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Senate confirmation hearings reveal just how dangerous Brett Kavanaugh’s confirmation would be to reproductive autonomy.

Three days of Senate Judiciary Committee hearings on the nomination of Judge Brett Kavanaugh to replace retired Supreme Court Justice Anthony Kennedy didn’t just confirm that Kavanaugh would fulfill President Donald Trump’s promise to appoint a justice who would overturn Roe v. Wade. They revealed that Kavanaugh has dedicated a significant portion of his legal career to finding a path to do just that.

Even before the confirmation hearings began, it was clear that Kavanaugh poses a very real risk to reproductive rights, no matter how many times he told Sen. Susan Collins (R-ME) he planned to respect court precedent. His public comments praising former Supreme Court Chief Justice William Rehnquist’s dissenting opinion in Roe v. Wade are one great example. As I detailed here, these remarks were a very clear signal to anti-choice advocates that Kavanaugh would be a safe vote against abortion rights—because Rehnquist’s dissent in Roe rejects the constitutional right to privacy altogether.

Then there is Garza v. Hargan, wherein Kavanaugh argued vigorously for the government’s right to “refrain from facilitating” access to an abortion for an undocumented minor in its custody. First, he issued an order in the case that would have effectively pushed the pregnancy at issue too late to obtain an abortion under Texas law. Then, when that order was quickly overturned by his colleagues on the D.C. Circuit Court of Appeals, he issued a dissent in which he accused his colleagues of advancing “abortion on demand,” a refrain commonly shouted by anti-choice activists to describe legal abortion.

Kavanaugh’s own testimony over the course of the past three days has borne this out as well. Kavanaugh frequently talked about Roe as Supreme Court precedent and even “super-precedent,” with Planned Parenthood v. Casey’s affirmation of it.

That sounds good, right? Not so fast.

Precedent can be “unsettled” by the Supreme Court. Kavanaugh reminded us of that time and time again by invoking Brown v. Board of Education. Brown overruled Plessy v. Ferguson, the decision that had endorsed “separate but equal.” Kavanaugh praised Brown not just for correctly finding school segregation unconstitutional, but as one of the greatest moments in Supreme Court history.

Again, this sounds good, right?

It would be if anti-choice activists didn’t consistently use the Plessy and Brown cases as an analogy for their attempted pathway to overturn Roe. So consider every reference Kavanaugh made to Plessy and Brown a wink to those activists, likely intended to reassure the most radical conservatives that he knows how to get the job of overturning Roe done and is clever enough to disguise it before the broader public.

Republican Sens. Lindsey Graham (SC) and Ben Sasse (NE) helped Kavanaugh in this effort by talking about the litigation process and strategy it takes to overturn Supreme Court precedent. Sasse’s entire line of questioning to Kavanaugh was about undermining Roe, starting with the proposition that the Supreme Court can be wrong and moving on to how advocates spent decades building a record, in courts of law and public opinion, to provide the Court cover to ultimately overturn the Plessy decision. The subtext to these exchanges could not be more clear. Anti-choice forces see an opening with a Kavanaugh confirmation to end Roe—and they used their time with him on Wednesday and Thursday to get reassurances from him on that very point.

And Kavanaugh’s consistent reference to Planned Parenthood v. Casey as creating Roe‘s status as “super-precedent” shouldn’t be read as a sign he’s willing to rule in favor of abortion rights either. Yes, Caseyreaffirmed Roe. But it also granted the government broad powers to regulate abortion rights. Casey has done as much to undermine abortion rights as it did to reaffirm them by creating the “undue burden” framework. After all, parental notification provisions, waiting periods, mandated ultrasounds, and forced disclosures are all restrictions on abortion rights federal courts have found to be constitutional under the Casey undue burden framework. Kavanaugh’s consistent reference to Casey suggests he’d uphold restrictions under that framework as well. In that scenario, the Court doesn’t need to overturn Roe. It just needs to uphold enough restrictions on abortion rights to render them legal in name only.

As important as Kavanaugh mentioning Planned Parenthood v. Casey repeatedly is the fact that he failed to mention Whole Woman’s Health v. Hellerstedt at all. Whole Woman’s Health is the 2016 decision that struck as unconstitutional a series of Texas abortion regulations that were deemed an undue burden on abortion rights. In that case, the Supreme Court majority held that when it comes to evaluating undue burdens, courts must weigh the extent to which the restrictions in question actually serve the government’s stated interest in enacting them against the burden they impose. The decision is an important win for abortion rights—not in the least because it forces lawmakers to be able to support their rationale for restricting abortion rights with actual evidence.

By Thursday evening, Judge Kavanaugh had yet to discuss his views on Whole Woman’s Health. When Sen. Kamala Harris (D-CA) asked him if he thought the case was correctly decided, Kavanaugh wouldn’t answer the question.

He also called birth control an abortifacient when responding to a question from Sen. Ted Cruz (R-TX) about litigation challenging the birth control benefit in the Affordable Care Act, echoing another anti-choice talking point that dangerously conflates contraception with abortion.

Then there are Kavanaugh’s documents. The secrecy and lack of transparency around the record of his time in the Bush White House is unprecedented. The process for disclosing documents has been largely controlled by Bill Burck, who marked hundreds of thousands of pages of documents confidential. Democrats objected and finally leaked some of the documents Burck didn’t want the U.S. public to see. Among them were an email where Kavanaugh says that many legal scholars do not see Roe v. Wade as settled law and documents related to Kavanaugh’s shepherding radical Bush judicial nominees like William Pryor through the confirmation process. These nominees themselves have pledged to do all they can to overturn Roe.

So where does this leave us? Kavanaugh’s confirmation hearings are not quite over, and both the Judiciary Committee and the full Senate need to vote on his nomination. But absent some Republicans joining Democratic senators in opposition to Kavanaugh, his confirmation is all but guaranteed. That’s when the clock officially begins to tick on the challenge to Roe.

Source: https://rewire.news/article/2018/09/06/kavanaugh-confirms-nomination-abortion-rights-jeopardy/

The landmark abortion decision could be overturned within a year.

If Supreme Court nominee Brett Kavanaugh is confirmed, Roe v. Wade could be overturned in less than a year.

That’s because 13 abortion cases are already before circuit courts around the country, the last step before reaching the Supreme Court. Reproductive rights advocates say any one of them could provide an opportunity for a Kavanaugh Court to reconsider the right to an abortion set forth in Roe.

Before and during his confirmation hearings, Kavanaugh has been vague about his views on Roe and abortion rights. But advocates point to President Trump’s promise to appoint anti-abortion justices, as well as Kavanaugh’s opinion in a case involving a pregnant unauthorized immigrant minor, as evidence that he could be the deciding vote to restrict Americans’ reproductive rights. Kavanaugh would replace retiring Justice Anthony Kennedy, often a crucial swing vote on issues like abortion.

Because of Roe, states can’t ban abortion outright. Instead, legislatures have passed a number of measures in recent years that restrict access to the procedure — by imposing onerous and often medically unnecessary restrictions on providers, for example, or by banning particular abortion techniques. Abortion providers and others have challenged these laws in court, arguing that they violate Roe or the 1992 decision Planned Parenthood v. Casey, which states that laws may not place an “undue burden” on a patient’s right to an abortion.

Thirteen of these challenges have now reached federal courts of appeals, meaning they’re one step away from the Supreme Court. If the Court agrees to hear one of them — which could happen as early as this year — it could provide an opportunity for the justices to revisit the right to an abortion guaranteed in Roe.

Even with Kavanaugh replacing Kennedy, the Court might not fully overturn Roe. Many believeit’s more likely that the Court would weaken abortion protections by, for example, altering the “undue burden” standard set forth in Casey.

But such a decision could have nearly the same impact as eliminating Roe since it would allow states to effectively block abortion access by imposing ever more onerous restrictions — a strategy anti-abortion groups have already pursued to great effect in states like Mississippi. Even if the words “‘Roe v. Wade is now overruled’ don’t appear in an opinion, the Court can really harm women,” Julie Rikelman, the senior director for litigation at the Center for Reproductive Rights, told Vox.

