Commentary Law and Policy

Beating Back the Storm of Anti-Choice Bills in the Show Me State

Pamela Sumners

In St. Louis, we’ve always said, “Don’t like the weather? Wait a minute. It’ll change.” Well, the weather is not changing in our floodwater-friendly capitol, where a torrent of anti-choice bills is raining down on our heads. It is simply foul.

How many fathoms deep would Mark Twain find the hypocrisy, grandstanding, saber-rattling, and thumb-twiddling about actual public business while gazing at ladies’ navels and netherparts that characterizes the 2014 Missouri General Assembly? Mark Twain might have to rechristen himself Mark “Deepwater Horizon” Twain.

Twain famously observed, “Climate is what we expect; weather is what we get.” We knew there was a climate change with the Tea Party takeover of the Missouri General Assembly in 2010, but who can predict the weather? In St. Louis, we’ve always said, “Don’t like the weather? Wait a minute. It’ll change.” Well, we wish.

It’s not changing in our floodwater-friendly capitol, where a torrent of anti-choice bills is raining down on our heads. The weather is simply foul.

A supermajority that veto-proofs a governor heralds a grim barometric pressure. It winks its whirlwind eye at speaker Jones’ bill that would let your boss control your birth control—and, better yet, pretends that HMOs and insurers have corporate “consciences” to protect. (Who wouldn’t love to have the surgical skill to implant the first conscience in an HMO or insurance company, but that’s above my surgical skill or pay grade.)

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It doesn’t matter that decades of law have determined that neither fetuses nor corporations are constitutional “people.” I could write you a con-law treatise on why my dog Bella, who eats her own fur, is smarter than courts and lawmakers who erroneously take the Citizens United case to give business owners license to foist their spiritual beliefs onto clock-punchers unfortunate enough to work for their shareholders’ commercial (not spiritual) profit. Even Bella is smart enough not to confuse a bad “free-speech” ruling involving a fistful of dollars with the animating spirit of the Constitution’s religion clauses or assume that for-profit corporations can be “religious” themselves, even if every one of its shareholders is an archbishop. It takes a caveman in a suit or judicial robes to out think my sagacious canine oracle Bella, and as noted, she eats her fur.

Our weather here in Missouri tries to blow in 72-hour waiting periods for abortion—as though women didn’t already have a trimester or two to “wait” or “reflect” on their choices about terminating a pregnancy.

The ill wind in Missouri’s inhospitable climate also presumes that all families are parented by benevolent, sepia-toned Ozzie Nelsons, when your actual daddy might be Ozzy Osborne in his bat-decapitation days pre-rehab. But here’s a weather bulletin for the general assembly: Some pregnant girls scan the skies for storm-cloud parents who might beat them up, kick them out of the house, or worse. That hasn’t stopped the general assembly from pushing a bill to require the consent of both parents to a minor child’s abortion, when we have a judicial bypass law precisely because we know that healthy family communication cannot be legislated. That hasn’t stopped the general assembly from plans to legislatively eavesdrop on kitchen table or pillow talk to see if a parent “attempted” to “coerce” the mother of a minor child to abort that child years ago, for purposes of custody determinations.

That’s the weather—”wait a minute” in the whole of Missouri. And it won’t change as long as the climate confers on pro-choicers only 40 to 41 of 163 votes in the House of Representatives. We have overwhelming domination by anti-choice officials and not one single Republican vote in either general assembly chamber. We have six or seven of our 34 senators standing with us on that cold floor, knowing that urban representation is swamped by giant swaths of red country and knowing that term limits and gerrymandering will deliver the expected climate.

Our small numbers mean that our few friends get assigned to multiple committees, some of them involving weighty matters like the budget and where that budget gets cut for needy Missourians. Increasingly, in an effort to pander to the press, party bosses, or the legislative scorecards of Right to Life, competing hearings on anti-choice bills are scheduled for the same hour, too, in different committees. This forces our friends to choose where they should go, not based on their principles or their loyalty to ideals like women’s autonomy and dignity, but rather on where they can exercise the most influence to prevent the most harm. This calendar is engineered by folks who think pro-choice people “coerce” abortions. They ought to know something about the subject.

Our activists find themselves in similar straits. We have to choose, after traveling hours, whether to attend a hearing on a 72-hour waiting bill or a bill to fund pernicious crisis pregnancy centers, or a bill that pretends that a corporation could be Jesus or Buddha because its conscience is so pure. We face identical bills filed in the same chamber and assigned to different committees, to consume time, waste resources, and serve individual political interests.

We face committee chairs who muzzle Missouri by alternating witnesses on anti-choice bills tit-for-tat, so that the outlandish lies of anti-choice witnesses cannot be exposed by the truth batting clean-up when every last liar citing bogus statistics, misstating legal standards, and bloviating about abortion causing trauma, homicide, suicide, infertility, divorce, and breast cancer has mumbled his insupportable conclusions. We have committee chairs limiting testimony to three minutes per witness while larding dockets with way more bills than the hearing time allotted will allow—hardly conducive to rebuttal of lying lies and the lying liars who tell them. All this occurs while Missouri law demands no more than a day’s notice of hearings to satisfy the Sunshine Law. This serves someone’s interest, but not citizens’.

My dog Bella would be straining at her muzzle by now, in protest of this dog-and-pony show. I hear the word “transparency,” and because I work for women and families in Missouri, where two-thirds or more of either chamber is anything but transparent in exercising power, and I just brace for the next gust of Orwell blowing in.

How high is the water, Mama? Five feet high and rising. 

We are tracking dozens of anti-choice bills. If we tread water long enough, we will stop almost every one of them. Come hell or high water, we will. We always do, and in Missouri, that’s what beating the storm looks like.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquiries from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

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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