News Abortion

White Republicans Have Pushed 90 Percent of 2016’s Anti-Choice Bills

Teddy Wilson

Anti-choice legislation proliferates most in states with GOP-held legislatures, and the vast majority of bills are sponsored by Republican lawmakers.

A perfect political storm has flooded state legislatures with anti-choice bills as Republicans have used what advocates call “nonsense” to justify an assortment of measures to restrict reproductive rights.

There have been 147 anti-choice bills introduced in state legislatures during the first month of 2016, according to an analysis by Rewire.

This year’s crush of anti-choice proposals is part of several years of coordinated efforts by Republicans and prominent anti-choice organizations to roll back reproductive rights on the state level.

Anti-choice legislation proliferates most in states with GOP-held legislatures, and the vast majority of bills are sponsored by Republican lawmakers.

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Of the 147 anti-choice bills introduced so far this year, 63 percent (92 bills) were sponsored by white Republican men, while 27 percent (40 bills) were sponsored by white Republican women. Democrats, including two Black men, six white men, and two white women, have sponsored ten anti-choice bills in 2016.

The number of anti-choice bills introduced and anti-choice laws enacted during the 2011 legislative sessions increased by an unprecedented amount after Republicans swept to power in legislatures across the country during the 2010 midterm elections.

In the years that have followed, the number of bills introduced and laws enacted has decreased during election years, while the number of bills introduced and laws enacted has increased the following year.

There were 92 restrictions on reproductive rights enacted in 2011, 43 enacted in 2012, 70 enacted in 2013, 26 enacted in 2014, and 57 enacted in 2015, according to yearly state policy reviews by the Guttmacher Institute.

However, the number of anti-choice bills introduced this year has come as a surprise to reproductive right advocates who track legislators’ attacks on abortion rights. 

Elizabeth Nash, senior state issues associate for the Guttmacher Institute, told Rewire that she is seeing a lot of activity for January, which may indicate that this may be a very busy year for lawmakers introducing abortion restrictions.  

“What we would normally see in an election year is a decrease in the number of restrictions considered at the state level,” Nash said. “We are not seeing that this year.”

Legislatures in 37 states convened in January, and another five state legislatures are set to kick off sessions at the beginning of February. Legislation to restrict reproductive rights was introduced in 24 states, and anti-choice legislation has been filed in Alabama ahead of legislative session that begins Tuesday.

Fetal Tissue Research Under Attack

Legislation targeting the use of fetal tissue has appeared in many state legislatures controlled by Republicans. These bills are motivated by allegations made by the anti-choice front group known as the Center for Medical Progress (CMP), which published deceptively edited and surreptitiously recorded videos throughout the summer of 2015. CMP officials have worked with GOP lawmakers to defund Planned Parenthood.

The organizations CMP has targeted have responded with legal action.

Planned Parenthood filed a federal racketeering lawsuit against CMP, calling the organization “a complex criminal enterprise conceived and executed by anti-abortion extremists.” The National Abortion Federation also filed a lawsuit against CMP, claiming that CMP illegaly recorded the group’s members.

Officials in 11 states have concluded GOP-led investigations into claims that Planned Parenthood profited from fetal tissue donation, and each one has cleared Planned Parenthood of wrongdoing.

After Texas Republican Attorney General Ken Paxton called for an investigation into CMP’s allegations, a Houston grand jury declined to indict Planned Parenthood, but instead indicted David Daleiden, the head of CMP, and one of Daleiden’s associates who covertly recorded videos of the organization and its officials.

Despite CMP’s failure to produce any evidence of wrongdoing and state investigations coming up empty, lawmakers are still using the videos to push legislation to regulate fetal tissue and target abortion access more generally.

“We are seeing bills that ban fetal tissue research, bills that limit donations of fetal tissue or that prohibit the sale and buying of fetal tissue,” Nash said.

Republicans in Missouri went further than perhaps any other group of lawmakers to use the controversy to further an anti-choice agenda that included establishing the Committee on the Sanctity of Life. The 2016 legislative session has seen the Missouri GOP introduce seven bills related to fetal tissue.