 Photo by Win McNamee/Getty Images

Any of these cases could be the one that guts Roe

Planned Parenthood has identified the 13 cases below as potential challenges to Roe v. Wade. Each concerns a state or federal abortion restriction.

Reproductive rights advocates say that because of the complexities of each case, it’s impossible to tell which might make it to the Supreme Court first. And, of course, a new case could come up at any time.

But the court will be taking cases for the 2018-19 session through January, said Helene Krasnoff, vice president of public policy, litigation, and law for the Planned Parenthood Federation of America. If the court takes an abortion case this term, it would issue a decision by the summer of 2019. “This could become a reality very, very soon,” she said.

Louisiana

June Medical Services et al. v. James Caldwell

Abortion providers are challenging a 2014 Louisiana law that would require physicians providing abortions to have admitting privileges at a nearby hospital. Such laws do little to protect patients’ health, and are typically passed in an attempt to shut down abortion providers, who often have difficulty finding a hospital willing to grant them admitting privileges.

In 2016, the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that a similar law in Texas was unconstitutional, because it placed an undue burden on the right to access an abortion established in Roe. But a court minus Justice Anthony Kennedy, plus Brett Kavanaugh might make a different decision — and could use the case as an opportunity to revisit Roe.

Right now the case is awaiting a decision in the Fifth Circuit Court of Appeals.

Texas

Whole Woman’s Health et al. v. Ken Paxton et al.

In this case, providers are challenging a 2017 Texas law banning a second-trimester abortion procedure called dilation and evacuation, in which the cervix is dilated and the fetus removed by suction. Opponents of the law say that banning dilation and evacuation, the safest and most common method of abortion after 15 weeks’ gestation, would put women at risk and place an undue burden on their right to get an abortion.

The case is awaiting arguments in the Fifth Circuit Court of Appeals.

Kentucky

EMW Women’s Surgical Center et al. v. Andrew Beshear et al.

EMW Women’s Surgical Center, the only licensed abortion provider in Kentucky, is suing to block a 2017 state law that requires doctors to administer an ultrasound to pregnant patients prior to an abortion. Doctors are also required to show and describe the ultrasound to the patient, and to play the sound of the fetal heartbeat if it can be detected. Opponents of the law say it is medically unnecessary and could cause patients trauma, especially if they became pregnant as a result of sexual assault.

The case is waiting for a decision in the Sixth Circuit Court of Appeals.

Ohio

Preterm-Cleveland et al. v. Lance Himes et al.

Planned Parenthood affiliates and other providers are challenging a 2017 Ohio law that would ban abortion if a doctor has any reason to believe the fetus has Down syndrome. The law contains no exception for preserving the life or health of the mother, and opponents say it violates Roe by restricting abortion before a fetus is viable outside the womb.

Briefing in the case is ongoing in the Sixth Circuit Court of Appeals.

Indiana

Planned Parenthood of Indiana & Kentucky v. Commissioner of the Indiana State Department of Health et al.

Planned Parenthood of Indiana & Kentucky is suing to block a 2016 Indiana law that prohibits doctors from performing abortions if the patient is seeking the procedure because of the fetus’s sex, race, disability or potential diagnosis of disability. The law, signed by then-Gov. Mike Pence, also included other provisions such as a mandate that miscarried or aborted fetuses be buried or cremated, and was so restrictive that it disturbed even Republicans in the state Legislature.

Critics said that by banning abortion because of fetal abnormality, the law could keep patients from being honest with their doctors, or force them to carry dangerous pregnancies to term.

A district court blocked the law in 2017, and the Seventh Circuit Court of Appeals upheld the decision. But the state of Indiana could decide to appeal to the Supreme Court.

Planned Parenthood of Indiana & Kentucky et al. v. Commissioner of the Indiana State Department of Health et al.

In a separate challenge to the same Indiana law, Planned Parenthood argued that a provision requiring an 18-hour waiting period between a state-mandated ultrasound and the abortion procedure placed an undue burden on patients.

The state of Indiana has filed a petition for a rehearing of the case with the Seventh Circuit Court of Appeals.

Planned Parenthood of Indiana & Kentucky v. Adams et al.

Planned Parenthood is challenging a 2017 Indiana law governing parental consent for minors seeking abortions. Under the law, parents must show proof of their identity and relationship to the minor when providing consent, and the law would allow judges to notify the minor’s parents that she was seeking an abortion. Critics of parental consent laws, which are in effect in many states, argue that they can leave pregnant minors vulnerable to abuse. Opponents of the Indiana law in particular argue that requiring parental identification could block abortions for minors whose parents don’t have valid ID.

The case is awaiting a decision in the Seventh Circuit Court of Appeals.

Missouri

Comprehensive Health of Planned Parenthood Great Plains et al. v. Williams et al.

Planned Parenthood has challenged Missouri requirements that abortion providers have hospital admitting privileges and that abortion facilities conform to ambulatory surgical center (ASC) standards. According to the Guttmacher Institute, ambulatory surgery centers typically perform riskier procedures than abortion clinics, and laws applying ASC standards to abortion facilities are generally aimed at reducing abortion access, not improving patient care. Planned Parenthood filed suit to challenge the Missouri requirements after the Supreme Court found in Whole Woman’s Health v. Hellerstedt that similar requirements in Texas were unconstitutional.

The case is awaiting a decision in the Eighth Circuit Court of Appeals.

Arkansas

Frederick W. Hopkins v. Larry Jegley et al.

A provider is challenging four abortion restrictions passed in Arkansas in 2017, including a ban on dilation and evacuation and a measure requiring doctors to request a patient’s “entire pregnancy history” to be sure she is not seeking a sex-selective abortion.

The case is awaiting argument in the Eighth Circuit.

Planned Parenthood Arkansas & Eastern Oklahoma et al. v. Larry Jegley et al.

Planned Parenthood has challenged a 2015 Arkansas law requiring that physicians dispensing medication abortion have a contract with another physician who has hospital admitting privileges. A district court found that the requirement had little benefit for patients, since Planned Parenthood already had a thorough protocol in place to administer medication abortions and treat any complications that arose. The state of Arkansas appealed the decision.

The case is awaiting briefing and argument in the Eighth Circuit.

Alabama

Reproductive Health Services v. Marshall

An abortion provider is suing to block a 2014 Alabama law changing the process by which minors can receive an exemption from parental notification requirements. Most state parental notification laws allow minors to forego parental notification of an abortion if they can get permission from a judge, a process known as judicial bypass.

The Alabama law would make the process of seeking such a bypass much more involved: it would require the judge to notify the county district attorney’s office, appoint a legal guardian for the fetus, and, in some cases, allow the minor’s parents to be part of bypass proceedings. The guardian for the fetus could cross-examine the pregnant minor, call witnesses to testify against her, and appeal the judge’s decision.

“It is terrifying to minors who seek a bypass that the decision about whether she can have an abortion — one that will literally change the course of her life — is in the hands of a stranger,” the lawsuit states. “This fear will be significantly increased due to the Act’s provisions.”

The case is currently awaiting a decision in the Eleventh Circuit Court of Appeals.

West Alabama Women’s Center v. Miller

West Alabama Women’s Center, an abortion provider in Tuscaloosa, Ala., is challenging a 2016 ban on dilation and evacuation.

On August 22, the Eleventh Circuit Court of Appeals sided with the district court, which had ruled against the law. The state of Alabama can now decide whether to appeal the case to the Supreme Court.

Washington, DC

Rochelle Garza et al. v. Alex Azar, II et al.

The ACLU has filed a class-action suit on behalf of pregnant, unauthorized immigrant minors in the custody of the Office of Refugee Resettlement, part of the Department of Health and Human Services. The plaintiffs are seeking to block what they say is an ORR policy of denying minors access to abortion services.

The suit comes after the cases of Jane Doe and other pregnant minors last year, who were initially prohibited from getting abortions while in ORR care. Last year, in a dissenting opinionin Garza v. Hargan, Brett Kavanaugh argued that, rather than allowing Doe to get an abortion while under ORR care, the government would be within its rights to make her wait until she could be released to an immigration sponsor. It’s the only abortion case on which Kavanaugh has ruled.

Oral arguments in the DC Circuit Court of Appeals are scheduled for September 26.

