Right-wing forces positioned to end the right to abortion

Bob Sheak, May 20, 2022

Introduction

The right-wing political and social movements to end or severely curtail access to abortion are relentless and anti-democratic. Democrats in the U.S. Senate are unable to pass abortion rights legislation. The right-wing U.S. Supreme Court moves toward banning Roe v Wade. Republican legislators in states across the country continue to mandate laws that limit access to abortion and also increase the penalties on those who violate these laws. There is a long-standing, well-funded, and well-organized anti-abortion movement that extends its influence. And right-wing media spread disinformation about the realities of abortion.

The last chapter in this story has not yet been written. A majority of Americans support abortion rights or some of them. There is a vibrant reproductive rights infrastructure and committed people who are passionate in their efforts to educate and organize about the need to preserve such rights. The right to abortion protects women from the authoritarian and punitive interventions in their reproductive decisions from state officials. We will know more about how this will end up when the results of the November 2022 elections are known.

But unfolding events are worrisome.

The Right has momentum

#1 – Prevented abortion rights legislation from being enacted

The U.S. House passed the 2021 Women’s Health Protection Act on September, 2021, as reported by the Center for Reproductive Rights (https://reproductiverights.org/historic-vote-house-passes-womens-health-protection-act). The Center points out that this is “the first ever congressional vote on proactive, standalone legislation to protect abortion rights. The bill, passed by a 218-211 vote, safeguards abortion access from state-level bans and restrictions.” Nancy Northup, president and CEO of the Center for Reproductive Rights, noted that the “House has stepped in where the courts have failed us. This historic vote is the first time legislation has advanced in Congress to establish a right to abortion. Now the Senate must act or the current crisis on abortion access in Texas could reverberate across large swaths of the nation.” 

The Senate Democrats subsequently tried and failed twice to pass the WHPA. In February, Nick Lacata reports, the legislation was “defeated by the Senate 46-48, with Sen. Joe Manchin joining the Republicans against it” as [he would do] again on the second vote (https://counterpunch.org/2022/05/16/the-buffalo-shooting-and-the-great-replacement). Then on Wednesday May 11, “the Senate, for the second time in 2022, defeated Democrats’ legislation [S 4132] to protect abortion rights under federal law. The legislation went down 51-49.

It was a long shot. Few analysts thought the legislation would get 60 votes to bypass a Republican filibuster and they were right. Joe Manchin (D-WV) refused to join other Democratic Senators in circumventing the filibuster through a reconciliation process, which takes a simple majority vote of 51. Nonetheless, Licata writes, “Senate Democrats pushed ahead believing not that they would win the necessary votes to pass the Women’s Health Protection Act, but that it would rouse voters sympathetic to retaining at least some aspects of Roe to become involved in the electoral process and, at a minimum, vote for pro-choice Democratic candidates.”

Provisions of the Women’s Health Protection Act

The details of the legislation are printed by the U.S. Government Publishing Office and can be found at: https://www.govinfo.gov/content/pkg/BILLS-117s4132pcs/BILLS-117s4132pcs.htm). Here from this source are the core provisions of the Senate bill, its goals and what would be impermissible in the unlikely event that the US Senate passed the Women’s Health Care Protection Act.

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EC. 3. PERMITTED SERVICES.

    (a) General Rule. A health care provider has a statutory right

under this Act to provide abortion services, and may provide abortion

services, and that provider’s patient has a corresponding right to

receive such services, without any of the following limitations or

requirements:

            (1) A requirement that a health care provider perform

        specific tests or medical procedures in connection with the

        provision of abortion services, unless generally required for

        the provision of medically comparable procedures.

            (2) A requirement that the same health care provider who

        provides abortion services also perform specified tests,

        services, or procedures prior to or subsequent to the abortion.

            (3) A requirement that a health care provider offer or

        provide the patient seeking abortion services medically

        inaccurate information in advance of or during abortion

        services.

            (4) A limitation on a health care provider’s ability to

        prescribe or dispense drugs based on current evidence-based

        regimens or the provider’s good-faith medical judgment, other

        than a limitation generally applicable to the medical

        profession.

            (5) A limitation on a health care provider’s ability to

        provide abortion services via telemedicine, other than a

        limitation generally applicable to the provision of medical

        services via telemedicine.

            (6) A requirement or limitation concerning the physical

        plant, equipment, staffing, or hospital transfer arrangements

        of facilities where abortion services are provided, or the

        credentials or hospital privileges or status of personnel at

        such facilities, that is not imposed on facilities or the

        personnel of facilities where medically comparable procedures

        are performed.

            (7) A requirement that, prior to obtaining an abortion, a

        patient make one or more medically unnecessary in-person visits

        to the provider of abortion services or to any individual or

        entity that does not provide abortion services.

