Analysis Religion

Crowdsourcing Bigotry: What Anti-Contraception and Anti-LGBTQ Laws Have in Common

Katherine Cross

What conservatives really mean when they talk about "religious freedom" has been revealed already by their longstanding crusade against the birth control benefit afforded by the Affordable Care Act. For them, having religious freedom requires the right to discriminate—against specific people, and in a specific way.

Recently, Arizona Gov. Jan Brewer vetoed SB 1062, a bill that would have legalized discrimination on the basis of religious belief and which was chiefly targeted at LGBTQ people.

To look at the outrage expressed by many conservatives about Gov. Brewer’s veto, one is immediately struck by the vagueness of their declarations; they delicately eschew specifics about what they mean by “religious freedom.” But we have been here before. What conservatives really mean has been revealed already by their longstanding crusade against the birth control benefit afforded by the Affordable Care Act (ACA). For them, having religious freedom requires the right to discriminate—against specific people, and in a specific way.

Three legal initiatives stand out. The (mercifully unsuccessful) bid in California to roll back protections for transgender students via referendum; the SB 1062-style laws being considered in Georgia, Missouri, and other states; and the continuing attack on the contraception mandate.

What unites them all is an attempt to subtly enthrone a specific interpretation of religious freedom that facilitates institutional control of women’s bodies and those of LGBTQ people.

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All three appeal to tradition, but the legal gymnastics required for each are strikingly novel in the history of constitutional law. The battle against the ACA’s inclusion of women’s health care, for instance, is necessitating the creation of something new to our democracy: the idea that a corporation is a person with religious liberty, above and beyond that of its owners and employees. More than just a vehicle for a powerful individual’s beliefs, now conservative activists seek to make the corporation a person unto itself with immanent religiosity that is constitutionally protected.

Similarly, the logic employed by those who opposed California’s trans rights bill, by necessity, conceives of trans students as agents of the state, violating the privacy rights of cisgender students—an odd choice that diverged from the ways the concept of “privacy” has been legally employed in the past, as a bulwark against the intervention of the state in the private affairs of citizens.

Just as the shape of structural racism has evolved from Jim Crow to the regime of “color blindness,” there is a new subtlety to the heirs of the movement that criminalized abortion, contraception, homosexuality, and transsexuality in years past. The use of “religious freedom” as a legal shield is not new—it has a long, ugly history intertwined with U.S. racism—but the subtlety in naming the target is.

These legal strategies are indirect—aiming squarely at a group without announcing it, and saturating the PR side of things with generalities, obfuscations, and appeals to abstract ideals (like “freedom of religion”) without specifying what they mean. We see this, too, in the way anti-abortion laws, clearly aimed at cutting off women’s access to a constitutionally guaranteed medical procedure, usually do not seek to explicitly ban the procedure but instead set unreasonable standards for abortion clinics (such as mandating that all physicians have admission privileges at local hospitals, or that clinics must have facilities identical to large hospitals) that ensure clinic closures or cost increases.

In those cases, “women’s health” is the standard around which these legislators rally, averring that these laws are merely designed to ensure the safety of women patients in these clinics, even as they deny women access to health care.

Abstract principles without specifics are the rhetoric du jour of those who seek ever more creative ways of justifying ever more onerous controls on the lives and bodies of women and LGBTQ people.

This brings us back to the issue of “religious freedom” and what it has come to mean in this perverse economy of discourse.

At heart, what unites the contraception fight with SB 1062 and the anti-trans referendum fight in California is that, in the legal constructs of the conservative activists, the bearers of rights are the already privileged, and the right being stipulated is the anti-democratic right to enlist ordinary citizens in the violent policing of others. It invigorates the cissexist parent, the homophobic restaurateur, the misogynist businessman into turning private prejudices into public practice, backed by the full faith and credit of the state. But rather than using, say, the blunt instruments of state power to enforce these laws, it cuts off certain citizens from state recourse and makes of other citizens the judges, juries, and executioners.

These initiatives are designed to crowdsource institutional prejudice.

While it may be difficult to ban contraception outright, it is easier for the political right to enlist, say, pharmacists (via “conscience clauses,” which operate on a similarly vague definition of religious liberty), or business owners to deny contraception to women customers and employees, limiting access in the same indirect way that much anti-abortion legislation does.

Similarly, the anti-LGBTQ laws that have blossomed like a rash on the American legal landscape—putatively about defending religious freedom, and often not explicitly mentioning LGBTQ people in the law’s text—are another example of this pointedly indirect form of legislating, and they present a marked contrast with the attempts of the Bush administration to impose a top-down ban on same-sex marriage via constitutional amendment a decade ago. Now the laws are chiefly aimed at enlisting business owners and other service providers (including those employed by the state) in strengthening a culture of homophobic and transphobic prejudice.