Source: https://www.vox.com/2018/9/7/17818458/brett-kavanaugh-supreme-court-nominee-abortion-confirmation

The “fetal burial” law, passed in 2017 by the Texas legislature, was part of expansive anti-choice restrictions signed into law by Republican Gov. Greg Abbott.

A Texas Republican-backed law forcing health-care providers to bury fetal tissue from an abortion or miscarriage could be headed to the Fifth U.S. Circuit Court of Appeals after a judge on Wednesday ruled against the law favored by anti-choice activists.

U.S. District Judge David Ezra ruled on Wednesday that the law created “substantial obstacles” for people seeking abortion services and abortion clinics, while providing “absolutely no health benefit in return,” the Houston Chroniclereported.

The “fetal burial” law, passed in 2017 by the Republican-held Texas legislature, was part of expansive anti-choice restrictionssigned into law by Gov. Greg Abbott (R). The measures were considered a priority for Texas Right to Life, the state’s powerful anti-choice lobby. The anti-choice omnibus law also targeted the common dilation and evacuation (D and E) abortion procedure.

The Center for Reproductive Rights and the Lawyering Project on behalf of Whole Woman’s Health and Whole Woman’s Health Alliance challenged the Texas law in court.

“While Texas lawmakers have shown they will stop at nothing to rob women of their constitutional right to safe and legal abortion, the courts once again recognized these sham laws for what they are,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “We have repeatedly taken Texas to court, and we will continue to challenge each of the state’s unconstitutional attempts to shame women, tie the hands of healthcare providers, and restrict access to safe and legal abortion.”

Forcing people to bury fetal remains could add up to $2,000 to the cost of abortion care, according to the Funeral Consumers Alliance of Texas, as the Austin Chronicle reported.

“Today’s ruling is a victory for all Texan women and their right to access safe, legal abortion with dignity,” Amy Hagstrom Miller, founder and president of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement on Wednesday’s ruling. “Make no mistake, these restrictions were designed to shame and stigmatize patients and health care providers.”

A federal judge in January 2017 blocked enforcement of the so-called fetal burial provision after it was introduced by state officials as a rule, before lawmakers took up the issue. Judge Sam Sparks deemed the anti-choice measure an “undue burden” on access to abortion care. “It seems unlikely DSHS’s professed purpose is a valid state interest and not a pretext for restricting abortion access,” Sparks wrote in his decision.

A federal district court in January 2018 again blocked the measure from taking effect.

Source: https://rewire.news/article/2018/09/05/judge-texas-cant-force-people-to-bury-fetal-remains/

The Pigpen-style swirl of crime around the president who nominated Brett Kavanaugh to the Supreme Court is extraordinary. Still, there is one very standard aspect of the Kavanaugh nomination: the obfuscating code words around abortion. The judicial nominees of Republican presidents in particular have historically said as little as possible about abortion in their hearings, the better not to awaken a public that to this day is overwhelmingly supportive of Roe v. Wade. “Do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade?… [M]y answer to you is that I do not,” Clarence Thomas solemnly declared in his own hearing. Nine months later, as a justice, he joined an opinion stating, “Roe was plainly wrong.”

Candidate Donald Trump broke from the euphemisms to claim that Roe’s demise “will happen automatically in my opinion because I’m putting pro-life justices on the Court.” And when Kavanaugh’s name was first floated to replace retired Justice Anthony Kennedy, conservative insiders publicly reassured their own nervous ranks about his anti-abortion bona fides. “On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh,” wrote one former clerk, while a conservative attorney offered, “There is no reason to conclude that Kavanaugh would support Roe and Casey when presented with the question as a Supreme Court justice.” The moment Trump actually named Kavanaugh, however, the gaslighting of abortion supporters began: People who dared worry about the future of the procedure were “scaremongers”consumed by “hysteria” — after all, Kavanaugh was such a stand-up guy he’d chosen female clerks! People, it’s all on the internet; we can read.

Nonetheless, Kavanaugh’s hearings will be full of doublespeak. For help reading between the lines, consult the below.

“Abortion on demand.”

Thrown around by the right — including Kavanaugh, who tellingly used it three times in his one major abortion opinion — to denote women capriciously making decisions for themselves.

“Balls and strikes.”

By his own account, Brett Kavanaugh racked up tens of thousands of dollars of debt on baseball tickets, so perhaps he’ll revert to Chief Justice John Roberts’s aw-shucks mantra in his 2005 confirmation hearings: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” In other words, he promised to uphold the law and the Constitution, not impose policy preferences, like making abortion illegal. Of course, cases usually get to the Supreme Court because other judges have reasonably disagreed on what the law or Constitution means.

“Between a woman and her doctor” and “safe, legal, and rare.”

Some Democrats still use these vintage pro-choice talking points, but they grate on a new generation of abortion rights activists. “Between a woman …” implicitly defers to a white-coated professional over a pregnant person’s reproductive autonomy and doesn’t acknowledge that trans people have abortions. “Safe and legal” still has lots of fans on the left, but “rare,” as Tracy Weitz put it, “separates ‘good’ abortions from ‘bad’ abortions.’” In 2012, Democrats took the Clintonian slogan out of their platform.

Casey (or Planned Parenthood of Southeastern Pennsylvania v. Casey).

This unloved legal compromise, decided by the Supreme Court in 1992, declined to overturn Roe but said states could erect all kinds of roadblocks to prevent women from exercising that right — as long as the obstacles don’t present a so-called “undue burden.” The legal haggling ever since has been over exactly which burdens are undue. You can thank retiring Justice Anthony Kennedy for this unwieldy creation that at least kept abortion legal for the past 25 years. And then you can thank him for making way for the man who may undo that.

“The democratic process” or “It should go to the states.”

This is what you’re likely to hear from Republicans, and what’s not to like about some good old-fashioned democracy? Well, previously in the democratic process and states’ rights: bans on interracial marriage and other Jim Crow–era restrictions. “The democratic process” would likely mean the loss of abortion access in 22 states, but regardless, these arguments purporting to be about process are really about achieving certain outcomes. Congressional Republicans weren’t exactly respecting states’ rights when they introduced federal personhood bills, prohibitions on race- and sex-selective abortion, or legislation to forbid abortion at 20 weeks or when the fetal heartbeat can be detected. In fact, the GOP platform includes support for a human life amendment that would outlaw all abortion everywhere.

“Dismemberment abortion,” “partial-birth abortion,” and “fetal pain.”

These are political, not medical, concepts cooked up by the anti-abortion movement to refocus the debate on the fetus and on potentially uncomfortable details. In 1995, when the National Right to Life Committee heard about a doctor performing abortions through intact dilation and extraction, they named it “partial-birth abortion” to “foster a growing opposition to abortion,” and the Supreme Court signed off on banning it. The Court has yet to weigh in on laws passed in 17 states blocking abortion after about 20 weeks on the medically unproven theory that the fetus feels pain at that time, or on prohibitions against “dismemberment abortion” —another concocted term for a common and safe abortion method — that was passed in nine states.

Doe v. Bolton (1973).

You don’t hear much about this lesser-known companion case to Roe v. Wade, decided at the same time, but it’s GOP code for “women having abortions willy-nilly.” In this case, brought on behalf of a Georgia woman, seven justices ruled that abortion could be banned at viability as long as there was an exception for a woman’s health, defined broadly by a physician as “all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient.” Doe v. Bolton is why Paul Ryan once sneered, “The health exception is a loophole wide enough to drive a Mack truck through it,” and John McCain, when debating the issue, put derisive air quotes around the word “health.”

Dred Scott v. Sanford (1857) and Plessy v. Ferguson (1896).

These irrefutably wrong Supreme Court decisions upholding slavery and segregation are evoked by conservatives in the abortion debate to (1) compare abortion to slavery, and (2) point out that some Supreme Court precedents are actually bad. When George W. Bush brought up Dred Scott in the 2004 presidential debate, one Evangelical leader called it “a poignant moment, a very special gourmet filet mignon dinner.”

Garza v. Hargan or Garza v. Azar (2017).