            (8) A prohibition on abortion at any point or points in

        time prior to fetal viability, including a prohibition or

        restriction on a particular abortion procedure.

            (9) A prohibition on abortion after fetal viability when,

        in the good-faith medical judgment of the treating health care

        provider, continuation of the pregnancy would pose a risk to

        the pregnant patient’s life or health.

            (10) A limitation on a health care provider’s ability to

        provide immediate abortion services when that health care

        provider believes, based on the good-faith medical judgment of

        the provider, that delay would pose a risk to the patient’s

        health.

            (11) A requirement that a patient seeking abortion services

        at any point or points in time prior to fetal viability

        disclose the patient’s reason or reasons for seeking abortion

        services, or a limitation on the provision or obtaining of

        abortion services at any point or points in time prior to fetal

        viability based on any actual, perceived, or potential reason

        or reasons of the patient for obtaining abortion services,

        regardless of whether the limitation is based on a health care

        provider’s degree of actual or constructive knowledge of such

        reason or reasons.

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Republicans at all levels of the political system oppose abortion rights.

One thing is clear. Most, if not all, Republicans in the House and Senate are opposed to legislation that protects a woman’s right to an abortion. They argue that at fertilization the embryo is a “person” deserving Constitutional protection, that those who violate relevant laws against abortion are to be held liable for possible criminal prosecution, and that individual citizens are promised financial rewards when they successfully inform authorities about any effort by physicians or others to facilitate an abortion.

Licata adds: “If Congress, in its current makeup, is unable to protect the right of women to have some freedom over their choice in having a child, then the Democrats will have to focus on state politics. They must craft a message on abortion that will assist their candidates in select states to retain or expand the number of seats in that chamber.” The problem is that Republicans are holding their own in the majority of states, suppressing the votes of opponents, gerrymandering “safe” congressional and state districts, and passing anti-democratic rules to enable Republican state election officials to reject the popular votes when that vote goes against them.

Support for S. 4132, the Women’s Health Protection Act of 2022

The Leadership Conference on Civil and Human Rights published a letter to Senate leader Chuck Schumer on May 10, 2022 (https://civilrights.org/resource/support-s-4132-the-womens-health-protection-act-of-2022/#).

“On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 230 national organizations to promote and protect the civil and human rights of all persons in the United States, and the 93 undersigned organizations, we write in support of S. 4132, the Women’s Health Protection Act of 2022. We urge all senators to vote in favor of the bill. The Leadership Conference will include this vote in its Voting Record for the 117th Congress.

The letter points to the mounting threats to abortion rights.

“This issue is one of grave urgency for the civil and human rights community and for people across the United States. A draft Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, which became public last week, indicates that a majority of justices are prepared to overturn the constitutional right to abortion established in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey.[1] If the draft decision prevails, as many as 28 states could ban or further limit abortion in the near future, which would block more than half the people in the United States who could become pregnant from their right to an abortion.[2] We have arrived at this perilous moment after a decades-long campaign by wealthy and powerful interests to rig the judiciary and stack our courts with extremists,[3] including Supreme Court justices selected with the express purpose of overturning decades of legal precedent and ending legal abortion.[4] While this decision has not yet been issued and abortion remains legal in the United States, immediate congressional action is imperative for the ability of people who can become pregnant to control their own bodies, lives, and futures.

“By protecting abortion access from medically unnecessary restrictions that obstruct the right of all persons to obtain safe, legal abortion services, the Women’s Health Protection Act (WHPA) seeks to remedy and prevent the onslaught of state-level abortion bans and restrictions that cause significant and sometimes insurmountable challenges to receiving abortion care. These restrictions disproportionately impact the ability of low-income women and women of color to access health care, robs pregnant people of bodily autonomy, and threatens the economic security of families and individuals, many of whom are already struggling to get by.

Will the abortion issue help Democrats in November?

Democrats in the U.S. Congress think that it will. Here’s what Licata offers on this issue.

“Schumer had warned the Republicans that their support of the Supreme Court Justices’ banning abortions would cost them at the polls. On the Senate floor, he said, ‘the elections this November will have consequences because the rights of 100 million women are now on the ballot.”

Poll results provide some support for such optimism. Licata points out, “Polls have shown that most voters don’t want to see the supreme court overturn the 1973 Roe v Wade ruling that protected abortion rights. He refers to the following examples.

“In February, a Yahoo News survey found that most voters supported ‘a constitutional right that women in all states should have some access to abortion,’ while only about 30 percent agreed that ‘states should be able to outlaw’ abortion.

“Polling for retaining Roe is surprisingly strong across the political spectrum. In a Fox News poll this month, May 3, most Democrats and Independents (both over 70%) voted to let it stand. Even 60% of Republicans were of that opinion.