For example, Georgia’s law (put on ice as of February 28), the Preservation of Religious Freedom Act, stipulates that “[a] person’s civil right to exercise of religion shall not be burdened even if the burden results from a rule, law, ordinance, regulation, or policy of general applicability.” What such a bill proposes is an end-run around existing state and federal laws against discrimination or laws that compel equal accommodation.

The negative space thus created is one in which people’s prejudices, so long as they can be justified through appeal to a tenet of one’s faith, are used to police the behavior and lives of others.

This is exactly the intention of a law being proposed in Idaho (temporarily withdrawn as of February 19) which empowers individuals to ignore any local statutes or ordinances in their state that ban anti-LGBT discrimination, such as those currently in force in Boise and Coeur d’Alene.

The proposed Georgia law states further that “[t]he religious liberty interest protected by this chapter is an independent liberty that occupies a preferred position,” outlining one of the guiding ideologies at work here: In the eternal contest between competing liberties in a democracy, a narrow definition of religious freedom—the freedom to discriminate against another person on the basis of religious belief—ought to be removed from public contention, and understood as a “preferred” liberty, impervious to challenge save in the case of a “clear and compelling governmental interest of the highest order.” One need not be a dour skeptic to surmise that the bar for such an “interest” is likely set stratospherically high.

In considering the Hobby Lobby case, now before the Supreme Court, which seeks to establish a form of corporate personhood to be imbued with religious freedom, it is worth remembering that in spite of the isomorphism with the eerily similar Citizens United case (which gave corporations an independent right to free speech), this has not been a battle spearheaded by the business lobby. Indeed, a striking fact about this case is that no Fortune 500 companies have filed friend-of-the-court briefs on Hobby Lobby’s behalf, and the U.S. Chamber of Commerce—normally a reliable friend of the far right before the Supreme Court—has also remained silent.

I suspect this is because if Hobby Lobby were to win its fight against women’s right to contraception coverage, it would open a black hole in corporate law that would create difficulties for most businesses (what happens to limited liability if the owner and corporation are seen as a unity?)—but what it creates is a new, privatized institutional mechanism to promote and maintain a misogynist health-care exclusion, based on puritanism and paternalism about women’s bodies. If you can’t get the government to do it, why not use private enterprise?

That is the driving interest of those who seek to create “religious exemptions” from the Affordable Care Act.

I would also submit another idea for consideration: It is indeed a strong critique of these laws to say that they are so vague that any “sincerely held” religious belief could be used to sire any number of “exemptions.” What if a New Age spiritualist only wanted their employee health plan to cover homeopathic medicine, or a Jehovah’s Witness CEO sought to make employees pay for their own blood transfusions? But I think that what these laws depend on is that an arbitrary social standard—shared by state legislators and some of their constituents—is the informal “test” applied to any given case. Denial of contraception and discrimination against queer couples and trans people is commonly accepted among many in this country as an expression of sincere religiosity. But our hypothetical New Ager or Jehovah’s Witness lacks access to a powerful lobby that will enforce and reify their definition of religious purity.

Discretion is left to those who will enforce these statutes whether a given invocation of religious freedom ought to be “burdened” by state or federal law, which opens a perilously wide door for the collective reinforcement of any subjective prejudice shared by large swathes of the population—such as Rush Limbaugh’s belief that contraception is entirely pegged to a woman’s sex drive, or that transgender students are rapists in waiting, or that Christianity is under attack by LGBT people.

“I’ll know it when I see it” could become a widely enshrined legal standard, and it is likely this which conservatives are banking on to ensure that their laws are not used in ways they would not approve of (say, by Muslim Americans).

These three legal fights—the attack on trans students in California, the battle for the ACA contraception mandate, and the anti-LGBTQ “religious freedom” bills—are links in a chain that connects directly to the recent onslaught of anti-choice legislation in the United States, united in their efforts to create indirect but concrete barriers to the exercise of equal rights and bodily autonomy by women and LGBTQ people.

As of this writing, the tide of these anti-LGBTQ bills seems to be breaking—Jan Brewer vetoed Arizona’s, Georgia’s has been withdrawn, and Mississippi’s is being reworked. In the words of Rachel Maddow, the bills seem to shrivel up in the sunlight of national media attention. This is encouraging, as is the nationwide opposition to these bills that has drawn together a broad coalition. But we should not mistake a temporary retreat for an end to this issue. Even as these bills expire in committee, the threat they represent remains real in the waves of laws that seek to regulate women’s bodies.