The rare abortion case on which Kavanaugh has ruled. The Trump administration unsuccessfully tried to bar a raped migrant teenager from leaving detention to have an abortion, even though she’d jumped through all the legal hoops. Some conservatives protested that Kavanaugh didn’t go far enough by not joining another dissent that claimed that legally, an undocumented immigrant is not a person. Kavanaugh’s own dissent would have run out the clock by looking for a sponsor, a process that had already delayed the young woman’s abortion by seven weeks and threatened to push her pregnancy past the legal limit. The biggest tell of all: Kavanaugh deferred to rulings keeping abortion legal but wrote, “As a lower court, our job is to follow the law as it is, not as we might wish it to be.” On the Supreme Court, on the other hand …

“Even Ruth Bader Ginsburg hates Roe v. Wade” and “the Ginsburg rule.”

Yes, Ginsburg has often critiqued Roe, but that’s because she preferred a different strategy (incrementally striking down abortion bans rather than all at once); legal basis (women’s equal citizenship rather than right to privacy); language (maybe a tiny bit less patronizing to women and deferential to doctors); and test case (specifically her own client, a nurse the military was trying to force to abort). So what? It doesn’t make her any less an unbending supporter of reproductive freedom, and it’s irrelevant because Casey, which she likes a bit better, is the standard we now have. As for the so-called Ginsburg rule Senate Republicans invoke to say Kavanaugh doesn’t have to say shit about shit: While Ginsburg did say in her 1993 hearing that she didn’t want to speculate on future cases, this is what she also said in those same hearings: “[Abortion] is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.” By all means, let’s have Kavanaugh follow the Ginsburg rule.

Griswold v. Connecticut (1965).

This opinion struck down a ban on contraception for violating a “right to marital privacy,” forming some of the basis for Roe. Asking about it has been used as a proxy for asking about Roe; those who express reservations about Griswold probably feel the same about Roe, in other words.

“Original public meaning,” and “originalism.”

This is the conservative dictum that judges should stick to the framers’ intentions, popularized by the late Justice Antonin Scalia. Taken to its strictest conclusion, originalism could make it legal to discriminate against women and LGBT people, legalize segregation — and of course ban abortion. Some liberals argue that the framers intentionally used broad language to encourage interpretation over time.

“Rational basis.”

While Casey said states could only restrict abortion as long as it didn’t put an “undue burden” on a woman’s access, “rational basis” would be an even lower bar, one that the conservative Fifth Circuit tried to slip through in Whole Woman’s Health only to be slapped down by the Supreme Court. Under rational basis, almost any restriction on abortion would be allowed to stand without much scrutiny — say, requiring all medical equipment to be gold-plated — as long as it sounded reasonable.

Roe v. Wade (1973).

Only two justices dissented from the opinion that struck down all state abortion bans, and one was Justice William Rehnquist, who in 2017 Brett Kavanaugh called his “first judicial hero.”

“Settled law” or “precedent” or “stare decisis.”

When Kavanaugh told Maine senator Susan Collins that Roe is “settled law,” she was satisfied that he wouldn’t go after the fundamental right to abortion. But mouthing the right words about how the Court is supposed to avoid sudden moves doesn’t mean long-standing decisions can’t be toppled. Chief Justice John Roberts, who called Roe “settled as a precedent of the court,” has never voted against a restriction on abortion. Plus, he’s voted to strike down plenty of long-standing precedents with regard to voting rights, union rules, and money in politics.

Stenberg v. Carhart (2000) and Gonzales v. Carhart(2007).

With the help of Justice Sandra Day O’Connor, the court struck down Nebraska’s “partial-birth abortion” law because it had no exception for the health of the woman. But when she retired and was replaced by Justice Samuel Alito, the court waved through a federal version. So much for precedent.

Whole Woman’s Health v. Hellerstedt (2016).

In the Court’s last big abortion case, Justice Anthony Kennedy voted with the four Democratic appointees in ruling that states had to have a really good reason for regulating abortion clinics out of business. If the Court would overturn just this single, very recent so-called precedent, the last clinic in Mississippi would be forced to shut down, and quite possibly nearly three-quarters of the clinics in Texas — to name just two states where abortion access would be severely curtailed.

Source: https://www.thecut.com/2018/08/brett-kavanaugh-supreme-court-abortion.html

In both being able to choose it and in having it, my abortion gave me the power to determine my life course for myself.

Judge Brett Kavanaugh’s record strongly suggests he would downgrade the right to abortion. Alex Wong / Getty

Summer as a 19-year-old was wonderful. My life was on the track I wanted. I had a paid internship with a prestigious Wall Street firm, a year of an Ivy League education under my belt, and a clear path ahead for wherever I decided to take my career. There was nothing but opportunity on my horizon, until an unintended pregnancy threatened to curb my aspirations.

However, within a week or two of missing my period, I walked into Planned Parenthood, cash in hand, for a medication abortion. Just like that, my life was back on track. I finished my internship, completed my college education, went on to law school, and became a constitutional lawyer.

My situation was ideal, but it was also rare. I lived in New York City, where there were accessible abortion providers; I had no children to arrange care for; I was able to take the time that I needed off my internship; and I could pay up-front for my abortion. Most people in the United States don’t live close to an abortion provider they trust, don’t have paid time off work, or can’t afford the cost of an abortion. Too often, access to abortion care depends on your ZIP code. And instead of making abortion more accessible, President Donald Trump has promised to end federal constitutional protection for abortion and to punish people who seek such health care.

While a candidate for President, Trump vowed to appoint “pro-life” judges to the Supreme Court so that Roe v. Wade, the landmark decision recognizing our fundamental right to abortion, would be overturned “automatically.” And now he has nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on our nation’s highest court, with hearings scheduled to begin next week.

Justice Kennedy, though he often upheld restrictions that make accessing abortion difficult, was a reliable vote to ensure that Roe v. Wade still had tangible meaning in the United States. In 1992, Kennedy voted to reaffirm the core holding of Roe in Planned Parenthood v. Casey; he did so again, in Whole Woman’s Health v. Hellerstedt, in 2016. With Justice Kennedy’s retirement, the Supreme Court is split down the middle, with four conservative justices hostile to Roe and the protection of individual liberty, dignity, and equality. As a result, Roe is at risk, and Brett Kavanaugh could tip the scales against it.

Judge Kavanaugh’s record suggests he may have passed Trump’s litmus test for a Supreme Court nomination quite easily. As a judge, he tried to stop a detained immigrant minor from accessing the abortion care she wanted. He denounced the court’s ruling, which vindicated her right to do so, as a “radical” one that guaranteed “abortion on demand.” In a 2017 speech, he praised Chief Justice William Rehnquist’s dissent in Roe and his decades-long mission to overturn the decision. And just last week during his interview with Republican Sen. Susan Collins of Maine, he agreed with Chief Justice John Roberts’ view that Roe is “entitled to respect under principles of stare decisis,” or settled law—the same Chief Justice Roberts who in 2007 and 2016 voted to limit access to abortion.

Should Judge Kavanaugh become Justice Kavanaugh, he will have the power to continue Chief Justice Rehnquist’s work and fulfill Trump’s pledge to overturn Roe v. Wade and leave “the states [with] . . . the power to legislate with regard to this matter,” as Judge Kavanaugh said. The problem is, most states are already seeking to roll back the promise of Roe. In the first quarter of 2018 alone, 37 states introduced 308new abortion restrictions, including pre-viability bans, procedure bans, increased waiting periods, and restrictive requirements placed on abortion providers that are not required of other health-care professionals.

But what does that really mean for people like you and me?

It means that if legislative attacks on Roe stand, the fundamental right to abortion could be stripped away from millions of people, with the impact falling hardest on low-income people, young people, people of color, and immigrants. Clinics will continue to close, getting an abortion will take even longer and thus be more expensive, and more people will be forced into carrying unwanted pregnancies, increasing their chances of falling into poverty and being the victim of domestic violence.

According to a report by the Center for Reproductive Rights, if the Supreme Court were to go so far as to overturn Roe, 22 states could soon thereafter ban abortion outright, with four of them outlawing abortion automatically upon the Court’s decision. An additional 11 states, with their current legislative composition, would likely pass legislation to ban the procedure. At least 37 million people of reproductive age living in those states would be stripped of their liberty and may be forced to take illegal measures. For history has taught us illegal abortion does not lead to less abortion—it leads to unsafe, deadly abortion.