“Another recent poll in May taken by Politico found that nearly 50 percent of voters want Congress to pass ‘a bill to establish federal abortion rights granted through Roe v. Wade, in case the Supreme Court overturns the ruling.’ And only about 30 percent oppose overturning Roe.

Support among the public for abortion rights is growing

Andrea Germanos reports on a May 2022 NBC poll that finds support for abortion rights at “new high” (https://commondreams.org/news/2022/05/16/evisceration-roe-looms-poll-finds-support-abortion-rights-new-high).

“Released Sunday,” she writes, “the survey of 1,000 adults reveals that 60% say abortion should be legal at least some of the time. Thirty-seven percent say it should be legal all the time, and 23% say it should be legal most of the time. That combined amount of support marks the highest level since the poll first asked the question in 2003.” Other findings of the poll include the following.

“Just 5% say it should be illegal without exceptions—a new low level of support for that position—while 32% say it should be illegal except in cases of rape, incest, or to save the mother’s life.

“The poll also found that 63% oppose overturning Roe, 54% of whom strongly oppose overturning the 1973 Supreme Court decision. In contrast, 30% support overturning the ruling.”

“The survey…was conducted this month after Politico published Supreme Court Justice Samuel Alito’s draft majority opinion for Dobbs v. Jackson Women’s Health Organization that would overturn the abortion rights enshrined by Roe and later affirmed in Planned Parenthood v. Casey.” In response to the Alito draft, “pro-choice advocates held actions Saturday [May 14] in cities nationwide.”

Will they vote?

With so many important issues before the public, it is not clear how abortion will figure in how people vote or don’t vote in the November 2022 elections.

Pollsters from FiveThirtyEight periodically ask a sample of Americans about what issues are most important. In the most recent poll of 2,000 Americans, they found, as of the second week in May, that inflation is the most important issue for people (https://fivethitryeight.com/features/we-asked-2000-americans-about-their-biggest-concern-the-resounding-answer-inflation).

“At this point, the answer to what Americans are most worried about is pretty straightforward: inflation. In the first FiveThirtyEight/Ipsos poll,1 52 percent of Americans said the most important issue facing the country was inflation. We asked Americans this question in a variety of ways,2 but regardless of how we asked it, the top answer was always the same: inflation.

“It’s true that a larger percentage of Republicans than Democrats or independents in our poll said they were concerned about inflation. But inflation still led the way regardless of party identification: About two-thirds of Republicans selected it as a top issue, as did about half of all independents and slightly more than 40 percent of Democrats. Inflation was the top issue for respondents of all age groups and for both men and women, too. Now, some Americans did find other issues more important, though. For instance, 43 percent of Black Americans listed “race and racism” as a top concern, while 37 percent named inflation.”

What about the abortion issue? Out of 20 “answers,” the issue of abortion ranked a lowly 16. This low ranking does not mean that abortion won’t play a role in the November elections. Lots can happen over the next six months. As in the case of most important issues, it depends on how relatively effective pro-choice parties and organizations are, the resources they have to support political action and movement building, what issues at the time are absorbing public attention and concern, and how over the coming months the media treat the issue.

Meanwhile, the Supreme Court moves to ban or severely limit access to abortions

Ken Levy, a professor of criminal law at Louisiana State University Law School, and Jody Lynee Madeira, professor of law and Louis F. Niezer Faculty Fellow, Maurer School of Law, at Indiana-Bloomington University, consider the dubious assumptions of the Supreme Court on the abortion issue, and particularly of the assumptions in the recently leaked Justice Samuel Alito’s “draft opinion in Dobbs v. Jackson Women’s Health. If the court rules in favor of the Dobbs case and ends or severely curtails access to abortion, Levy and Madeira anticipate that it will “unleash hardship, suffering, and chaos for millions.” The court’s official opinion will be released in June (https://commondreams.com/views/2022/05/07/right-wing-supreme-court-about-unleash-hardship-suffering-and-chaos-millions). The law professors argue that the fundamental issue concerns whether Americans have a right to privacy and protection against undue interference by the political system in their lives.

Right-wing Justice Alito offers two reasons for this why he concludes that the Constitution  “does not explicitly protect the right to abortion, and the right to obtain an abortion is neither ‘deeply rooted in [our] history and tradition’ nor ‘essential to our Nation’s ‘scheme of ordered liberty.’”   

Contrary to Justice Alito, Levy and Madeira point out that “a right may be constitutionally protected even if is not explicitly stated in the Constitution, “not deeply rooted in [our] history and tradition,” and not “essential to our Nation’s ‘scheme of ordered liberty.’” They refer to a position taken by Justice Anthony Kennedy in the Supreme Court case, County of Sacramento v. Lewis (1998).

