Commentary Abortion

Anti-Choicers Are Going to Take Away Second-Trimester Abortion Without Much Notice

Amanda Marcotte

Anti-choicers have mastered the art of minimizing the impact of abortion laws to trick the public into shrugging them off. By using this method, they are poised to restrict second-trimester abortion access in many states without a major fuss.

Kansas and Oklahoma, both of which have passed laws banning the dilation and evacuation (D and E) procedure that is used in most abortions after 13 weeks, have graduated to a new level in their efforts to stamp out reproductive rights. As Dahlia Lithwick at Slate explained, these laws “are radically different” from those of the past few years, which have tried to tried to chip away at abortion access by using phony concerns about women’s health as a cover; instead, Kansas and Oklahoma’s new legislation is simply a vehicle “to overturn Roe once and for all.” So getting the Supreme Court to agree with the anti-choice side about these bans would open the door to just banning abortion outright—no pretending to care about women necessary.

Seems like it should be enormous news, right? Especially considering there are similar restrictions being considered in Missouri and South Carolina. And sure, there’s been some coverage of it in the mainstream media, such as Lithwick’s piece and an op-ed condemning the move in the New York Times, as well as local outlets in Kansas and Oklahoma covering the bans. But not enough. For the most part, it seems as if there’s been little outrage or fear. Is this going to be one of those attacks on abortion rights that a weary public is going to shrug off as no big deal?

The anti-choice movement has employed a twofold strategy here: Overwhelm the news cycle with restrictions on abortion so that the public starts to tune the stories out, and make any one regulation seem so minor that the response, especially from people in the “muddy middle,” will be to shrug and say, “Well, as long as you can still get your abortion, I don’t see the problem.” It’s diabolical—and it’s effective.

The fact that the public is starting to shrug at the-abortion-restriction-of-the-day stories is totally understandable. “When we have come to the point that more than 330 abortion restrictions have been introduced in 43 states since January,” Lithwick wrote, “It’s awfully hard to keep track of which are worth worrying about and which are merely variations on old themes.” The endless churn of it grows wearisome for those of us who work on this subject for a living. It’s hard to imagine people who understandably have other priorities giving this issue the attention it needs.

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And as far as the second part of the strategy goes, anti-choice activists and politicians have long taken great pains to claim, falsely, that the restrictions they’re imposing will not meaningfully impact the ability to access abortion. Take Rep. Pat McElraft of North Carolina, trying to justify a bill earlier this month that would ban state medical schools from teaching abortion by claiming there are “other options”: “Abortion physicians learn from all kinds of training—spontaneous abortions or miscarriages.”

Or Justice Edith Jones, justifying making women drive hundreds of miles for an abortion by arguing last year that the road on which they’d have to do so is a “peculiarly flat and not congested highway.”

Or Justice Anthony Kennedy arguing in favor of banning the dilation and extraction procedure in Gonzales v. Carhart eight years ago: “Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E.” Of course, banning D and E is what anti-choicers started working on next, showing that this belief in “alternatives” is just a feint.

You’d think these defenders would consider it a bad thing if restrictions didn’t meaningfully impact care. The fact that they continuously claim that these regulations are no big deal, therefore, can only be an attempt to get this “shrug” reaction—to create the illusion that pro-choicers are crying wolf and can be safely ignored by the public.

The same minimizing techniques are on display with the defenses of these new Kansas and Oklahoma bills. Anti-choice activists are careful to describe the bills as simply banning a certain kind of procedure, which suggests there are many alternatives should you really need them. LifeSiteNews, for example, portrayed people who criticize this law as “extremists” who are devoted to “an abortion absolutist agenda.” It implied that pro-choicers are rejecting some kind of middle ground, with no acknowledgement that this law, which bans the procedure that is universally acknowledged as the best way to do abortions in the second trimester, is the actual example of extremism.

The Washington Times plays a similar game, writing, “Oklahoma has become the second state to outlaw an abortion procedure that ‘dismembers’ the fetus in the womb as part of the process.” The phrasing suggests that it’s just a kind of abortion that is criminalized, with no acknowledgement that it’s the standard of abortion care at this stage in pregnancy. Instead, the article highlights statements from pro-choicers calling D and E the “safest and most expeditious kind of care,” allowing the reader to erroneously conclude that this isn’t so much a ban on most second-trimester abortions as a ban on just one kind.

Imagine, if you will, that you wanted to ban cars from the road but you knew that a law banning cars would not fly. So instead you pass a law that says you’re only banning the use of “internal combustion engine-style vehicles.” A lot of people would reasonably assume that this is only a ban on a certain kind of car, not knowing that nearly all cars run on internal combustion engines. It would obviously be an attempt to ban cars without admitting that you’re banning cars. That’s what anti-choicers are doing with these D and E bans: implying that this is a narrow ban when, in fact, it’s a broad one. And their strategy is working.

It appears that the anti-choice movement really has figured out how to take abortion rights away from us, without us even noticing. They know the public would revolt against them if they tried to take abortion away outright, so instead they aim their legislation at getting a nonchalant response. If and when the public responds by saying, “Doesn’t seem like that big a deal,” or “Call me when they actually manage to end legal abortion,” the anti-choicers are winning. After all, by the time we’re all panicked enough to stop shrugging, it will be too late.