Laura McQuade, the president and CEO of Planned Parenthood of Kansas and Mid-Missouri, told Rewire that GOP legislators are using the CMP attack videos as a justification for making restrictions on abortion care unrelated to fetal tissue donation.

“There are many different moving parts in these bills all designed to make access to safe legal abortion even more difficult than it is already,” McQuade said. “Lawmakers have gone into this through the fetal tissue conversation to make it seem more legitimate, but it is really the same kind of nonsense.”

The bills introduced in Missouri come even as Attorney General Chris Koster released a report detailing his office’s investigation into the tissue handling practices of Planned Parenthood’s Missouri surgical facility and concluded there was no evidence that the facility engaged in unlawful activity.

Bills to ban the purchasing of fetal tissue have been introduced in Kentucky and South Carolina, and a bill that requires clinics that provide abortion services to dispose of fetal remains by burial or cremation has been introduced in Virginia.

A bill banning the purchase of fetal tissue was introduced in Georgia, despite an investigation ordered by Gov. Nathan Deal (R) that found all of the clinics that provide abortion care had properly disposed of fetal tissue resulting from abortions.

The use of fetal tissue for research has also been a target of GOP lawmakers. Bills to ban the use of fetal tissue in scientific research have been introduced in Indiana and New Jersey. Minnesota Republicans have targeted public universities, where they claim illegal research on fetal tissue is being conducted. The Minnesota GOP has based this legislative move on an investigation published by a little-known news outlet backed by local Tea Party groups.

Lawmakers have not only used the CMP videos to justify proposals concerning fetal tissue, but to justify restrictions on reproductive rights more generally. “The videos are being used more broadly to support the need for abortion restrictions more generally,” Nash said.

States Seeing The Most Anti-Choice Measures

The number of anti-choice bills introduced in Republican-controlled state legislatures varies, but two states have introduced more than any others.

The past five years have seen the Republican-dominated Missouri state legislature propose more anti-choice bills than any other state. The state’s GOP is continuing that tradition in 2016. 

There have been 22 bills to restrict reproductive rights introduced so far in the state. The proposals would restrict reproductive health care in a number of ways, including prohibiting physicians from using specific abortion procedures, restricting minors’ access to abortion care, and banning abortion due to the sex of the fetus or due to genetic abnormalities.

Republicans in Tennessee have increased their efforts to restrict reproductive rights. Lawmakers introduced 11 anti-choice bills during the 2015 legislative session. There have already been 21 bills introduced that would restrict reproductive rights in 2016.

“Tennessee is an interesting case since they recently rolled back [abortion] protections in their state constitution,” Nash said. “That opened the floodgates essential for bills to restrict abortion to be introduced and considered.”

Tennessee voters approved a constitutional amendment in November 2014, which allows lawmakers to pass abortion regulations and restrict reproductive rights. Tennessee Republicans were successful in passing two new laws that restrict access to abortion.

Tennessee Gov. Bill Haslam (R) signed a bill into law that created a forced 48-hour waiting period before a person can terminate a pregnancy, and signed another bill that imposes new regulations requiring clinics that provide abortion care to meet the standards of ambulatory surgical treatment centers.

Tennessee lawmakers this year have introduced bills that would restrict reproductive rights in several ways, including banning abortion after 20 weeks of pregnancy, requiring a forced ultrasound for those seeking to terminate a pregnancy, and increasing reporting requirements for clinics that provide abortion care.

However, one mitigating factor for prospective Tennessee legislation is the requirement that each bill must have a companion bill. Nash said this makes it more difficult for bills to make it to the governor’s desk in Tennessee than it does in other states that lack the companion bill.

“The pattern that we’ve seen over the past few years with less attention paid to abortion restrictions in election years will be disrupted,” Nash said. “That’s changing the calculations for 2016. It’s a different year than what we’ve seen.”

The direction of each state legislature will become more apparent over the course of the next eight weeks. But Nash sees similarities between this year and another surprising year.

“After the 2010 elections, you had the sense that things were going to be tough on abortion restrictions, and you were still surprised at the amount of legislation that was moving,” Nash said.   

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

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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