“‘[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.’ (Substantive due process is the doctrine that specific language in the Fourteenth Amendment — ‘No State shall … deprive any person of life, liberty, or property, without due process of law …’ — guarantees citizens not only procedural due process but also substantive autonomy or privacy rights.)  

“Seventeen years later, in Obergefell v. Hodges (2015), Justice Kennedy offered a fifth criterion in addition to explicit constitutional text, history, tradition, and essentiality to ordered liberty: “The fundamental liberties protected by [the Fourteenth Amendment Due Process] Clause … extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”    

“Yet a sixth criterion was offered in Griswold v. Connecticut (1964): An ‘unenumerated’ right may be constitutionally protected as long as it can be reasonably inferred from rights that are explicitly stated in the Constitution.

“Writing for the majority, Justice William O. Douglas [then in 1964] argued that the right of married couples to use contraception falls within a more general ‘right to privacy’ and that this more general right itself derives from specific rights explicitly stated in the Constitution: the right of free association in the First Amendment, the right of domiciliary exclusion in the Third Amendment, the right to be secure “against unreasonable searches and seizures” in the Fourth Amendment, and the right against self-incrimination in the Fifth Amendment.   

“According to Justice Douglas, these specific rights of privacy are both more ‘secure” and more “meaningful’ if it is assumed that the Constitution does indeed contain a general right to privacy. By analogy, our First Amendment right to freedom of speech is more robust, less vulnerable to government intervention, if we interpret it broadly rather than narrowly — that is, if we interpret it to protect not merely the right to speak but also the rights to think, read, publish and teach. If thinking, reading, publishing, and teaching were not thought to be constitutionally protected — because none of these verbs is explicitly mentioned in the First Amendment — our right to freedom of speech would be much narrower and under threat of being narrowed even further.   

Levy and Madeira conclude: “While Justice Alito does not deny a general right to privacy, he also does not affirm it. This ominous omission leaves the right to privacy, and therefore all the specific autonomy rights that have been predicated upon it — not only the right to use contraception but also the right to interracial marriage, to gay marriage, to consensual sodomy, to non-nuclear-familial cohabitation, and to refusal of medical assistance — vulnerable to eradication in one fell swoop.”   

And at the state and local levels.

Here’s some of what I wrote in a post titled the “right wing’s assault on reproductive rights gains disturbing momentum” (https://vitalissues-bobsheak.com/2021/12/23/the-right-wings-assault-on-reproductive-rights-gains-disturbing-momentum)

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Since the landmark court decision of Roe v. Wade in 1973, right-wing forces have supported and passed into law a bevy of restrictions designed to limit the right of female teenagers and women to abortion.

Elizabeth Nash refers to documentation of the last point, writing that “a staggering 1,300 restrictions enacted by states since the U.S. Supreme Court protected abortion rights in 1973 in its Roe v. Wade decision…. It’s an astounding number, although many of these laws were blocked in court, most of them are in effect today” (https://www.scientificamerican.com/article/abortion-rights-are-at-the-greatest-risk-since-roe-v-wade-was-decided-in-1972).

 In another article, Nash reports on a tally on abortion restrictions through the first 10 months of 2021 (https://guttmacher.org/article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year).

“States have enacted 106 abortion restrictions so far in 2021, a year that has been marked by unprecedented threats to U.S. abortion rights and access. Not only is 106 the highest number of restrictions passed since Roe v. Wade was decided in 1973, but also this year is the first time that Guttmacher’s count of enacted restrictions has hit triple digits. Earlier this year, the number of restrictions had already surpassed the previous record of 89 restrictions set in 2011

Professor and writer Dana Greene Foster offers similar evidence from her in-depth book, The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having – or being denied – an Abortion (publ. 2020), and writes:

“Conservative statehouses have passed countless regulations, keeping abortion legal but rendering it all be inaccessible for many Americans who don’t have the resources to travel great distances to less restrictive states. Forty-three states ban abortions for most women after a certain point in their pregnancy. A third of states currently ban abortion at 20 weeks gestation. And in 2019, at least 17 states introduced legislation that would ban abortion at six weeks into pregnancy or even earlier” (p. 2).

The Outcome?

How all this will play out depends in the final analysis on who controls the levers of power in government, that is, on politics and elections. Currently, the GOP, a largely pro-life party, is working in the states to suppress the vote of opponents, intensifying the gerrymandered arrangements in congressional districts, and changing the electoral rules to enable state legislatures to decide which votes to count or not. David Pepper, among others, documents these unabashed anti-democratic projects in his book, Laboratories of Democracy. The Republicans also benefit from a huge electoral base of support that has been galvanized, not created, by Trump, though it appears slavishly willing to follow his leads.  

