News Abortion

Kentucky Lawmaker Attempts to Define Abortion as Domestic Violence

Emily Crockett

According to Kentucky Rep. Joe Fischer, who has attached a 20-week abortion ban to a domestic violence bill, "The most brutal form of domestic violence is the violence against unborn children.”

Kentucky state Rep. Joe Fischer (R-Fort Thomas) has added an amendment banning abortions at 20 weeks to a domestic violence bill, saying that “the most brutal form of domestic violence is the violence against unborn children.”

The bill, HB 8, would expand domestic violence protections and is strongly supported by Kentucky house Democrats. Under current Kentucky law, only couples who are currently married or living together can get protective orders against an abusive partner. The new bill would ensure that victims in an abusive dating relationship who do not live with their partner still have access to domestic violence protections in the courts.

Fischer’s amendment—like a similar bill that was just introduced into the Kentucky senate, and like 20-week abortion bans across the country—relies on debunked science to claim that fetuses feel pain at 20 weeks.

“This tactic is really sad,” Derek Selznick, Reproductive Freedom Project director at the ACLU of Kentucky, told Rewire. “It’s pushing a political agenda and ignores the daily realities that thousands of Kentucky women and men face trying to get protective orders from the court system.”

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House Speaker Greg Stumbo (D-Prestonsburg) said he will likely rule that Fischer’s amendments are not germane to the original legislation and can thus be ignored.

For the past decade, as John Cheves of the Lexington Herald-Leader reports, the Democratic chair of the Kentucky House Health and Welfare Committee has kept new anti-choice legislation from reaching the floor. But if Republicans were to regain control of the house in November, Kentucky women could be vulnerable to new abortion restrictions as severe and numerous as those in Texas.

“Every year we come within a hair’s breadth of awful stuff,” Selznick said. “I never feel good until [anti-choice bills] actually die.”

Kentucky’s legislature is considering at least seven other anti-choice bills this year. Many are routinely introduced every session only to die in committee, such as forced ultrasound bills or requirements that “informed consent” be given in person rather than over the phone. One such informed consent bill passed out of a senate committee on Friday.

In addition to his 20-week ban amendment, Rep. Fischer has sponsored another informed consent bill, a bill regulating abortions after a fetal heartbeat has been detected, and a bill that would forbid minors from out of state from using Kentucky’s judicial bypass system if they need a court order to get around parental consent laws. Another house bill, sponsored by Rep. Stan Lee (R-Fayette), would prohibit the use of telemedicine abortions.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

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The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Analysis Law and Policy

Religious Accommodations Try to Turn Back the Clock

Elizabeth Reiner Platt

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

“Oh, it’s a big problem with the members of my church, my community, and my mother-in-law .… They don’t allow that black and white shacking.”

That was the explanation Mississippi landlord Gene Baker gave for evicting Erica Flores Dunahoo and her husband, National Guard Sgt. Stanley Hoskins, from his RV park in February, Dunahoo told the Clarion-Ledger newspaper. Dunahoo, who is Latina and Native American, and Hoskins, who is Black, moved to another RV park with higher rent.

What’s even more troubling, however, is that some state laws recently introduced across the country would actually sanction this type of discrimination. While the couple’s eviction would likely violate the federal Fair Housing Act, which applies to most housing providers nationwide, some recently proposed state bills would create religious exemptions to state and local anti-discrimination laws—many of which provide important protections to people who may not be sufficiently covered by federal law. (As a side note, Mississippi is actually one of few states that has no state Fair Housing Act).

Just as the Civil Right Act of 1964 prompted segregationists to demand religious exemptions from the law, the gains of the LGBTQ rights movement has led to the introduction of dozens of state bills designed to provide individuals and companies with a license to discriminate based on their religious beliefs. While these new bills may be motivated by opposition to LGBTQ rights, it’s important to note that many of these vague, broad, and poorly worded bills would not just affect the LGBTQ community—they could also renew demands for a religious right to discriminate on the basis of race, sex, or other factors.