After all, the same conservative Christian organization that supported and co-drafted Arizona’s SB 1062—the Center for Arizona Policy—also just helped to pass HB 2284, which allows random government inspections of abortion clinics, and makes it a class 1 misdemeanor to in any way help “a minor avoid Arizona’s parental consent requirements” for getting an abortion. It’s called the “Women’s Health Protection Act.”

Indeed, it can be argued that Republicans tried this spate of anti-LGBTQ bills in the first place because similar legal logic has been employed to such great effect against women’s reproductive rights, and as HB 2284 makes clear, we are most certainly not at the end of that fight.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

News Abortion

Texas Pro-Choice Advocates Push Back Against State’s Anti-Choice Pamphlet

Teddy Wilson

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated since 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature.

Reproductive rights advocates are calling for changes to information forced on pregnant people seeking abortion services, thanks to a Texas mandate.

Texas lawmakers passed the Texas Woman’s Right to Know Act in 2003, which requires abortion providers to inform pregnant people of the medical risks associated with abortion care, as well as the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term.

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated or revised since it was first made public in 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature. 

The Texas Department of State Health Services (DSHS) in June published a revised draft version of the pamphlet. The draft version of “A Woman’s Right to Know” was published online, and proposed revisions are available for public comment until Friday.

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John Seago, spokesperson for the anti-choice Texas Right to Life, told KUT that the pamphlet was created so pregnant people have accurate information before they consent to receiving abortion care.

“This is a booklet that’s not going to be put in the hands of experts, it’s not going to be put in the hands of OB-GYNs or scientists–it’s going to be put in the hands of women who will range in education, will range in background, and we want this booklet to be user-friendly enough that anyone can read this booklet and be informed,” he said.

Reproductive rights advocates charge that the information in the pamphlet presented an anti-abortion bias and includes factually incorrect information.

More than 34 percent of the information found in the previous version of the state’s “A Woman’s Right to Know” pamphlet was medically inaccurate, according to a study by a Rutgers University research team.

State lawmakers and activists held a press conference Wednesday outside the DSHS offices in Austin and delivered nearly 5,000 Texans’ comments to the agency.  

Kryston Skinner, an organizer with the Texas Equal Access Fund, spoke during the press conference about her experience having an abortion in Texas, and how the state-mandated pamphlet made her feel stigmatized.

Skinner told Rewire that the pamphlet “causes fear” in pregnant people who are unaware that the pamphlet is rife with misinformation. “It’s obviously a deterrent,” Skinner said. “There is no other reason for the state to force a medical professional to provide misinformation to their patients.”

State Rep. Donna Howard (D-Austin) said in a statement that the pamphlet is the “latest shameful example” of Texas lawmakers playing politics with reproductive health care. “As a former registered nurse, I find it outrageous that the state requires health professionals to provide misleading and coercive information to patients,” Howard said.

Howard, vice chair of the Texas House Women’s Health Caucus, vowed to propose legislation that would rid the booklet of its many inaccuracies if DSHS fails to take the thousands of comments into account, according to the Austin Chronicle

Lawmakers in several states have passed laws mandating that states provide written materials to pregnant people seeking abortion services. These so-called informed consent laws often require that the material include inaccurate or misleading information pushed by legislators and organizations that oppose legal abortion care. 

The American Congress of Obstetricians and Gynecologists (ACOG) sent a letter to DSHS that said the organization has “significant concerns with some of the material and how it is presented.”

Among the most controversial statements made in the pamphlet is the claim that “doctors and scientists are actively studying the complex biology of breast cancer to understand whether abortion may affect the risk of breast cancer.”

Texas Right to Life said in a statement that the organization wants the DSHS include “stronger language” about the supposed correlation between abortion and breast cancer. The organization wants the pamphlet to explicitly cite “the numerous studies that indicate undergoing an elective abortion contributes to the incidence of breast cancer in women.”

Rep. Sarah Davis (R-West University Place) said in a statement that the state should provide the “most accurate science available” to pregnant people seeking an abortion. “As a breast cancer survivor, I am disappointed that DSHS has published revisions to the ‘A Woman’s Right to Know’ booklet that remain scientifically and medically inaccurate,” Davis said.

The link between abortion and cancer has been repeatedly debunked by scientific research.

“Scientific research studies have not found a cause-and-effect relationship between abortion and breast cancer,” according to the American Cancer Society.

A report by the National Cancer Institute explains, “having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.”

DSHS spokesperson Carrie Williams told the Texas Tribune that the original booklet was written by a group of agency officials, legislators and public health and medical professionals.

“We carefully considered medical and scientific information when updating the draft booklet,” Williams said.