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The consequences of ending or severely curtailing abortion rights – some examples

#1 – Overturning “Roe” Would Immediately Activate Abortion Penalties in 13 States

Justin L. Brooks reports on this fact in an article for Truthout on May 7, 2022

(https://truthout.org/articles/overturning-roe-would-immediately-activate-abortion-penalties-in-13-states).

Brooks writes: “Fueling widespread anguish over this week’s revelation that Roe v. Wade will likely be overturned in the coming weeks is the reality that the end of Roe would immediately activate civil and criminal penalties for those who obtain abortions or assist people to obtain abortions in 13 states.”

These states have “trigger legislation… that contains both a substantive provision and a trigger provision. The substantive provision of the law outlines what the law would be if the court were to change any given precedent. In most states with anti-abortion legislation, the trigger provisions plainly state that abortion restrictions would take effect as soon as Roe is overruled. For example, Louisiana’s RS 40:1061, trigger legislation passed in 2006, bans all abortions without exception and reads, ‘… this Act shall become effective immediately upon, and to the extent permitted, by the occurrence of … any decision of the United States which reverses in whole or in part, Roe v. Wade … thereby restoring to the state of Louisiana the authority to prohibit abortion.’

“At present, many other states — Tennessee, Arkansas, Kentucky, North Dakota, Missouri, South Dakota and Utah — have passed anti-abortion trigger legislation that awaits and anticipates the U.S. Supreme Court overruling Roe v. Wade. To be sure, trigger legislation does not have to be as explicit as the 2006 Louisiana law. For example, in 2019 Georgia passed HB 481, which bans all abortions after six weeks; it also criminalizes all attempts to obtain an abortion after the six-week cutoff. These criminal statutes are currently unenforceable under Casey, but Alito’s draft makes clear that the court would be overruling both Roe and Casey. This means that, after a person endures a six-week pregnancy in the state of Georgia, self-termination of that pregnancy would be murder, traveling to a different state to obtain an abortion would be conspiracy to commit murder, and assisting someone with obtaining an abortion would be conspiracy to commit murder in a post-Dobbs world. This is because under Georgia law, a fetus is a legal human, or a resident of the state. If it is not yet clear that trigger legislation eschews the rule of law, it is worth noting that it poses a substantial threat to the legitimacy of our representative democracy.”

Brooks continues: “If the court overturns Roe without condemning the trigger legislation, this could become the go-to strategy for conservatives who aim to overrule settled law. To be clear, by Alito’s rationale, there are other unenumerated rights that the majority-conservative court would likely hold are not ‘deeply rooted in the Nation’s history’ and thus do not warrant constitutional protection. These fundamental rights were created in landmark cases such as Brown v. Board of Education (a 1954 case outlawing segregated public schools), Gideon v. Wainwright (a 1963 case guaranteeing legal counsel to anyone accused of a crime), Loving v. Virginia (a 1967 case outlawing state legislation that banned interracial marriage), Lawrence v. Texas (a 2003 case invalidating sodomy laws that effectively criminalized same-sex intercourse), and Obergefell v. Hodges (a 2015 case guaranteeing the right to marry an individual of the same sex), among others. To offer an illustration of this strategy in effect, the Arkansas legislature can pass anti-interracial trigger legislation in its next legislative session that states:

“Interracial marriage is prohibited in the state of Arkansas. This will take effect if and when the Supreme Court overrules Loving v. Virginia.” If the court subsequently finds that interracial marriage is not a fundamental right, then the substantive provision would become enforceable law in Arkansas.”

“If Alito’s leaked draft is indicative of how the court will rule in Dobbs, it should be clear to us all that the conservative majority of the court is not concerned with constitutional precedent or the legitimacy of the law. It is not concerned with democratic deliberation and whether state legislatures represent majority will. It is, quite plainly, a coalition of jurists who are members of an aggrieved political bloc.

They seek to do nothing less than to throw the U.S. democratic republic into further disarray, and trigger legislation only makes that process more expedient.

#2 – Disrupt the lives of millions of individuals and families

Kelly Hayes, The End of “Roe” Will Lead to More Family Separation and Child Disappearance, Truthout, May 12, 2022

https://truthout.org/audio/the-end-of-roe-will-lead-to-more-family-separation-and-child-disappearance

-Sophie Novack, A glimpse of a Political Post-Roe Future Through Texas Women’s Stories, Washington Post, May 15, 2022

(https://washingtonpost.com/magazine/interactive/2022/texas-women-abortion-stories)

#3 – On the assumption of “fetal personhood,” the state will allow medical interventions to force women to give birth

Rebecca Kluchin, professor of U.S. women’s history and history of medicine at California State University, Sacramento, argues that “if courts recognize fetal personhood, women’s rights are [and will be] curtailed,” and one outcome will be “forced medical interventions” (https://washingtonpost.com/outlook/2022/05/12/if-courts-recognize-fetal-personhood-womens-rights-are-curtailed).