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.

071midyearstateeligibilitytable

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.

071midyearstateabortionstable

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.

News Abortion

Reproductive Justice Groups Hit Back at RNC’s Anti-Choice Platform

Michelle D. Anderson

Reproductive rights and justice groups are greeting the Republican National Convention with billboards and media campaigns that challenge anti-choice policies.

Reproductive advocacy groups have moved to counter negative images that will be displayed this week during the Republican National Convention (RNC) in Cleveland, while educating the public about anti-choice legislation that has eroded abortion care access nationwide.

Donald Trump, the presumptive GOP nominee for president, along with Indiana Gov. Mike Pence (R), Trump’s choice for vice president, have supported a slew of anti-choice policies.

The National Institute for Reproductive Health is among the many groups bringing attention to the Republican Party’s anti-abortion platform. The New York City-based nonprofit organization this month erected six billboards near RNC headquarters and around downtown Cleveland hotels with the message, “If abortion is made illegal, how much time will a person serve?”

The institute’s campaign comes as Created Equal, an anti-abortion organization based in Columbus, Ohio, released its plans to use aerial advertising. The group’s plan was first reported by The Stream, a conservative Christian website.

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The site reported that the anti-choice banners would span 50 feet by 100 feet and seek to “pressure congressional Republicans into defunding Planned Parenthood.” Those plans were scrapped after the Federal Aviation Administration created a no-fly zone around both parties’ conventions.

Created Equal, which was banned from using similar messages on a large public monitor near the popular Alamo historic site in San Antonio, Texas, in 2014, did not respond to a request for comment on Thursday.

Andrea Miller, president of the National Institute for Reproductive Health, said in an interview with Rewire that Created Equal’s stance and tactics on abortion show how “dramatically out of touch” its leaders compared to where most of the public stands on reproductive rights. Last year, a Gallup poll suggested half of Americans supported a person’s right to have an abortion, while 44 percent considered themselves “pro-life.”

About 56 percent of U.S. adults believe abortion care should be legal all or most of the time, according to the Pew Research Center’s FactTank.

“It’s important to raise awareness about what the RNC platform has historically endorsed and what they have continued to endorse,” Miller told Rewire.

Miller noted that more than a dozen women, like Purvi Patel of Indiana, have been arrested or convicted of alleged self-induced abortion since 2004. The billboards, she said, help convey what might happen if the Republican Party platform becomes law across the country.

Miller said the National Institute for Reproductive Health’s campaign had been in the works for several months before Created Equal announced its now-cancelled aerial advertising plans. Although the group was not aware of Created Equal’s plans, staff anticipated that intimidating messages seeking to shame and stigmatize people would be used during the GOP convention, Miller said.

The institute, in a statement about its billboard campaign, noted that many are unaware of “both the number of anti-choice laws that have passed and their real-life consequences.” The group unveiled an in-depth analysis looking at how the RNC platform “has consistently sought to make abortion both illegal and inaccessible” over the last 30 years.

NARAL Pro-Choice Ohio last week began an online newspaper campaign that placed messages in the Cleveland Plain Dealer via Cleveland.com, the Columbus Dispatch, and the Dayton Daily News, NARAL Pro-Choice Ohio spokesman Gabriel Mann told Rewire.

The ads address actions carried out by Created Equal by asking, “When Did The Right To Life Become The Right To Terrorize Ohio Abortion Providers?”

“We’re looking to expose how bad [Created Equal has] been in these specific media markets in Ohio. Created Equal has targeted doctors outside their homes,” Mann said. “It’s been a very aggressive campaign.”

The NARAL ads direct readers to OhioAbortionFacts.org, an educational website created by NARAL; Planned Parenthood of Greater Ohio; the human rights and reproductive justice group, New Voices Cleveland; and Preterm, the only abortion provider located within Cleveland city limits.

The website provides visitors with a chronological look at anti-abortion restrictions that have been passed in Ohio since the landmark decision in Roe v. Wade in 1973.

In 2015, for example, Ohio’s Republican-held legislature passed a law requiring all abortion facilities to have a transfer agreement with a non-public hospital within 30 miles of their location. 

Like NARAL and the National Institute for Reproductive Health, Preterm has erected a communications campaign against the RNC platform. In Cleveland, that includes a billboard bearing the message, “End The Silence. End the Shame,” along a major highway near the airport, Miller said.

New Voices has focused its advocacy on combatting anti-choice policies and violence against Black women, especially on social media sites like Twitter.

After the police killing of Tamir Rice, a 12-year-old Black boy, New Voices collaborated with the Repeal Hyde Art Project to erect billboard signage showing that reproductive justice includes the right to raise children who are protected from police brutality.

Abortion is not the only issue that has become the subject of billboard advertising at the GOP convention.

Kansas-based environmental and LGBTQ rights group Planting Peace erected a billboard depicting Donald Trump kissing his former challenger Sen. Ted Cruz (R-Texas) just minutes from the RNC site, according to the Plain Dealer.

The billboard, which features the message, “Love Trumps Hate. End Homophobia,” calls for an “immediate change in the Republican Party platform with regard to our LGBT family and LGBT rights,” according to news reports.

CORRECTION: A version of this article incorrectly stated the percentage of Americans in favor of abortion rights.