with the American people. But the good news is, we’re going to take aggressive action—in Congress, and in the legislatures, in the courts, and at the ballot box.”

The assault on women’s rights in Arkansas and other states stems, in part, from the vast flows of outside campaign cash that flowed into the state, thanks to the Supreme Court’s 2010 decision in Citizens United v. the Federal Election Commission, a major factor in turning Arkansas’ state legislature from a Democratic to Republican majority for the first time since the post-Civil War Reconstruction era.

Similar dynamics yielded similar results in other states, yielding anti-abortion measures that passed into law tucked into North Carolina’s motorcycle safety bill and Ohio’s budget bill. North Dakota passed a ban on all abortions after six weeks of pregnancy (currently blocked by a federal judge). And who can forget Texas, where Democratic state Sen. Wendy Davis’ 13-hour filibuster riveted the nation’s attention, even if it ultimately failed to prevent the passage of that state’s most recent cluster of abortion restrictions, thanks to a gaming of the system by Republican Gov. Rick Perry, who ultimately called three special legislative sessions to see the bill passed.

In addition to enacting a ban on abortion after 20 weeks post-fertilization, one provision of the bill requires doctors who are abortion providers to gain admitting privileges to a hospital within 30 miles of their practices, with no requirement that hospitals grant the privileges. That provision alone is responsible for about one-third of Texas abortion clinics closing or no longer providing abortion procedures (though four clinics have been able to re-open).

A New Focus

“The state focus is a departure from our usual focus here at NARAL Pro-Choice America,” said Erika West, the organization’s political director, in her remarks. “We have been accustomed to maintaining the federal electoral space, while our affiliates handled state races. But it’s clear now that our best focus is to stop these politicians before they’re in place to do more damage.”

The organization is seeking to involve itself in races where it can build “firewalls” against anti-choice legislation, West said—essentially looking for races in which it can tip the balance away from complete control of all branches of government and both chambers of the legislature by anti-choice players. As of 2013, as shown in a graph in the Who Decides? report, 21 states were fully controlled by an anti-choice governor and legislature; only seven states were fully controlled by pro-choice lawmakers and governors.

This year will see gubernatorial races in 36 states, as well as more than 6,000 state legislative seats, according to Ballotpedia. In addition, all members of the U.S. House face re-election battles, and 35 seats in the U.S. Senate will be decided in 2014.

West pointed to the 2013 defeat of Ken Cuccinelli, an anti-choice Republican, in the Virginia governor’s race, as a model for election campaign partnerships between NARAL Pro-Choice America and the group’s state-based affiliates. After presentations by West and Crane, Hogue was asked by a reporter whether the group was disappointed by the decision of newly inaugurated Gov. Terry McAuliffe, who ran as a pro-choice Democrat, to retain Bill Hazel as secretary of health and human resources. Hazel was responsible for implementing the anti-choice policies of Bob McDonnell, who preceded McAuliffe in the governor’s mansion.

“I think our Virginia affiliate has been outspoken in their disappointment—we are, as well,” Hogue replied. “And our approach to that in 2014 is making very clear that the governors that we support are held accountable for what they do after the election, and its impact on women’s health and reproductive freedom during their term.”

Crane explained why restrictions such as those that marked 2013 as the year of the “war on women” pass into law despite the essentially pro-choice views of a majority of Americans.

For starters, Crane said, the way in which anti-choice legislators have flooded the zone with abortion restrictions and other anti-choice measures leaves the average voter unable to keep up with the torrent of legislative activity. But even more importantly, she said, “the elected officials who move these restrictions obfuscate their position.”

“They bury what they’re doing,” she continued. “They find a bill on motorcycle safety or sharia law or a massive budget bill [in which to insert anti-choice provisions]. And those are really hard for the American public to follow.”

Overcoming Obstacles

Rewire asked NARAL leaders to address the structural impediments to unseating anti-choice state legislators and members of the U.S. House of Representatives (which has an anti-choice majority), given the dynamics that yielded the current set of incumbents (backlash against the election of President Barack Obama, combined with the nearly limitless flow of money into Republican campaigns, thanks to Citizens United), and the 2010 redrawing of legislative and congressional district lines to ensure incumbents’ re-election.

Crane dated the origins of the current spate of anti-choice legislation in a Supreme Court decision far earlier than the 2010 Citizens United verdict; it all began in 1992, with the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, Crane said, when the composition of the Court changed because of the election of anti-choice presidents Ronald Reagan and George H.W. Bush in 1980 and 1988, respectively. The Casey decision, Crane explained, “lower[ed] the standard of review for state restrictions—and you see them explode after 1992.” She posted a bar graph that showed a steep climb in restrictions passed since 1995. Prior to 1992, she said, “many state restrictions were attempted,” only to be struck down by the Supreme Court.

In many states where the harshest attacks on women’s rights have taken place, voting rights and environmental regulations are also under attack. “NARAL is very proud to have a policy supporting democratic access—voting rights, redistricting,” Hogue said, after acknowledging the need for pro-choice activists to work in coalition with civil rights groups. “And it’s no coincidence that when we see the individual voter suppressed the first thing that gets thrown under the bus is women’s rights.”