Antiabortion advocates have been highlighting the argument since 1973 right after Roe v. Wade was approved by the Supreme Court that personhood begins with conception and the creation of an embryo. Kluchin writes: “As soon as the court handed down the decision in Roe in 1973, antiabortion legislators tried to include a Human Life Amendment in the Constitution that said life begins at conception. If the court overturns Roe this summer [2022] as a leaked draft opinion indicates, antiabortion legislators probably will again try to solidify fetal rights at the federal level.”

Kluchin refers to the claim that “the fetus has rights akin to a child already born — originated in the mid-19th century, when Boston physician Horatio Storer led the first movement to criminalize abortion at the state level. Storer and his supporters referred to fetuses as children, and cast abortion as murder and women who underwent the procedure as butchers in need of strong patriarchal guidance.”

The next generation of abortion opponents – “white, male and Catholic –
began to invoke fetuses’ right to life.” By the early 1960s, “they explicitly connected this claim to the Declaration of Independence. Just a few years later, as they rallied to halt the liberalization of abortion laws in states across the nation, antiabortion activists expanded their movement by reaching out to evangelical Christians to help them secure citizenship for the ‘unborn.”

Forced caesarean births

Kluchin recounts a case from 1986 that “makes the violence embedded within the claim of fetal personhood and court-ordered medical treatment clear.” The case involved Ayesha Madyun, nineteen-year-old and pregnant for the first time, who entered the D.C. General hospital, waiting for two days after her water had broken because she lacked health insurance or the financial wherewithal to pay the hospitable bill for these days.” Ayesha entered the hospital only after “substantial contractions began.” But her labor stalled, because, as her husband Mustafaa Madyun believed, hospital staff kept “his wife to bed in a prone position, refusing to allow her to walk or even sit up and kept her attached her to a fetal heart rate monitor.” Sixty-five hours after her water broke, the chief obstetrics and gynecology resident John Cummings insisted that Madyun undergo a Caesarean immediately but was unable to persuade her. Cummings then turned to the courts. There was no indication that the fetus was a risk.

The D.C. Superior Court judge on duty that night, Richard A. Levie, rushed to the hospital to hold an emergency hearing. The lawyer assigned to represent the Madyuns had had less than 30 minutes to interview her clients and no time to consult Ayesha Madyun’s medical records before the hearing began at midnight. The court proceedings took place outside of her room, excluding her from participating.

“At 1:05 a.m., Levie ordered Ayesha Madyun to undergo an immediate Caesarean section. “It is one thing for an adult to gamble with nature regarding his or her own life; it is quite another when the gamble involves the life or death of an unborn infant,” he declared. Two appellate judges upheld the order via phone an hour later. At 3:30 a.m. Madyun delivered a healthy, six-and-a-half-pound baby, Ishaan, via Caesarean section. She likened the surgery to being raped.”

Ayesha Madyun’s case was not that unusual.

“In many forced Caesarean cases, obstetricians, hospital administrators or social workers gained custody of the fetus — while still inside its mother — and used their new authority to compel pregnant women to undergo surgery on behalf of their ward. The court orders expired immediately after birth, at which time mothers gained custody of their newborns.” Then in a 1990 case, In Re Ac, the court reversed its position, allowing “family members of incapacitated patients to make medical decisions on their behalf and supported a patient’s right ‘to accept or refuse medical treatment.’ This decision “significantly reduced the practice of court-ordered Caesareans.”

But, Kluchin warns, if “fetal personhood becomes a legal reality… efforts to force pregnant women to accept medical interventions, including blood transfusions and Caesarean sections,” will become the law of the land.”

#4 – Abortion of even the fertilized egg viewed as “murder”

Kaia Hubbard reports on a Louisiana law that makes abortion murder

(https://usnews.com/news/national-news/articles/2022-05-06/the-push-to-make-fetuses-people-and-abortion-murder). This represents a shift in the goals of the anti-abortion movement. Hubbard delves into the issue as follows.

“Historically, the anti-abortion movement has been hesitant to punish women who choose to terminate a pregnancy, instead painting them as victims to the abortion practice. But recent developments may suggest a future where states pursue criminal charges not only against abortion providers but also against the people seeking them out.”

“The new bill in Louisiana, known as the ‘Abolition of Abortion’ act, is an even more concrete step toward criminalizing the woman rather than the provider by way of making a fetus a human being. The bill says it would ‘ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings,’ going on to dictate that the consequences associated with the homicide of any person would be extended to an unborn child.

