Analysis Law and Policy

Advocates Push for Dignity in Supreme Court Anti-Abortion Law Case

Jessica Mason Pieklo

More than 40 "friend of the court" briefs filed with the Roberts Court Monday push Justice Kennedy to extend the same concept of dignity to women that his opinions have shown to LGBTQ people.

Opponents of Texas’ HB 2 filed more than 40 amicus briefs with the Supreme Court on Monday detailing the devastation the massive anti-abortion omnibus bill and other similar policies have wrought on patient health and safety in the state. Provisions of these laws, some of which the Court will consider in March, require doctors to obtain admitting privileges at nearby hospitals, and abortion clinics to meet the same architectural standards as stand-alone surgical ones—resulting in the closure of reproductive health facilities all over Texas. 

Monday’s filing was an impressive show of force from a diverse coalition of groups and individuals. More than 100 women in the legal profession who have exercised their constitutional right to an abortion shared their stories with the Court. Social scientists explained how barriers to abortion may have negative socioeconomic effects on women and children. Health economists made the argument that the targeted regulation of abortion providers (TRAP) restrictions at issue are essentially anti-capitalist and create significant inefficiencies in the health-care marketplace. Even the noted evolutionary biologist and atheist Richard Dawkins weighed in, skewering the “experts” used to prop up claims that curbing access to reproductive health care actually improves patient health outcomes. But despite the number of voices chiming in against HB 2 and the variety of issues they raised, there was a clear, simple, uniform ask before the Roberts Court: If you respect the dignity of women, then you must strike down these clinic closure laws.

I don’t know just how many times the word “dignity” appeared in the friend of the court briefs, because, frankly, after about the fifth one I lost count. But it was a lot, and for good reason. Dignity has special constitutional meaning. The Court has historically found that laws preventing interracial marriage and same-sex marriage harmed the constitutional dignity of those affected by denying them equal protection and due process. Laws that mandated certain populations—like felons and mentally ill people—to be sterilized did the same. And Whole Woman’s Health v. Cole is, at its very core, a case about what level of constitutional respect the state must pay to women’s dignity. “Trust women”: It’s not so much a request of those opposing HB 2, but a demand.

Even so, arguing that the conservatives on the Roberts Court must respect the dignity of women by striking provisions designed to regulate access to abortion out of existence is tricky business, especially when those provisions have been dressed up by anti-choice lawmakers to “protect women.” And it’s particularly tricky business when the one conservative vote opponents of HB 2 need is from Justice Anthony Kennedy, who, in the last major abortion rights case before the Court, bought without a shred of evidence the baseless idea that women experience “post-abortion regret syndrome,” and, as a result, need the steady hand of the state to guide them through making their own medical decisions. This suggests that Justice Kennedy is a little confused on how the law should respect the dignity of women. Or at least he was.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

A lot has changed since Kennedy’s 2007 decision in Gonzales v. Carhart, including Justice Kennedy’s jurisprudence on dignity. Nowhere is this more evident than last summer’s landmark marriage equality decision, Obergefell v. Hodges. Writing for the majority of justices in striking as unconstitutional state-level bans on same-sex marriage, Justice Kennedy relied heavily on the notion that those bans, grounded in outdated sex-based stereotypes of “traditional family,” create significant harm to the dignity of LGBTQ people who wish to marry. Same-sex marriage bans exclude LGBTQ couples from the fiscal benefits associated with marriage, Justice Kennedy noted, harming their economic dignity. Those bans also suggest that LGBTQ people are somehow “lesser citizens” than non-LGBTQ people in the eyes of the government, which harms the dignity of those promised equal protection under the law, the opinion states. Same-sex marriage bans also harm the dignity of LGBTQ people’s children, since those laws also communicate a lesser status to the family. If there was one thing Justice Kennedy’s opinion in Obergefell seemed to get right, it was that the government has the power to inflict great harm to people when it passes laws restricting individual reproductive and sexual autonomy grounded primarily in outdated sex and gender stereotypes.

Advocates clearly hope that is a lesson Justice Kennedy brings to Whole Woman’s Health v. Cole. They address the dignity harm HB 2 creates by significantly restricting access to abortion providers, thus subjecting women to substandard health care. They address the dignity harm imposed by the economic hardship that follows denying women reproductive health care when they need it. They address the dignity harm to the family members of the women who are already mothers, who either can’t obtain an abortion or must go through great lengths to get one, even in the cases of fetuses that are not compatible with life. Their amicus briefs are nothing if not a stunning defense of the value of the lives of women and the need to place them above conservative, political ambition.

Personal stories also go a long way for Justice Kennedy. Reportedly, one of the main influences that led the conservative and Catholic justice to become an advocate of sorts for LGBTQ rights was his longtime friendship with Gordon Schaber. Schaber was a law school dean who helped get Kennedy appointed to the Court in the wake of the failed Robert Bork nomination. Schaber, suspected by many of his friends to be a closeted gay man, died in 1997. Colleagues have said Kennedy’s friendship with him, along with the opportunity to witness his experiences, helped the justice to really weigh the personal effect of the gay rights cases the Court considered. Which is why it matters that, in addition to the many well-respected institutions filing briefs in opposition to HB 2, hundreds of women shared their personal stories of benefiting from abortion, and of being harmed by baseless abortion restrictions—very plainly telling the Court the decision they made to terminate their pregnancy was the right one, politics be damned.

HB 2 supporters have until February 3 to respond to arguments that the law’s requirements unduly burden abortion rights and therefore harm the dignity of women. Their response will likely not address the dignity of women needing abortion at all and instead focus on the power of the state to “advance and protect fetal life.” If so, it would be hard to find a clearer example of the inherent anti-woman foundation of the anti-choice movement than an argument that literally erases the pregnant woman and replaces her judgment with that of the state’s.

Will a strategy of appealing to Justice Kennedy and the dignity doctrine through personal stories and detailed analysis of the various harms caused by anti-abortion laws pay off for HB 2 opponents, and get the justice to cast his first vote for abortion rights since 1992 and Planned Parenthood v. Casey? I think it will. And if it doesn’t, I can’t think of a strategy that would.

Advocates made it clear in their briefing that regardless of personal objections to abortion, the right to decide when and when not to parent is a fundamental one, not to mention part of the equally fundamental right to reproductive autonomy. Does the Roberts Court trust women enough to call shenanigans on anti-choice lawmakers who argue that closing abortion clinics is the best way to grant women that reproductive autonomy? In other words, just how much dignity is Justice Kennedy willing to extend to women? I’m hopeful it’s enough to avoid rolling reproductive rights back more than 50 years.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”