The court’s conservative justices are so worried about agency overreach that they’re threatening the strongest...
IT CAME AS A SURPRISE TO many when the Arkansas legislature in March enacted a near-ban on abortion starting in the twelfth week of pregnancy. But this was just the latest in a slew of well-planned attacks on abortion rights that the anti-choice movement has launched in state after state.
The Arkansas campaign was particularly bold, though.
"It's worse than we expected actually," says Rita Sklar, executive director of the ACLU of Arkansas. "Our intel was that the Republican leadership had no stomach for this, that they had a conservative economic agenda but they didn't want these social issues." However, rightwing groups put a lot of pressure on elected officials, she says.
"The Arkansas Family Council and Right to Life did a good job scaring them to death," she explains. "One legislator told me he voted contrary to the way they wanted last session, and they had every local paper calling him a baby killer."
"This truly is a sad day for Arkansas women," said Jill June, president of Planned Parenthood of the Heartland, when the legislature overrode the governor's veto. "The Arkansas legislature has passed the most extreme anti-woman's health bill in the country. It puts the health and safety of Arkansas women and their families at risk."
But it was no accident. In fact, it was one of those days that the anti-choice groups have not only been waiting for but assiduously working toward -- not just in Arkansas, but around the country.
North Dakota outdid even Arkansas within the month by enacting a near-ban in the sixth week of pregnancy.
Last year, there were forty-three new laws restricting abortion, the most ever except for 2011 when an unprecedented ninety-two such laws passed. Much of this is the handiwork of Americans United for Life.
"A lot of people assume Roe is untouchable, and we disagree," explains Kristi Stone Hamrick, a publicist for Americans United for Life. "We have a template of legislation that will roll back Roe."
Americans United for Life is the anti-choice movement's equivalent of the American Legislative Exchange Council (ALEC), the rightwing generator of "model" state legislation that benefits its corporate members. Founded in 1971, Americans United for Life has been busy creating anti-choice bills -- forty in total -- that are now overwhelming statehouses across the country. Republicans are flexing their legislative muscle, turning their electoral gains into reactionary laws, particularly against women's reproductive access.
In at least fifteen states, Americans United for Life hires lobbyists -- such as the daughter of the former governor of Nebraska -- and works the halls of ALEC conferences to meet up with the state legislators in attendance.
"For us, it is very much a military strategy," Charmaine Yoest, president of Americans United for Life, has been quoted as saying. "Never attack where the enemy is strongest.... We pick our battles. What we do is very much under the radar screen."
With the Beltway divided between the anti-choice House and the pro-choice Senate, and the U.S. Supreme Court still pro-choice, the states are where most of the action is right now for anti-abortion groups. In the 1990s, these groups began pursuing more incremental restrictions of abortion access after hardcore activists shockingly murdered abortion practitioners and the nation recoiled against the movement.
So it refurbished its message and refined its techniques. As a result of this incremental strategy, 87 percent of counties in the United States no longer have an abortion provider, and it's getting worse.
"Last February we came out with an analysis of states and abortion restrictions," says Elizabeth Nash, the state analyst for the pro-choice Guttmacher Institute. "We listed thirteen states hostile in 2000. Now half the states are hostile. So there's a shrinking of states in the middle."
One approach by the anti-abortion forces is bringing technology into the debate. "Ultrasound technology has complicated the debate," says Ed Rivet, legislative director of Michigan Right to Life. "They have wiggly fingers and toes! That whole 'it's a blob of tissue,' that's long gone."
"With the videos of sonograms, how long can Roe v. Wade withstand these kinds of things?" asks Laura Garcia, a Boston College philosophy professor.
Mandating waiting periods is another approach.
For years, anti-choice activists have pursued twenty-four-hour waiting periods that make abortion more difficult and expensive. Now some states like Utah are expanding the waiting period to seventy-two hours.
And in March, South Dakota went a huge step further by enacting a law that says holidays and weekends don't count as part of its seventy-two-hour waiting period. As a result, some women will be forced into the impractical and often-dangerous position of having to wait up to six days before they can exercise their right to an abortion.
"If I go to a clinic on Friday and I consulted with my physician and went through all the requirements, I couldn't have an abortion on Saturday, or Sunday. And if Monday was Martin Luther King Day, my waiting period wouldn't start until Tuesday, and I couldn't have my abortion until Thursday," explains Heather Smith, communications director of the ACLU of South Dakota. "If there is a medical reason why this needs to be done earlier, it really causes problems. It's all about shaming the woman." Smith adds that the new restrictions were "signed into law, ironically enough, on International Women's Day."