This is not how the Constitution is meant to work. A fundamental, enumerated right like liberty—which includes bodily integrity, autonomy, and basic dignity, and is essential to women’s equal citizenship stature—is not meant to be enjoyed in only certain pockets of our country or only by those who can afford to travel to a place where it’s recognized. Our supreme law must apply to each of us equally.

Judge Kavanaugh’s record strongly suggests he would downgrade the right to abortion. In his dangerous view, it is a part of the “free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” But history shows that the framers of the 14th Amendment wrote that amendment with sweeping language to provide broad protections for substantive liberty—not limited to rights enumerated elsewhere in the Constitution—to secure equal citizenship status for men and women of all races and classes alike. During the debates on the amendment, the framers lambasted the treatment of enslaved families. They decried women being forced to bear children, couples being denied the right to marry and often separated, and children being taken from their parents. To remedy this horror, they wrote the 14th Amendment to guarantee basic rights of personal liberty and bodily integrity to all, including if, when, and how to have a family. As Justice Ruth Bader Ginsburg once wrote, the 14th Amendment guarantees “a woman’s autonomy to determine her life course, and thus to enjoy equal citizenship stature.”

In both being able to choose it and in having it, my abortion gave me what Justice Ginsburg described and so many cis men take for granted: the power to determine my life course for myself. I am where I am now because of decisions I made and support provided by my loved ones. I cannot imagine where I would be now had I been forced to carry an unwanted pregnancy to term—if I would have been able to survive childbirth as a Black woman in the United States at all. It is the unimaginable that fuels my concerns about Judge Kavanaugh as a potential Supreme Court justice.

With the constitutional right to abortion on the line, Judge Kavanaugh should not be allowed to evade questions about our fundamental rights during his confirmation hearing next week like he did before, during his nomination hearing to the D.C. Circuit in 2006. The Senate must only confirm a justice who affirmatively declares that they believe the Constitution protects individual liberty and the right of all people to make personal decisions about their bodies and personal relationships—including the right to have an abortion.

Source: https://rewire.news/article/2018/08/29/my-abortion-kept-my-life-on-track-but-with-kavanaugh-on-the-court-millions-could-be-denied-that-choice/

The Massachusetts Democrat vying in Tuesday’s primary to represent the state’s only district that’s majority people of color doesn’t believe there’s a place in the Democratic party for people who vote against abortion rights.

“It is my fundamental belief that the people closest to the pain, should be the closest to the power.”

That’s how Boston City Councilor Ayanna Pressley explained her governing principles in an August campaign video that shows her riding the city bus from Cambridge to Roxbury.

If she’s successful in Tuesday’s primary, she’ll oust incumbent Democratic Rep. Mike Capuano from a U.S. Congressional seat he’s held in Massachusetts for nearly two decades. Capuano, who has served over ten terms in the U.S. House of Representatives, represents Massachusetts’ seventh Congressional district—the state’s only district where the majority of residents are people of color.

“The idea that Democrats must choose whether we are the party of working class white voters or the party that lifts up people of color is a dangerous, false choice,” Pressley told Rewire.News in an email.

With endorsements from the Boston Globe, state Attorney General Maura Healey, progressive groups such as Democracy for America, and Alexandria Ocasio-Cortez, the 28-year old democratic socialist who unseated incumbent Rep. Joe Crowley in New York’s 14th District Congressional Democratic primary, many wonder if Pressley could pull off the next major upset of the 2018 election season.

Pressley became the first woman of color to win a seat on the Boston City Council in 2009. In her first year, she formed the council’s Committee on Healthy Women, Families, and Communities, which addresses issues such as domestic violence and child abuse. She has developed “a comprehensive sexual education and health curriculum … which was successfully adopted as a permanent part of the Boston Public Schools’ wellness policy,” and partnered with a racial justice organization to “convene focus groups in evidence based research to reform school disciplinary policies that contribute to the school to prison pipeline for black and latina girls,” according to her campaign site.

In 2015, Pressley won EMILY’s List’s “Gabrielle Giffords Rising Star” award, which honors state and local officeholders the organization describes as having a “commitment to community, dedication to women and families, and determination and civility.” In her acceptance speech, Pressley spoke of her historic election to Boston’s City Council and how her platform centered progressive policies and advocacy for women and girls.

EMILY’s List hasn’t weighed in on Pressley’s race this year, because, according to the New York Times, the organization has a policy of staying out of primaries involving challengers to Democratic incumbents. Capuano has the support of a number of high-profile members of the House, including Reps. John Lewis (D-GA) and Maxine Waters (D-CA).

Speaking with Elle in an interview published Wednesday, Pressley said her campaign may make some people uncomfortable. “I know our [congressional] campaign is one that is disruptive and makes a lot of people uncomfortable in a dark blue district where we don’t primary Democrats, but I think we are in different times. These are times that require bold activist leadership and a reliable vote,” she said.

Pressley is running on what her campaign calls an “Equity Agenda,” which recognizes how inequities in her district “are the legacy of decades of policies that have hardened systemic racism, increased income inequality, and advantaged the affluent.” She declared her candidacy because “we desperately need inclusive, transformative leadership at this pivotal moment … Activism is no longer an option, but is the expectation of our generation.”

Her agenda tackles ten topics her policies will focus on: public health, economic development, the environment, immigration, issues disproportionately impacting women and girls, transportation, violence and trauma, education, housing, and criminal justice.

Pressley, like many progressive Democrats running in primaries this year, supports passing Medicare-for-All in Congress, which she believes “will meaningfully address disparities in access to health care coverage.” Her health platform addresses both maternal health and reproductive health care. She says she would “work to expand access to alternative birthing options, including licensure for doulas, standards for midwives, improvement in postpartum mental health services, resources to reduce disparities in breastfeeding, and the consistent coverage of holistic care by public and private insurance plans.”

Pressley supports the repeal of the discriminatory Hyde Amendment, which bans federal funds from being used for most abortions; eliminating the Hyde Amendment was included in the 2016 national Democratic platform. The anti-choice restriction “disproportionately impacts low-income women, women of color, immigrants, and young people who rely on Medicaid for their healthcare coverage,” Pressley said.

In an email to Rewire.News, Pressley said that if elected she would “lead a movement and build a coalition to fight to repeal this amendment.”

“With a growing coalition of true progressives in the House—led by progressive women—I will not just vote the right way, I will be an activist leader,” she said. “In the same way that organizers and activists saved the Affordable Care Act by organizing, protesting and demanding action, we must harness and channel this progressive energy to organize and repeal this amendment.”

She also vows on her website to co-sponsor Rep. Barbara Lee’s (D-CA) Real Education for Healthy Youth Act as part of her support for comprehensive sexual education. Pressley’s platform says she would fight the Trump administration’s efforts to defund the Teen Pregnancy Prevention Program (TPP) and protect the Title X federal family planning program.

When asked about the inclusion of reproductive rights under the banner of health care in her platform, Pressley told Rewire.News by email that “Reproductive freedom is a basic human right. Full stop.”

“Equity is at the center of my record and agenda for the 7th District—and while my website lists reproductive rights under the healthcare and public health section, it very well could live under my agenda for economic development, for women and girls or for education,” said Pressley. “That’s because for women, reproductive freedom is not only a healthcare issue, but an economic issue and certainly an issue of civil rights.”

Capuano also supports universal health care and co-sponsored the 2017 Expanded & Improved Medicare For All Act. Reproductive rights are not included on his campaign platform under the banner of health care, but the topic is mentioned in a section titled “Positively Impacting Women’s Lives.”

“Mike’s record in Congress reflects the seriousness with which he protects reproductive freedom,” reads his campaign site. “He has always upheld a woman’s right to choose and her right to make her own decisions about health care.” It points to his 100 percent Congressional record ratings with pro-choice groups such as the Planned Parenthood Action Fund and NARAL Pro-Choice America.

Capuano in an interview with the Boston Globe expressed his opposition to the Hyde Amendment. “Capuano said he is an ardent opponent of that law …. Capuano’s campaign made Representative Rosa DeLauro, a Connecticut Democrat and staunch women’s rights advocate, available to vouch for Capuano on the issue,” the publication reported. “She called him a ‘stalwart supporter’ of abortion rights who vigorously opposes the Hyde Amendment.”