“The occurrence is also happening more subtly, in legal moves unrelated to abortion that sought to criminalize pregnant women for harming an “unborn child,” like in South Carolina and Alabama, where the state supreme courts have upheld convictions ruling that substance use in pregnancy constitutes criminal child abuse.

“In reality, the occurrence – of someone being charged with a crime for harming a fetus – is not unusual. As of 2018, at least 38 states had fetal homicide laws conferring rights or protections upon the fetus, according to the National Conference of State Legislatures. While some of those laws explicitly set parameters around abortion, excluding it from homicide charges, others make no mention of the procedure. And the charges even appear to have become so prolific that a recent proposal in California would attempt to combat the prosecution of pregnant women for crimes related to pregnancy loss by allowing those who are pregnant to sue prosecutors for incorrectly charging them.”

“In some more recent legislation, the anti-abortion movement also appears to have turned its back on messaging that promoted the ‘health and safety of the mother’ by stripping bills of exemptions to the procedure that have been somewhat common, at least in recent memory: namely, exceptions for incest, rape and the health or wellbeing of the mother.

“Mississippi’s ban beyond 15 weeks of pregnancy, along with Texas’ heartbeat abortion ban and more recently bans that have been signed into law in Florida, Arizona and Oklahoma make no exception for rape or incest, despite pleas from those in opposition decrying the ‘decency’ of those exceptions.”

“In recent weeks, Utah’s Republican Party threatened to take things a step further, announcing that it was considering changing its official stance on abortion to eliminate language that supported exceptions not only for rape or incest but also another commonly held exception to abortion bans: to ‘preserve the life of the mother.’”

However, amid controversy, the Louisiana bill to classify abortion as murder has been withdrawn for the time being, according to reporting by Jessica Kutz (https://truthout.org/arrticles/louisiana-bill-classifying-abortion-as-homicide-receives-backlash-from-the-right).

“The legislation’s singular sponsor, Rep. Danny McCormick, removed the bill, titled the Abolition of Abortion in Louisiana Act of 2022, from consideration for a House vote after a proposed amendment would have stripped the most extreme sections of the legislation, making it more akin to a trigger ban already on the books.

“It’s unclear what the future of the bill is. The amended version specifically says abortion seekers will not be criminalized by the law, but abortion providers could face 10 years in prison and up to a $100,000 fine for performing an abortion at any time during a pregnancy, starting at the moment of fertilization. Those penalties would increase if an abortion was performed after 15 weeks. The law also exempts instances where a pregnant person’s health is in jeopardy, and clarifies that birth control, including IUDs would remain legal.

“The original legislation including the possible homicide charges for abortion seekers passed out of a House committee with a 7-2 vote last Wednesday. Though it failed to move past that, experts said even that step was a marked shift in the abortion debate.

“The measure had received major backlash not just from abortion rights activists but also anti-abortion organizations and politicians, including the Louisiana Family Forum and Louisiana Right to Life. Governor John Bel Edwards, a Democrat who is Catholic and has historically supported anti-abortion legislation, came out forcefully against the original bill, writing in a statement, ‘To suggest that a woman would be jailed for an abortion is simply absurd.’”

Abortion Pills Stand to Become the Next Battleground in a Post-Roe America

Pam Belluck and Sheryl Gay Stolberg refer to how abortion pills are likely to become the next battleground in a Post-Roe America (https://nytimes.com/2022/05/05/health/abortion-pills-roe-v-wade.html).

Pam Belluck is a health and science writer whose honors include sharing a Pulitzer Prize and winning the Nellie Bly Award for Best Front Page Story. She is the author of Island Practice, a book about an unusual doctor.

Sheryl Gay Stolberg is a Washington Correspondent covering health policy. In more than two decades at The Times, she has also covered the White House, Congress and national politics. Previously, at The Los Angeles Times, she shared in two Pulitzer Prizes won by that newspaper’s Metro staff. 

Bottom of Form

“Medication abortion — a two-drug combination that can be taken at home or in any location and is authorized for use in the first 10 weeks of pregnancy — has become more and more prevalent and now accounts for more than half of recent abortions in the United States.” The two drugs are mifepristone and misoprostol.

“For portions of the pandemic, the F.D.A. temporarily lifted the in-person requirement, then permanently removed it in December.” In addition, the agency said pharmacies could begin dispensing the drugs if they met certain qualifications.

“The agency is in the process of hammering out those qualifications with the two manufacturers of the drug, and reproductive health organizations said that some national retail pharmacy chains have expressed interest in being able to dispense the medication in some states, at least by mail.

Interest in the pills for medication abortions will likely rise if there is a ban on abortion. Belluck and Stolberg quote Mary Ziegler, a legal scholar who has written widely on abortion. Ziegler says, “Given that most abortions are early and medication abortion is harder to trace and already kind of becoming the majority or preferred method, it’s going to be a big deal. It’s going to generate a lot of forthcoming legal conflicts because it’s just going to be a way that state borders are going to become less relevant.”