Despite the electoral threats to reproductive freedom that lie ahead, there are bright spots, Hogue said, that bear out her assertion that access to abortion and contraception can be winning issues, even in red states. She pointed to the current gubernatorial contest in Kansas—”a deep red state”—where incumbent Sam Brownback, an anti-choice Republican well known in the state, is “running neck and neck” with state Rep. Paul Davis, a pro-choice Democrat with little name recognition. Hogue attributed Brownback’s apparent weakness to, in part, his anti-choice views, saying that the vulnerability of the longtime Kansas politician sends a signal to gubernatorial candidates running in other states.

Because of redistricting and other structural obstacles, “we recognize [that] reversing this trend is a long game,” Hogue said. “We need to make a start in 2014, but it’s going to take several cycles for it to take hold, so a key criteria are going to be races that send signals nationally. … And that is part of why our strategy is to go deep, go early, and show that even in what are considered red states, this is still a crossover issue; it’s a winning issue if you have the right position on it.”

News Politics

Anti-Choice Democrats: ‘Open The Big Tent’ for Us

Christine Grimaldi & Ally Boguhn

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America gathered Wednesday in Philadelphia during the party’s convention to honor Louisiana Gov. John Bel Edwards (D) for his anti-choice viewpoints, and to strategize ways to incorporate their policies into the party.

The group attributed Democratic losses at the state and federal level to the party’s increasing embrace of pro-choice politics. The best way for Democrats to reclaim seats in state houses, governors’ offices, and the U.S. Congress, they charged, is to “open the big tent” to candidates who oppose legal abortion care.

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Democrats for Life of America members repeatedly attempted to distance themselves from Republicans, reiterating their support for policies such as Medicaid expansion and paid maternity leave, which they believe could convince people to carry their pregnancies to term.

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Their strategy, however, could have been lifted directly from conservatives’ anti-choice playbook.

The group relies, in part, on data from Marist, a group associated with anti-choice polling, to suggest that many in the party side with them on abortion rights. Executive Director Kristen Day could not explain to Rewire why the group supports a 20-week abortion ban, while Janet Robert, president of the group’s board of directors, trotted out scientifically false claims about fetal pain

Day told Rewire that she is working with pro-choice Democrats, including Sen. Kirsten Gillibrand and Rep. Rosa DeLauro, both from New York, on paid maternity leave. Day said she met with DeLauro the day before the group’s event.

Day identifies with Democrats despite a platform that for the first time embraces the repeal of restrictions for federal funding of abortion care. 

“Those are my people,” she said.

Day claimed to have been “kicked out of the pro-life movement” for supporting the Affordable Care Act. She said Democrats for Life of America is “not opposed to contraception,” though the group filed an amicus brief in U.S. Supreme Court cases on contraception. 

Democrats for Life of America says it has important allies in the U.S. House of Representatives and the U.S. Senate. Sens. Joe Donnelly (IN), Joe Manchin (WV), and Rep. Dan Lipinski (IL), along with former Rep. Bart Stupak (MI), serve on the group’s board of advisors, according to literature distributed at the convention.

Another alleged ally, Sen. Bob Casey (D-PA), came up during Edwards’ speech. Edwards said he had discussed the award, named for Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey, which opened up a flood of state-level abortions restrictions as long as those anti-choice policies did not represent an “undue burden.”

“Last night I happened to have the opportunity to speak to Sen. Bob Casey, and I told him … I was in Philadelphia, receiving this award today named after his father,” Edwards said.

The Louisiana governor added that though it may not seem it, there are many more anti-choice Democrats like the two of them who aren’t comfortable coming forward about their views.

“I’m telling you there are many more people out there like us than you might imagine,” Edwards said. “But sometimes it’s easier for those folks who feel like we do on these issues to remain silent because they’re not going to  be questioned, and they’re not going to be receiving any criticism.”

During his speech, Edwards touted the way he has put his views as an anti-choice Democrat into practice in his home state. “I am a proud Democrat, and I am also very proudly pro-life,” Edwards told the small gathering.

Citing his support for Medicaid expansion in Louisiana—which went into effect July 1—Edwards claimed he had run on an otherwise “progressive” platform except for when it came to abortion rights, adding that his policies demonstrate that “there is a difference between being anti-abortion and being pro-life.”

Edwards later made clear that he was disappointed with news that Emily’s List President Stephanie Schriock, whose organization works to elect pro-choice women to office, was being considered to fill the position of party chair in light of Rep. Debbie Wasserman Schultz’s resignation.

“It wouldn’t” help elect anti-choice politicians to office, said Edwards when asked about it by a reporter. “I don’t want to be overly critical, I don’t know the person, I just know that the signal that would send to the country—and to Democrats such as myself—would just be another step in the opposite direction of being a big tent party [on abortion].” 

Edwards made no secret of his anti-choice viewpoints during his run for governor in 2015. While on the campaign trail, he released a 30-second ad highlighting his wife’s decision not to terminate her pregnancy after a doctor told the couple their daughter would have spina bifida.

He received a 100 percent rating from anti-choice organization Louisiana Right to Life while running for governor, based off a scorecard asking him questions such as, “Do you support the reversal of Roe v. Wade?”

Though the Democratic Party platform and nominee have voiced the party’s support for abortion rights, Edwards has forged ahead with signing numerous pieces of anti-choice legislation into law, including a ban on the commonly used dilation and evacuation (D and E) procedure, and an extension of the state’s abortion care waiting period from 24 hours to 72 hours.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.