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Many academics, advocates, journalists, and politicians have already noted that today’s religious objections mirror those made by opponents of desegregation in the past. Religious exemptions from the Civil Rights Act were considered both by the legislature and by federal courts. But while there is a long history of religious resistance to desegregation, both Congress and the Supreme Court flatly rejected religious exemptions from anti-discrimination law in the 1960s.

An early version of the Civil Rights Act of 1964 excused religiously affiliated employers from compliance with the entire act. This was discarded, however, and Congress’ final draft of the Civil Rights Act only exempted religious organizations from religious discrimination provisions, so that they could give special preference to people who shared the organization’s religious faith.

Once the Civil Rights Act was passed, some business owners, like Maurice Bessinger of the South Carolina-based barbecue chain Piggie Park, argued in court that even without an exemption, under the First Amendment their religious beliefs should protect them from being forced to desegregate. In the 1968 case Newman v. Piggie Park Enterprises, Inc., the Supreme Court called the restaurant’s religious liberty claims “patently frivolous.”

Despite the fact that a religious right to segregation was prohibited decades ago, Dunahoo and Hoskins’ experience shows that religiously motivated racial discrimination is still alive and well today.

While some bills—like Missouri’s SJR 39, which died in committee in late April—focus more narrowly on religious objections to marriage between persons of the same sex, other bills would protect those who oppose interfaith or interracial marriage or even desegregation. Georgia’s HB 757, which was vetoed by Republican Gov. Nathan Deal in early April, could have allowed government clerks to refuse to provide marriage licenses to interracial couples or religious organizations to refuse to provide any “social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief.” Kentucky’s SB 180, which passed the state senate in March and is now awaiting a vote in the house, contains similar provisions.

And while federal laws including the Civil Rights Act and the Fair Housing Act contain strong protections against racial discrimination, accommodations that close off discrimination claims based on state or local law are nevertheless significant.

Nearly every U.S. state and many municipalities have adopted at least some anti-discrimination protections in employment, housing, or public accommodations. These state- or local-level discrimination claims may be easier to litigate than federal anti-discrimination laws. For example, they may require a lower standard of proof to show that discrimination occurred. Additionally, state and local discrimination laws often cover smaller landlords or businesses than federal law. Finally, state and local claims may provide additional monetary damages or other forms of relief to those who face discrimination. By carving out religious exemptions from state and local anti-discrimination law, accommodation bills would force people of color and other marginalized populations to once again bear the burden of others’ discriminatory religious beliefs.

State laws that allow for religiously motivated discrimination would also close off other legal claims, such as those based on contract violations. For example, if a religiously affiliated company fired an employee for marrying someone of a different race, she may lose the right to sue based on breach of an employment contract if the employer is covered by a broad accommodation law.

Furthermore, it’s possible that those who wish to discriminate could also demand an exemption from federal anti-discrimination law under the Religious Freedom Restoration Act. This is the same law the craft store giant Hobby Lobby used to avoid providing its employees with contraception, as required by the Affordable Care Act.

In order to succeed with such an argument, a religious objector would have to show that hiring, housing, or serving a particular group of people (like interracial couples) would burden his exercise of religion. If this is the case, then he would win his claim unless the government could show that federal anti-discrimination law serves a “compelling government interest,” and there is no way of furthering that interest that is less burdensome to the objector’s religious exercise.

In Burwell v. Hobby Lobby, the majority opinion indicated that it believed the government does have “a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” But the Court has not actually ruled on this issue, and its failure to find an overriding government interest in women’s health, dignity, and equality in Hobby Lobby does not bode well for future cases.

By allowing religion to be used as a veil for discrimination, state legislators are ignoring the lessons of history. In Newman v. Piggie Park Enterprises, Inc., the Supreme Court dismissed a broad religious liberty claim. The argument that personal religious beliefs may trump the most basic liberty and equality rights of others should be rejected with equal force today by state governments considering religious exemption bills, and by judges being asked to find a religious right to discriminate.