December 2011, Week 3


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Mon, 19 Dec 2011 22:12:01 -0500
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Who's winning the abortion war? A year of GOP
overreaching has created surprising pro-choice
victories -- but now the real battle is on its way 

By Irin Carmon

Sunday, Dec 4, 2011


This was the year politicians and women's groups
started using "war on women" to refer to the Republican
obsession with regulating uteruses. So if it's a war,
who's winning?

The answer, frustratingly, is no one. This year saw the
cementing of a consensus that neither side particularly
likes: Abortion is still legal, but Republicans are
doing an ever-better and more innovative job of making
it as odious, expensive and shaming as possible to
obtain. Although every side needs a sense of urgency to
rally the troops, the good-ish news is that the federal
court system helped hold back the tide on the worst
laws. And for better or worse, anti-choicers got more
honest than they've ever been about their hostility to
birth control, which is used and supported by the vast
majority of Americans.

Broadly speaking, the first half of the year saw
Republicans in statehouses passing ever more outrageous
laws -- 80 in all this year, more than double the
previous record -- followed by a series of judges
rolling their eyes and sending them home mostly
empty-handed, for now at least.

Along the way, the pro-choice movement has made some
unlikely allies. A quiz: Who recently suggested that
the "Texas legislature wishes to prioritize an
ideological agenda over the health and safety of
women"? Judge Sam Sparks, a George H.W. Bush appointee,
temporarily striking down a law that would have forced
women to view ultrasounds and hear a fetal heartbeat
before an abortion. Who, ruling on Nebraska's so-called
informed consent law that opened the door for suing
doctors simply on the basis of a woman's regret,
scoffed that consequences and remorse are "part of the
price we pay for our freedom. (Only Edith Piaf was
without regret.)"? That would be Laurie Smith Camp,
appointed to the federal bench by George W. Bush.

Meanwhile, a Clinton-appointed judge enjoined a
particularly audacious new South Dakota law that would
have imposed the longest waiting period in the country
and forced women to visit religious-based crisis
pregnancy centers whose explicit aim is to talk them
out of an abortion. Judge Karen Schreier wrote that the
last provision "humiliates and degrades [a woman] as a
human being." In those cases, both Nebraska and South
Dakota, in apparent realizations that they overreached,
won't appeal.

"Judges know the score," says Linda Greenhouse, who
since retiring from the New York Times has co-edited a
book and several legal articles focusing on
reproductive rights. "They know that there's a movement
out there that's going to push and push and push, which
the political system in some of these states seem
powerless to stop. These enactments have certainly gone
beyond anything the Supreme Court has permitted."

What the Supreme Court has permitted is not, in fact,
what's laid down in Roe. Instead, women are living
under the "undue burden" standard of Planned Parenthood
v. Casey, which turns 20 next year.  To put it bluntly,
you're allowed to burden a woman seeking an abortion,
but only so much. Nancy Northrup, president of the
Center for Reproductive Rights, says of Casey, "I think
20 years have shown that  is unworkable. What does it
mean that you have a fundamental right to access
abortion services but the government can make it really
hard to do so?"

But given the court's current composition, that's the
best pro-choicers have implicitly decided they can hope
for - Casey's author, Sandra Day O'Connor, has been
replaced by Samuel Alito, and the last time co-author
Anthony Kennedy ruled on abortion, in 2007, he sounded
distinctly sympathetic to unscientific anti-choice
claims. "While we find no reliable data to measure the
phenomenon, it seems unexceptionable to conclude some
women come to regret their choice to abort the infant
life they once created and sustained," he wrote. (Lack
of reliable data has never stopped the anti-choice side
before - the attorney general of South Dakota is still
demanding a rehearing from the circuit court on an
earlier law forcing doctors to push a phony link
between abortion and suicide.)

There is also no reliable data to back the "fetal pain"
rationale behind laws banning later abortions in six
states, and pro-choicers have evidently decided not to
push their luck with Kennedy by challenging them. Or,
as Scott Lemieux, a legal scholar and blogger, puts it,
"The fetal pain thing is complete bullshit, but Kennedy
has already proven that he doesn't care what the
evidence is."

