The National Right to Life Committee plans to borrow from the playbook of the Civil Rights movement by urging activists to perform so-called stings of abortion clinics, while also pushing for an expansion of the laws that govern abortion to allow third parties to sue the clinics in civil court for alleged violations, according to statements made at a recent conference attended by Rewire.
“This is an approach that was pioneered by the Civil Rights movement, when for many, many years you couldn’t get a white jury in the South, for example, to convict people accused of lynching,” said Burke Balch, director of the National Right to Life Committee’s Robert Powell Center for Medical Ethics, who laid out his ideas at the National Right to Life Committee’s annual conference in Louisville, Kentucky, late last month.
However, while Civil Rights pioneers applied these techniques in the cause of seeking justice and expanding the rights of citizens, the National Right to Life Committee and other anti-choice groups are attempting to use this technique in the name of drastically reducing the rights of citizens—namely, women who seek to exercise their constitutional rights to choose whether to carry a pregnancy to term.
In part modeled after the Fair Housing Testing Program, Balch’s strategy involves passing laws that create standing for private citizens who might not otherwise be able to bring the lawsuit on their own. “Standing” is a legal concept that refers to who has the right to bring a particular lawsuit. In most cases, to show standing, plaintiffs have to prove they are directly affected by whatever it is they are suing.
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At one point, Balch compared the type of stings he was advocating to the type of tests the U.S. Department of Justice—as well as fair-housing advocacy groups—uses to test whether building owners are violating the federal Fair Housing Act by discriminating against certain groups protected under the law, such as racial minorities and people with disabilities. In these tests, citizens will pose as hopeful renters; documented cases of discrimination can later be used to bring lawsuits against the violating property owners.
“Frankly, you can set up a sting operation,” Balch explained. “You can create a situation in which a pregnant woman goes in—obviously doesn’t go through with the abortion—but makes the appointment, meets with the abortionist who then gives you enough evidence that you can then have that person actually bring a case against that abortionist for violating the law and then get an injunction against the specific individual, spotlighting that person.”
“This happens all the time, for example with drug buys,” Balch said. “The police officer goes in and buys the drugs, and then that provides the evidence.”
For instance, if Balch’s strategy worked, if the pregnant anti-choice activist told the doctor she wanted to abort the fetus because she wanted a girl, not a boy, and the doctor agreed to perform the abortion anyway, the activist could bring a lawsuit against the provider for violating a ban on sex-selective abortions.
In written comments to Rewire, Balch didn’t give specifics on how he envisaged crafting the expanded laws, but said, “depending on how they were written, [they] could be applicable to one or more substantive legal provisions.”
He also said that this strategy was not new, but that “the National Right to Life Committee has been advocating for civil remedies as a means of enforcing pro-life statutes since 1989.”
Balch’s encouragement to conduct sting operations at reproductive health clinics might bring to mind the sort of undercover operations conducted by Lila Rose’s anti-choice group Live Action.
In the various surreptitiously recorded videos Live Action has published, actors are, for instance, shown telling Planned Parenthood clinic workers certain information to test if they will violate state statutes. For example, actors have posed as minors with adult boyfriends in states that require a clinic to report this as an instance of potential statutory rape, and Live Action has been able to successfully bring complaints against a few clinics for violating this regulation. In another example, Live Action actors have told clinic workers they intend to abort if they find out they are carrying a fetus of a particular sex, in an effort to prove that Planned Parenthood allows abortions based on sex-selection.
But Balch’s strategy is much more ambitious. Whereas Live Action activists tend to publish their videos or recordings online, as well as reporting them to authorities, the activists themselves would be able to sue clinics and doctors under Balch’s plan.
This strategy is part of a larger trend of expanding the category of people who can interfere with a woman’s decision of whether or not to continue a pregnancy. Another national anti-choice group, Americans United for Life, has also jumped aboard this strategy, offering model legislation to help states pass laws allowing outside parties to sue abortion clinics for not enforcing abortion statutes. And some state legislatures, such as in Wisconsin, have already attempted to create legal standing for outside parties—such as a woman’s mother-in-law—to file a civil lawsuit against a provider.
(Notably, as more state legislators try to widen the scope of who has a stake in a woman’s pregnancy, others are working to decrease a woman’s autonomy within her own pregnancy. Louisiana, for example, recently passed a law whose vague language effectively turns a brain-dead woman into an incubator if the fetus is at least 20 weeks’ gestation.)
“There are several advantages to civil remedies,” Balch said. “One is you can give standing—that is to say the ability to bring a case for an injunction to people who aren’t prosecutors—to private individuals. You can say, for example, if somebody is performing an abortion that violates the law in some particular perspective that the woman upon whom the abortion is performed or attempted, or certain relatives of that individual, can bring a case.”
“Attempted” is the key word here, because it would create standing for activists who go to clinics and pretend to seek an abortion.
And even if she didn’t win the case, Balch explained there are other ways to harm abortion providers using civil remedies. In fact, he said, civil suits have some advantages over criminal suits because the party suing can use civil discovery to obtain the provider’s medical records. Additionally, plaintiffs can appeal if their injunction is denied, whereas a prosecutor would not be able to appeal after losing a criminal suit.
As to why the National Right to Life Committee is now advocating this strategy, conference speakers and attendees made frequent reference to the need to “make a difference, not a statement,” when it comes to their efforts to overturn the constitutional right to choose whether to carry a pregnancy to term.
That’s a thinly veiled criticism of the more fanatical wing of the anti-choice camp, whose members are ramping up their support for “personhood” laws, which would give zygotes and fetuses the same rights as people, and would effectively criminalize all abortion.
Top National Right to Life directors argued that, at this point in time, “personhood” laws are politically unpopular, unlikely to stand up in the courts, and their ramifications are unknown. (Thus, even if a “personhood” law were to pass unchallenged, it’s unclear if it would effectively ban abortion.)
However, Balch believes that expanding the types of situations in which abortion providers can be sued, as well as pushing for more sting operations, would be more palatable to the general public.
Amanda Allen, the state legislative counsel of the New York-based Center for Reproductive Rights, told Rewire in a written statement that this type of proposal is problematic because it singles out abortion providers for different treatment than other medical professionals, and its intended goal is to curb access to reproductive health services. She also noted that traditional civil remedies are already available, such as medical malpractice claims, for the patient.
“Any efforts to impose greater penalties on abortion providers compared to other health care providers, or to allow third parties to use an enforcement mechanism to harass an abortion provider or get access to confidential patient records, are blatant efforts to further stigmatize abortion care, choke off women’s access to essential reproductive health care services, and intimidate abortion providers,” Allen said.