He is listed as a co-sponsor of the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act of 2017, which would end the Hyde amendment if passed.

Abortion rights have come up as a point of contention between Capuano and Pressley. As the New York Times reported, Pressley brought up the topic during a recent debate in which she referenced a vote by Capuano for health care reform though it included the anti-choice Stupak Amendment, which was meant to bar the Affordable Care Act’s tax credits from subsidizing health insurance plans that cover abortion care.

“After the debate, [Capuano’s] staff produced documentation that Mr. Capuano had voted against both the Stupak Amendment and the Hyde Amendment,” the Times reported. “At the same time, Ms. Pressley’s staff documented that Mr. Capuano had later supported the landmark health care bill even though it included the Stupak Amendment.”

Though Capuano has a pro-choice voting record, he has opposed a Democratic Party litmus test on abortion rights. “That’s crazy, that’s nuts,” he told the Boston Herald Radio’s “Morning Meeting” in August 2017. “I’m as pro-choice as anybody,” he said. “But again that’s a classic issue. It’s very emotional, very hard to debate, but at the same time I respect people who stand up to say, ‘I’m pro-life.’ I don’t agree with them, and I’ll probably vote against their issues most of the time … but I respect their clarity of vision. And I somewhat envy that to some degree.”

“Democrats should be welcoming to anyone who shares our general values,” he continued, noting that he would support a Democratic candidate who opposes abortion rights if he thought they were running in a district that supported those views. “I have a thousand things on the agenda that are critically important, and we need to move forward,” Capuano said.

Pressley told Rewire.News that “a Democrat who will vote against choice does not have a place in the party.”

“A woman’s right to control her own body is not a political calculation and it is not a bargaining chip—it is a basic human right and a central tenet of our party,” she said. “I believe in expanding our electorate and bringing in people with diverse views, but I will never compromise on upholding basic human rights and equality for women. I understand that there are Democrats, who for personal or faith reasons, are personally opposed to abortion, and I respect their personal views, as long it doesn’t result in policy that infringes on women’s rights.”

“Unlike my opponent, I am opposed to the Democratic Party investing resources into electing candidates who will not take a firm stand and support women’s rights to access legal and safe abortion,” Pressley continued.

Capuano’s campaign did not directly answer questions from Rewire.News about how his position on reproductive rights differs from Pressley’s or whether he stands by his comments about anti-choice Democrats.

According to the New York Times, the MA-07 primary is viewed by some as a “a proxy fight for the future of the party.”

When asked whether the candidate agreed with that characterization, Audrey Coulter, Capuano’s communications director, told Rewire.News in a statement that “Mike believes we are in the fight of our lives against Donald Trump’s destructive policies. We need to keep Mike on the front lines of that fight taking on Trump for the people of the 7th district.” She added that Capuano has been “a tireless progressive champion for working families, immigrants, communities of color, seniors and kids, in the fights critical to protecting our most fundamental values. That’s what he does. That’s who he is.”

Pressley, however, suggested that the race was about more than that. It “is part of a larger fight for active, unapologetic progressive values that will strengthen the Democratic Party and strengthen our communities across the country,” she said.

“As Democrats, we must be about more than simply opposing Donald Trump. As important as it is to resist, it is equally important to passionately move forward,” said Pressley. “The entrenched inequalities and disparities are growing worse under this President, but they existed long before he arrived.”

Several student leaders said some of the fiercest critics advocating against the bill behind closed doors have been administrators within the University of California (UC) system.

The California State Assembly passed a bill Wednesday requiring all public college campuses in the state to provide access to medication abortions starting in 2022.

The measure, SB 320, was introduced in February 2017 by state Sen. Connie M. Leyva (D-Inland Empire) and passed the state senate in January 2018. Now that that bill has been passed in both chambers, it will go to the desk of California Gov. Jerry Brown (D).

Medication abortion, often referred to as the abortion pill, is a nonsurgical procedure in which pregnancy is terminated through the use two drugs. While conservative critics say the bill “demands campuses hand out abortion pills,” the legislation would not mandate students receive the pills but instead provide it as an option.

Student leaders said some of the fiercest critics advocating against the bill behind closed doors have been administrators within the University of California (UC) system, which contains campuses such as UC Berkeley, UCLA, and UC San Diego. Those campus officials, however, have not taken a public stance against the bill.

“UC has been doing a lot behind the scenes to actively to work against the bill. They haven’t been very forthcoming about it, they haven’t taken [a] position against it, but they’ve been doing things that [made] it very hard for it to pass,” UC Student Association President Caroline Siegel-Singh said in an interview with Rewire.News. “Implementation of this would not be a huge endeavor.”

To illustrate her point, Siegel-Singh said her campus, UC San Diego, offers access to the procedure across the street at one of the university’s community medical centers, but not through student health services on the campus. “We’re just moving it a few feet closer to campus,” she said.

Siegel-Singh said that as recently as this week, UC administrators told legislators implementation would be too expensive, citing what she called wildly inflated numbers that have no basis in analysis done by advocacy groups.

A state Assembly Appropriations Committee analysis notes that the bill will not rely on taxpayer funding. In order to supplement this, the Women’s Foundation of California, Tara Health Foundation, and several private donors are set to create a grant of $200,000 for each campus to assist with training and purchase equipment and an additional $200,000 in grants for the creation of new billing systems and 24-hour medical advice lines. The analysis notes that the UC and California State University (the state’s other largest public university system) are concerned about the cost of implementation.

“UC agrees with Senator Leyva that students should have access to affordable and convenient reproductive health care,” said Claire Doan, UC Office of the President (UCOP) director of media relations in a statement to Rewire.News. “However, as we have made clear to lawmakers, we are concerned that SB 320 does not provide adequate funding to support UC’s student health centers for medication abortion services on site.”

Rewire.News obtained UCOP’s fiscal analysis of SB 320. The analysis specifies that UC will only support a cost-neutral bill, one that doesn’t increase student fees or increase the university’s state general fund budget, and argues that UC already provides enough access to reproductive care services.

“It just seems like their hesitation is to not deal with the political pushback, due to the politically controversial nature of abortion,” Adiba Khan, the former co-director of Students United for Reproductive Justice (SURJ) at UC Berkeley, told Rewire.News. “It’s easier for them not to provide it.”

In California, the push for access to medication abortion on college campuses is often traced back to SURJ, a student organization at UC Berkeley, which started pushing for more access to health care on campus in 2016. Although their advocacy efforts on campus resulted in significant pushback and little administrative support, SURJ continued to advocate for more inclusive health-care services on campus, eventually focusing on advocacy for SB 320.

“It made no sense to us that something as simple as medication abortion wouldn’t be provided on campus when other reproductive and sexual health services are available,” Khan told Rewire.News in 2017. “Our medical insurance covers abortion, and there are trained providers already there at the Tang Center [Berkeley’s student health center], so there’s no reason not to make the medication available—other than to avoid controversy on campus.”

Khan, who graduated this year, is a co-founder of SURJ.

Along with several others, Khan helped legislators write SB 320. “If the bill does become a law, my work will be over,” she said. Khan believes that if Brown signs the bill, student leaders like Siegel-Singh and others around the state will continue to advocate for expanded access to health-care options on university campuses. Even so, Khan expects a slow and cumbersome implementation process.

“They do have until 2022 [to implement the measure] and I suspect that there will be some UC’s that will be more receptive .… And I suspect some of them will wait a while,” Khan said. “And so that’s why we have a solid base of students—to make sure that they can keep in contact with their administration and put pressure to get ready as soon as possible.”

During his 2010 re-election campaign, Brown called himself “an uncompromising champion of a woman’s right to choose.” The bill now goes to his desk, though advocates are unsure of what the outcome will be. Siegel-Singh echoed Khan’s words and said that should Brown sign the bill, she and others will be there to continue the push forward, both statewide and on her own campus.

“I totally expect roadblocks. They don’t want to provide the service,” Siegel-Singh said, referring to medication abortions. “What I hope will come out of this, is that people, especially legislators, become more aware that there are so many issues about access to health care services. Even if a student has health care, do they actually have access to what they need if they aren’t in the right county?”