In December [2021], the Food and Drug Administration made access abortion medications “significantly easier by lifting the requirement that patients obtain the first of the two pills, mifepristone, by visiting an authorized clinic or doctor in person. Now, patients can have a consultation with a physician via video or phone or by filling out online forms, and then receive the pills by mail.

“But,” Belluck and Stolberg continue, “many conservative states have already begun passing laws to restrict medication abortion, including banning it earlier than 10 weeks’ gestation and requiring patients to visit providers in person despite F.D.A. rules. Nineteen states ban the use of telemedicine for abortion. This year, Americans United for Life, an anti-abortion advocacy group, listed laws against medication abortion as first among the organization’s ‘pressing priorities’ for 2022.

“‘In the last year, Arizona, Arkansas, Indiana, Montana, Ohio, Oklahoma, South Dakota and Texas have enacted state-level safeguards to stop mail-order abortion drugs, and the Tennessee Legislature recently sent such protections to Gov. Bill Lee,’ Mallory Carroll, an official with Susan B. Anthony List, an anti-abortion group, said. “In addition to creating health and safety standards, states are also increasing requirements for reporting complications from abortion drugs. We will be working with allies in additional states to tackle this growing public health threat.”

“Residents of states that would quickly ban all abortion methods if Roe were overturned — including Texas, Missouri, Utah and Tennessee — would be legally prohibited from having telemedicine abortion consultations from any location in their state, even if the doctor were located in a state with legal abortion. Such patients would have to travel to a state where an online, video or phone consultation is legal — the IP address of the computer or phone they were using would identify where they were located. Then, they would have to receive the pills by mail at an address in a state with legal abortion, even if it were a post office box or a hotel.

“Some patients are already doing this because they live in one of the states that ban the use of telemedicine for abortion. Some aspects of those laws are unclear, including whether patients who take the pills after returning to their home state are violating their state’s law.

“Several organizations, including Abortion on Demand and Hey Jane, now arrange telemedicine or online consultations and mail pills from one of two mail-order pharmacies that are currently authorized by the two mifepristone manufacturers to dispense that medication.

“‘But abortion opponents and states that outlaw abortion are likely to try to challenge or curtail the ability of patients to cross state lines to get the pills, legal experts said. There may be attempts by states that ban abortion to prosecute doctors and other health providers in states where abortion is legal, for example, or to try to block organizations or funds that provide financial help for patients to travel to other states,’ Professor Ziegler said.”

“States that support abortion rights are mobilizing to block such efforts. Legislation in California would provide financial assistance to patients traveling from other states to obtain abortions and increase the number of abortion providers. Connecticut just passed a bill that would prevent abortion providers from being extradited to other states, bar Connecticut authorities from cooperating with abortion investigations from a patient’s home state and allow Connecticut residents who are sued under another state’s abortion provision to countersue.”

“Because the F.D.A. has approved abortion pills as safe and effective and set forth a regimen by which they have to be dispensed, states are not allowed to do anything different, because federal law pre-empts or is supreme over state law,” said David Cohen, an expert in gender and constitutional law at Drexel University’s law school.

“But Lawrence Gostin, an expert in health law at Georgetown University, said there would also be a strong counterargument: that regulation of the medical profession is the province of states, which can therefore regulate what pharmacies prescribe.

“Reproductive health experts also predict that more patients will be ordering abortion pills from overseas, through websites like Aid Access — an international organization run by a physician that mails pills — a practice the F.D.A. has tried to stop.

“Professor Ziegler and others said it is hard for states or the federal government to stop or interdict the mailing of abortion pills because of the practical difficulties of tracking and identifying every such package.”

Concluding thoughts

America is under a number of internally generated threats to democracy. The anti-abortion movement is one of them. In this case, the anti-abortion movement that has used court challenges, protests, civil disobedience, and violence to overturn Roe v. Wade. It is advanced as well by the Republican Party, Trump, the majority of its Party’s electoral base, segments of the rich and corporate communities, conservative religious groups, and right-wing media.  

In the final analysis, the defense of the reproductive rights of women to obtain a legal abortion faces strong political headwinds. It is one of the highly partisan political battles that will determine whether America’s women will have reasonable control over their reproductive decisions or not. Normally, the outcome would rest on which side can most effectively educate and mobilize supporters and get them to act and vote. However, Republicans are doing their best to create electoral rules that will nullify the votes of the opposition.

So, in the final analysis, the battle over reproductive rights is tied up not only with legal arguments over the Constitution but also with the relative political power of the two major parties and their supporters

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