In most of those states, there isn't even a provider
who performs later abortions, making the point
academic. But there is at least one, Dr. LeRoy Carhart,
whose name is on the last two Supreme Court decisions
on abortion - including the court's upholding of a
later abortion procedure with no health-of-the-mother
exception. But instead of going to court in his home
state of Nebraska, which passed such a ban explicitly
to prevent him from taking on the practice of his
murdered friend Dr. George Tiller, he's started
commuting to a clinic he opened in Maryland. "Nothing
is off the table," he told me, but given the
specificities of the case and the court's current
composition, there are no plans to challenge the laws.

Implicitly, the legal arm of the movement has decided
that the status quo is the lesser evil. Rachel Maddow
and Dahlia Lithwick suggested earlier this year that
this was cowardly capitulation; Lithwick wrote
scathingly that if Republicans kept exploiting that
reluctance with ever-bolder restrictions in receptive
states, "The end result is that Roe remains on the
books, while for all practical purposes women can't get
an abortion in Ohio, North Dakota or Florida. I suppose
you can call it half a loaf, but then, having half a
loaf only really works if you are sort of pregnant."
But if a challenge backfires, it could make it even
harder for Carhart to take on those difficult cases
while driving unpopular, little-understood later
abortions back into the spotlight. (Ironically, it's
the incremental regulations that the courts have
allowed, including parental notification laws, waiting
periods and public funding bans, that have contributed
to at least some of those later abortions, by making
earlier ones harder to access.)

"I don't think we're rolling over and playing dead,"
Carhart says. "It's just that we need to go with a
slam-dunk winner."

And if anti-choicers are paying attention, they aren't
going to push outright bans anyway, especially not
after 58 percent of the electorate in deep-red
Mississippi rejected a Personhood amendment that had
the support of the state's political establishment.
Personhood, with its no-exceptions abortion ban and at
least the intent to ban popular forms of birth control
and reproductive technology, proved to be the suicide
death cult of the movement, validating the incremental
anti-choice strategy of just chipping away at access.
As Greenhouse (who calls Personhood "take your
fertilized egg to the prom") notes, "If you were on
that side of the street, Mississippi would be a wakeup
call to reconsider your strategy." The fact that the
country in general still wants abortion to be legal
won't be lost on the justices either.

In other words, it's not capitulation to push back at
the restrictions that affect the most women and show
the anti-choice movement's opposition to any type of
family planning - especially because so far the
strategy's working.

But hold off on the wild celebration of the lower
courts (or Republican-appointed judges) as a bulwark of
choice anyway. For one thing, it depends on federal
judicial nominations, which under Obama have either
been slow to come or blocked by the Senate, or both.
And as Jennifer Dalven, director of the ACLU's 
Reproductive Freedom Project, points out, some of those
wins weren't even explicitly pro-choice. "A good number
of the state laws have been blocked because a court
found that they violated a right other than the right
to reproductive choice," she says, such as the forced
ultrasound laws in Texas and North Carolina being
blocked on First Amendment grounds. (Still, that might
be a winning strategy before Kennedy).

And for the broader movement, says Reproductive Health
Reality Check editor in chief Jodi Jacobson, "legal
approaches are fundamentally necessary but they're
insufficient." On the federal level, a Democratic
Senate and the threat of a presidential veto have so
far held back the wild anti-choice posturing of the
House (including some Democrats), but next year, of
course, is an election year.

In all of this, pro-choicers are still putting out
fires. According to Guttmacher, that's never been more
true: "Legislators are proposing little in the way of
proactive initiatives aimed at expanding access to
reproductive health-related services; this stands in
sharp contrast to recent years," adding, "For the
moment, at least, supporters of reproductive health and
rights are almost uniformly playing defense at the
state level." (There was one major victory nationally,
when copay-free contraception was adopted as part of
the Affordable Care Act provisions, which also happened
to be another moment where "pro-lifers" in office
showed their disgust for birth control.)

So 2011 was a year when the consensus held: You can get
an abortion, but depending on which state you live in,
anti-choicers are still going to make you suffer as
much as possible for it and make it as hard as possible
to pay for with even private insurance. (And plenty of
Democrats in Congress continue to tout the Hyde
Amendment, which prevents federal funding for abortion
in almost every case, as a form of ass-covering in the
culture wars). That consensus combined with the state
of the economy has meant terrible things for the most
vulnerable women. According to recent data, unintended
pregnancies continue to drop among wealthier women, but
in recent years they've skyrocketed among poorer ones,
along with, unsurprisingly, the abortion rate, which is
declining generally but rising among poor women since
2000. The courts may be the most visible battle, but
those disparities make up the war.

Irin Carmon is a staff writer for Salon.


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