UPDATE: This story has been updated to reflect the findings of a fiscal analysis of SB 320 from the UC Office of the President.

Source: https://rewire.news/article/2018/08/29/california-legislature-passes-bill-requiring-medication-abortion-at-state-universities-amid-concerns-from-campus-administrators/

We talked about “compassion in a crisis.” But did pro-repeal campaigners miss opportunities to talk about autonomy, the right to abortion, and medication abortion’s safety when we fought the country’s draconian abortion ban?

In May, a two-thirds majority of Irish voters cast ballots to repeal the Eighth Amendment, a constitutional ban on abortion.

Having moved away from Ireland for work, I wasn’t directly involved in this most recent phase of the referendum campaign. But I had been an active member of the Abortion Rights Campaign in the three years leading up to the vote and was heavily invested in the result. Several exit polls made me optimistic, but cautiously so, not wanting to count unhatched chickens or uncounted votes.

When the official result came in, I hugged friends and fellow campaigners a street chockablock with stark REPEAL sweatersand colorful Together for Yes T-shirts. We repeated, like a happily bewildered broken record, “We did it, we did it!” But overwhelmingly, the mood in Dublin city center that night wasn’t celebration, but relief that we were going to alleviate women’s suffering.

A Yes voter waited anxiously at Dublin Castle for results in the Irish referendum on the Eighth Amendment concerning the country’s abortion laws on May 26. (Charles McQuillan/Getty Images)

Irish society has changed profoundly since the Eighth Amendment debuted in 1983, particularly in the Catholic Church’s diminishing dominance and the increased visibility of women. Together, a combination of cultural change and evidence also won the day. Campaigners worked hard to make sure that information about how Irish women need abortion and how many were accessing it regardless of the ban took center stage.

Waking Up to the Realities

Educating the public was no small task. Ireland’s law said the only grounds for a legal abortion was an immediate, unambiguous danger to the pregnant person’s life. It also made it illegal to share or receive abortion information.

By 2015, this legally imposed silence had done decades of damage. In that year, Amnesty International released the results of the RedC poll, which reported only 9 percent of people knew that the sentence for having an abortion in Ireland was up to 14 years imprisonment.

Still, several legal cases began chipping away at the secrecy and censorship. In 1992, a suicidal child, pregnant by rape, was prevented from leaving the country for an abortion. The resulting X case eventually decided that suicide risk would also be grounds for an abortion, and that Irish women could legally go abroad.

But until recently, few people were aware of the difficulties involved with either concession. A suicidal woman had to go before a panel of six doctors, who judge whether she is “suicidal enough” to qualify—a cruel burden to put on someone struggling with their mental health. Traveling for an abortion, usually to the United Kingdom, was the more common legal option, but not any easier. Such travel requires more than $1,000 in immediately available cash for a first-trimester surgical abortion; navigating at least a full day’s absence from normal life; and a visa for migrant or refugee women. A system that forces a person to sneak away from home and later get back on an airplane following a medical procedure, still bleeding and cramping, callously denies that person any comfort or dignity.

Years of slow and steady work educated the public on the grim realities of the Eighth, but the single biggest event to wake people up to its full horror was the 2012 death of Savita Halappanavar after she was denied a life-saving pregnancy termination. A 31-year-old dentist, she was experiencing a weeklong miscarriage and requested an abortion to end the process. Her doctors denied it because a fetal heartbeat was still detected and, under the ban, treating her miscarriage would have been considered an abortion. The delay cost Savita—known mostly by her first name—her life due to an infection.

Theoretically, the abortion law had a provision that meant women wouldn’t die because of being denied an abortion. No one thought that a woman would be allowed to die surrounded by people and medical inventions that could very easily save her.

Savita became the subject of an international controversy and a symbol. Every year, a vigil is held in her honor in conjunction with her remaining family and friends in Galway. During the Repeal the Eighth campaign, her father called for us to “Remember Savita” by voting yes. After the referendum, people left flowers, notes, and their Together for Yes badges at a mural of her.

In life, Savita was an inspiring woman. For many of us, her death felt like terrifying evidence of how little the Irish state cared about women. Our horror and shame at how Savita had been treated—and our fear—galvanized the campaign to repeal the Eighth Amendment.

Not Politics as Usual

Over time, opinion polls showed strong support to liberalize the country’s abortion law, and the pro-choice movement was gathering momentum and becoming mainstream. But as the ban was constitutional, no reforms could be made without a referendum, and political processes had to take place before the government called one.

In 2016, a “Citizens’ Assembly” was convened by the then-government. About 100 citizens with no strong feelings on abortion were invited to examine arguments, submissions from citizens and groups, and finally make a recommendation to government on the Eighth Amendment.

I wrote an individual submission and collaborated on the Abortion Rights Campaign submission. I loaded them with evidence about the safety of abortion generally and the danger of clandestine terminations, especially in places where women can’t safely access the abortion pills or seek medical advice in the rare event that complications do occur. I included information about how making abortion illegal doesn’t even reduce it. In my individual filing, I discussed how my friends and I earned low salaries and paid high rents; we couldn’t afford to travel and in a crisis would have to take pills at home and risk prison.

A newspaper story at the time described the Citizens’ Assembly being unimpressed with the quality of many of the submissions, describing them as polarizing, based on emotion, and lacking complexity. One group unanimously agreed that “pro-life submissions offered no solutions and they did not analyse or address the complexity of the situation.”

Based on evidence—statistics about Irish women were accessing abortion anyway and personal stories—the assembly took a pro-choice position, voting overwhelmingly to recommend access to abortion. The government then convened the Joint Oireachtas Committee, made up of members of both houses of the Irish legislature, to consider the recommendations of the Citizens’ Assembly. They examined evidence and heard from a number of national and international medical and legal experts.

People in the street were beginning to say that there didn’t seem to be many—or any—credible experts speaking out in favour of the status quo.

The Complex Case of Abortion by Pill

Medication abortion—the combined misoprostol-mifepristone regimen—was a game-changer.

More than 170,000 Irish women are known to have accessed abortion in the United Kingdom between 1980 and 2017, with a small number of Irish women also traveling to the Netherlands. These numbers are probably underestimates; I’ve heard from women who, out of fear, gave false U.K. addresses at these clinics.

But the number of women traveling declined as more women accessed medication abortion. A single provider, Women on Web, sent abortion pills to 1,636 women from 2010 to 2012 both here and to Northern Ireland, and 5,650 women in the two countries requested abortion pills from 2010 through 2015.

To policymakers, the increasing availability of the abortion pills made the ban unworkable. OB-GYN professor and former International Federation of Gynecology and Obstetrics President Sabaratnam Arulkumaran led the inquiry into Savita’s death and told the Joint Oireachtas Committee that making abortion illegal only serves to promote illegal abortions and disadvantage poor women. And when estimated numbers of medication abortions in the country were reported in the media, it blew the illusion that Ireland is “abortion-free” right out of the water.

Ironically, popular misconceptions about the abortion pills swayed many votes. The abortion pills are safe, but with no regulation or official guidance on how and where to safely access them, many Irish voters worried medication purchased online couldn’t be trusted as much as a pill acquired from a doctor or pharmacist.

“They’d say things like ‘Sure, that’s so dangerous, you wouldn’t know what these poor girls are taking over the internet,’” recalled Gearóidín McEvoy. She canvassed in my home area of County Laois, where there had been no visible pro-choice presence until months before the referendum.

In the case of medication abortion, evidence took a back seat. Empathy came to the fore.

Evidence Versus Messaging

Yes campaign posters didn’t display facts or statistics. “Sometimes a private matter deserves public support” reminded some posters, while others promised a yes vote was for “compassion in a crisis.”

While some activists used “choice” rhetoric in the fight against Ireland’s abortion ban, many preferred to talk about compassion and worked to make the vote a more personal issue, as did this mobile billboard in Dublin. (Barry Cronin/AFP/Getty Images)

Elaine O’Neill, who also canvassed for the Yes side, said, “I spoke to people that I would never have thought would be ‘yes’ voters and they said, ‘Sure, it’s not my business what other people do. I don’t know other people’s situations.’”