Other legislative tricks include requiring all abortion providers to have visiting privileges at a nearby hospital.
In Mississippi, this law might force the one remaining clinic to close, since hospitals are refusing to grant privileges to the clinic's physicians, according to the Center for Reproductive Rights. Legislators in North Dakota, another state with only one clinic, are pursuing the same tactic.
In Virginia, a bill recently signed into law by the governor forces new clinics to meet the same administrative and construction standards as hospitals.
Kansas gives funds to centers providing "abortion alternatives" while cutting off funds to family planning centers offering a full range of health care -- a way to target Planned Parenthood clinics, a huge goal of the anti-choice movement. Last year, when Texas cut state funding for Planned Parenthood clinics, most of which did not even provide abortions, 50,000 women lost their provider of birth control and cancer screenings (the law is being contested in court).
Kansas is also considering a bill that would mandate the force-feeding of false medical claims to abortion patients (for instance, that it causes breast cancer). It and eight other states are also seeking to ban so-called sex-selective abortions in cases where there is reason to believe the sex of the fetus influences a woman's decision to seek an abortion. They claim to be doing so in the name of challenging sexism.
"This ultimate form of misogyny is happening in the United States," testified Steven Mosher, head of the Population Research Institute, to a Kansas senate committee in February. "We are not going to tolerate sex-selective abortion in our country.... We are going to defend the intrinsic dignity of unborn girls." Mosher admitted, though, that sex selection doesn't really seem to be a common practice in this country.
Another tactic is the enactment of so-called feticide laws, allowing the government to prosecute a person who attacks a pregnant woman for harming or killing her fetus. These are now on the books in thirty-eight states. "I submit it will be the undoing of Roe," argues Gerard Bradley, a Notre Dame law professor who is a board member of Americans United for Life. "It is scarcely unimaginable that the Court would now say a fetus is not a person with all the sonograms and DNA."
Bradley believes in criminal penalties for anyone -- including the woman having the abortion -- who harms the fetus. He makes a Fourteenth Amendment claim, equating the perpetrator of domestic violence with the woman getting an abortion. "Equal protection is violated to hold him accountable for what she is free to do," he says.
With the passage of the Affordable Care Act, anti-choice legislators are passing a new wave of laws preventing plans offered in state insurance exchanges from covering abortion or emergency contraception. In the name of defending the "religious freedom" of employers, some states like Missouri allow an employer to refuse contraception or abortion coverage in health plans.
"They are brazenly pivoting from choice to coercion," argued Yoest at a recent forum. "They want every American to pay" for abortions. "They want every American to participate" in abortions "regardless of their beliefs."
The claim that ensuring women have access to reproductive health care through their insurance plans threatens religious liberty is far from new, according to longtime observers of the Christian right.
"Year after year, the bishops around the United States prioritize restricting access to reproductive health care services and policing other people's sexual behaviors," notes Jon O'Brien, president of Catholics for Choice. "Recently, they've attempted to rebrand these efforts under the false pretense of protecting 'religious liberty,' but the truth is that they are simply trying to put new labels on the same old bottles of wine."
The anti-choice coalition seems overwhelming. Yet the rightwing laws still can be beaten back: Virginia's legislature passed a mandatory ultrasound bill but even the tea party governor refused to sign the most extreme version of it. Democrats retook the Colorado, Minnesota, and Maine statehouses in 2012, partly on the strength of a backlash against attacks on women's health. And a Democratic majority in the Kentucky House valiantly continues to block model bills from Americans United for Life.
Sometimes the anti-choice coalition doesn't hold. Conservative evangelicals are championing fetal personhood laws, while the bishops are remaining silent on this, at least for now.
Even in Mississippi in 2011, almost 58 percent of the voters defeated a ballot measure saying life begins at fertilization -- though anti-choice forces vow to bring it to the statehouse where they say they have a better chance of passage.
And last November, 55 percent of Florida voters defended the use of public funds for abortion.
Yet the well-oiled machine that is the anti-abortion movement in the states will only really be stopped in two ways: in the courts or by retaking the state legislatures. Otherwise, it will continue to win the war of attrition.
Abby Scher, Ph.D., is interim research director of Political Research Associates, a progressive think tank that tracks the right.