As popular ideas about the safety of medication abortion went against evidence that shows women can take it with few complications, even without a doctor’s monitoring, neither was there much mention of the right to choose or bodily autonomy in much of the mainstream messaging.

That troubles some Irish feminists who feel that messages of free, safe, and legal abortion and a woman’s fundamental right to bodily autonomy were compromised too much.

Did we win by avoiding those issues?

The “soft” messaging that focused on privacy and protecting women suited Ireland, in some ways. The campaign to keep abortion illegal backfired most when it placed graphic and distressing images outside maternity hospitals and schools. Still, it is possible that the repeal movement overestimated the conservatism of the Irish majority. It is also possible that more people would have responded to choice messaging.

We felt we had to play it safe because we needed people who were unsure to side with the repeal: people who were pro-choice in some situations but not in favor of abortion without restriction, people wary of how quickly Ireland seemed to be moving away from its religious past, or people who feared “abortion as contraception.”

There’s an interesting contradiction here. We had to speak directly to people and stayed away from the kind of strident language that could make them feel they were merely watching a debate. But there’s also the fact that talking about a person’s “right to choose” makes it very private and personal. The risk then is that people, especially those unlikely to face a crisis pregnancy themselves, decide it’s not their concern. Reminding voters that “sometimes a private matter deserves public support” almost certainly got more of this group out to vote yes than “my body, my choice” would have done.

I want abortion to be free, safe, and legal, and I want a society that respects a woman’s decision. But if we hadn’t got this vote through, there would be terrifyingly little hope of change. Compromising on messages of choice and bodily autonomy and focusing on more general messages of care and compassion probably won the day.

Armed with this victory, we can now fight those battles and false narratives that disguise anti-abortion messages as care.

I had worried that the No side would try to put a pro-woman spin on their propaganda. I’ve previously had to fact-check misinformation about links between breast cancer and abortion. Despite both international and Irish evidence that the majority of women don’t regret their abortions (and I would argue that a society where abortion is not stigmatized would provide better care for the minority who do), unsound arguments that women are physically and psychologically torn apart by terminations can gain traction. Ireland has had problems with fake “crisis pregnancy” agencies before.

Media campaigns that questioned false narratives helped. Influential news websites ran “fact-check” columns. “In Her Shoes” publicized stories of women who had, in various ways, been affected by the Eighth Amendment. People were very actively looking up their own information and getting the facts for themselves.

In contrast, women didn’t feature very much in the No campaign. It was primarily about “the unborn.” Graphic posters, aggressive canvassing, and hardline tactics on the No side seem, if anything, to have alienated many voters.

The day before the referendum vote, a plane towed this anti-choice message across the Dublin sky. In keeping with the No campaign’s focus, it put “babies” first. (Barry Cronin/AFP/Getty Images)

When Evidence Didn’t Matter

It’s not a surprise that many anti-abortion people refused to engage with research or be moved by personal stories.

As evidence mounted that Ireland was ready to change, the No campaign pivoted to a new strategy.

In 2017, a pro-choice activist investigated the false claim that, due to abortion, there have been almost no babies with Down syndrome born in Iceland for a number of years. This myth made the rounds on social media, but in early 2018, Down syndrome advocacy groups requested that no group use the condition in the campaign.

We respected that, even as the No campaign put adorable babies and children with Down syndrome on posters claiming that “abortion discriminates.” The right of a person with Down syndrome to bodily autonomy in the event of their facing an unintended pregnancy wasn’t discussed. Distorted statistics from the United Kingdom and Iceland implied that repeal would wipe people with disabilities out.

To my knowledge, none of the groups who used Down syndrome in their fight to keep abortion illegal have ever provided practical support, donated money or time, or advocated on behalf of this community.

One of the most important pieces I’ve read this year was the op-ed of a father to a young child with Down syndrome who wrote “the idea of her being exposed to voices on the radio and posters on the street declaring that she is only alive because her parents were forbidden from terminating her is heartbreaking.”

‘Home’

I had hoped for a close, knife’s-edge victory at best.

In London’s Heathrow Airport before the vote, everywhere I looked I could see someone wearing a pro-repeal sweater, T-shirt, or badge. It was a huge shift from just a few years ago to see a pro-choice movement so visible. The #HomeToVote hashtag made international news. There was something deeply meaningful about openly crossing the Irish Sea east to west in the hope that no more women should have to secretly journey in the other direction.

Pictures of women with suitcases have been a theme in Irish pro-choice messaging for a long time. On May 26, the group Parents Together for Yes posted a photo of a young woman pulling a suitcase behind her. And in large letters over the picture, a simple message: “She is finally home.”

Although the referendum repealed the Eighth, the government has yet to legislate and organize services. Women are still traveling and will be for months; the minister for health is pressing ahead and hopes to have services in place for January 2019, but service providers are unsure this is realistic.

So she’s not quite home yet, and neither are we.

Source: https://rewire.news/article/2018/08/29/irelands-repeal-eighth-retrospect/

“State politicians, in lock step with the Trump-Pence administration, are bending the rules to take away women’s health and rights any way they can,” said Danielle Wells of Planned Parenthood Federation of America.

Tennessee is the latest state to attempt to prohibit abortion care providers from receiving reimbursements for serving patients with low incomes through the state’s Medicaid program.

Congressional Republicans and GOP-majority state legislatures have long sought to block funding to Planned Parenthood, which received $543.7 million in government funding through federal reimbursements and grants during fiscal year 2016, according the organization’s annual report.

The Hyde Amendment already prohibits the use of federal Medicaid funds for abortion services, except in limited circumstances.

The Trump administration in January rescinded Obama-era guidance that stated excluding Medicaid funding for health-care providers that offer abortion care violates federal law. The Obama administration issued the guidance in response to state-level GOP efforts to defund Planned Parenthood—attacks on health care for people with low incomes.

Danielle Wells, assistant director of state advocacy media for Planned Parenthood Federation of America, told Bloomberg Law that the efforts by state lawmakers are a “backdoor attempt” to block the health-care organization from providing reproductive care.

“State politicians, in lock step with the Trump-Pence administration, are bending the rules to take away women’s health and rights any way they can,” Wells said.

Tennessee Gov. Bill Haslam (R), a staunch opponent of abortion rights, signed legislation in April to avoid the “direct or indirect use of state funds to promote or support elective abortions.”

HB 2251, sponsored by Rep. Jimmy Matlock (R-Lenoir City), directs the state to seek a waiver from the Centers for Medicare and Medicaid Services (CMS) to exclude providers from participating in the state’s Medicaid program if inclusion of the provider in the program would result in the use of state funds for abortion.

The bill, which was passed by wide margins in the GOP-dominated state legislature, is based on copycat legislation drafted by Americans United for Life (AUL), the self-described “legal architect” of the anti-choice movement.

Dr. Wendy Long, director of TennCare, on August 10 submitted a request to exclude from the state’s Section 1115 Medicaid waiver any provider or affiliates of any provider that has performed more than 50 abortions in the previous year.

Sarah Tanksley, spokesperson for TennCare, told Nashville Public Radio that seven providers, including Planned Parenthood, would be prohibited from participating in TennCare. Tanksley declined to identify the other providers.

“I cannot disclose that,” Tanksley said. “Under state law, that is confidential information about reports made to the state regarding abortions, and the identity of the providers is confidential.”

CMS responded to Tennessee officials’ request on Friday to say that the agency had “completed a preliminary review” of the request and “determined that the state’s amendment request has met the requirements for a complete amendment.”

The amendment application has been posted online for public comment, and as of Wednesday only 65 responses were posted. One of the public comments charged that Tennessee “is effectively making abortion services unavailable to the Medicaid insured population. … It is a gross overstep of the state to believe they know more about any women’s health decision than the woman herself. Passing this amendment will only serve to put more women’s lives at risk.”

Another commenter said this anti-choice effort is “not about abortion services as we know federal funds are not used for abortion services. It is about abridging the rights of citizens, particularly women, and this should never be the role of government.”

The public comment period will end on September 23.

After reviewing the public comments, CMS will make a final determination on Tennessee’s request.

Source: https://rewire.news/article/2018/08/29/tennessee-republicans-ask-for-trumps-help-in-defunding-planned-parenthood/