While Jane Doe, the unaccompanied immigrant minor “held hostage” by the Office of Refugee Resettlement (ORR) because she wanted an abortion, was eventually able to access care on October 25, the legal battle surrounding ORR’s anti-choice policy is ramping up.

The Trump administration implemented a revised policy in March 2017 “that allows [shelters] to wield an unconstitutional veto power over unaccompanied immigrant minors’ access to abortion,” according to court documents. This directive prevents unaccompanied immigrant minors in their care from obtaining abortion care by prohibiting federally funded shelters from taking “’any action that facilitates’ abortion access to unaccompanied minors in their care without ‘direction and approval’” from ORR Director Scott Lloyd.

Lloyd told the Christian Broadcasting Network on October 30 that ORR’s policy was “under review.” But Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union’s (ACLU) Reproductive Freedom Project, told Rewire there is “no evidence in court proceedings that the policy is under review in any way.”

“People may think we got this victory for Jane Doe and that everything is great and OK now,” Amiri said. “Yes, Jane Doe was able to get the abortion she had the constitutional right to access, but it’s important to understand that the policy she was subjected to is still in place, and it will be in place until the court allows us to proceed as a class action and gives us a preliminary injunction as a class to prevent the federal government from imposing the policy on other girls going forward. Make no mistake: This policy still exists and is still being enforced.”

The ACLU filed a brief this week to proceed with its class action suit on behalf of unaccompanied immigrant minors in ORR custody being blocked from accessing abortion care, like Jane Doe. The ACLU is asking that Jane Doe be the class representative.

The federal government, which has taken unusual steps surrounding the case—including seeking to penalize the attorneys working on Jane Doe’s behalf—says that Jane Doe is an inappropriate class representative because she was eventually able to access abortion care.

Meanwhile, the Department of Justice (DOJ) is fighting for the ability to share information related to Jane Doe’s abortion with her potential sponsors, citing the First Amendment.

Referring to its own policy on information sharing, ORR says that Section 8.101 of the agency’s policies and procedures “in no way prevents ORR from using and disclosing a minor’s information as ORR carries out its custodial duties on the minor’s behalf, including information the minor’s medical care providers and potential sponsors regarding important and relevant personal and medical facts.”

Jane Doe has now been in ORR custody for months and has had multiple sponsors denied by the agency. Amiri told Rewire she doesn’t know the exact reason the teen is still in custody. A federal appeals court on October 20 gave the teen until October 31 to secure a sponsor so that she could access abortion care, and the federal government said it could find Jane Doe a sponsor by that date. But as of November 30, Jane Doe is still without a sponsor. This means that had Jane Doe’s attorneys not continued to fight for her to access care sooner than the October 31 deadline, she would have passed the 20-week mark and been forced to carry an unwanted pregnancy.

ORR operates within the Department of Health and Human Services (HHS), which contracts with local shelters to care for unaccompanied immigrant minors. Amiri said that young people on average spend 34 days detained in these shelters before being released to sponsors in the United States. But the length of detainment can vary for a number of reasons, including the nationwide backlog on adjudicating immigration cases and the lengthy nature of the asylum process. But there may be more nefarious reasons at play.

Advocates say there is reason to believe ORR is dragging its feet trying to find sponsors for unaccompanied immigrant minors so they can be transferred to Immigration and Customs Enforcement (ICE) custody and placed in detention once they turn 18. In Jane Doe’s case, ORR’s inaction may be retaliatory.

Susan Hays, legal director for Jane’s Due Process, an organization providing legal representation to pregnant minors in Texas, told Rewire that she suspects Jane Doe’s sponsorship opportunities have been “sabotaged.”

“They want to tell any potential sponsor she’s had an abortion, that is what the federal government is fighting for. And let’s say a potential sponsor [for Jane Doe] is a beloved family member who is against abortion and they would reject her if they knew—that’s the risk [the federal government] wants Jane Doe to run. It is absolutely retaliation,” Hays said.

According to court documents, the federal government has taken great pains to inform the parents of unaccompanied immigrant minors in ORR custody that their child is seeking abortion care, even when these young people have received a judicial bypass and their parents remain in their country of origin. The federal government says there may be medical reasons for telling a potential sponsor that Jane Doe has had an abortion procedure. The fallacy behind that, Hays said, is that having an abortion doesn’t affect one’s health, despite a sustained anti-choice propaganda campaign stating otherwise.

Anti-Choice Extremism in the Immigration System

The myth the federal government is using to justify the violation of Jane Doe’s right to privacy can be traced to Lloyd, an anti-choice radical who has emerged as a staunch opponent of reproductive rights in an administration full of similar ideologues. Nothing in his background indicates Lloyd is qualified or equipped to lead ORR or to “counsel” pregnant people in ORR custody against seeking abortion care, which he admitted to doing when speaking to the Christian Broadcasting Network.

Immigration advocates see Lloyd as an ideological pick by the Trump administration as it ushers “anti-choice fanaticism” into the immigration system. Lloyd’s personal beliefs mirror those of anti-choice extremists and men’s rights activists, as evidenced by his published writings. Emails recently released by the ACLU as part of court proceedings reveal how deeply entrenched anti-choice extremism has become within ORR.

One emails says a shelter must confirm a minor will receive anti-abortion counseling as a condition of her release. In another email, HHS officials are informed that shelters are required to alert ORR before doing anything to facilitate an abortion. A memo from Lloyd reveals that another teen received a judicial bypass to obtain abortion care, but her shelter was instructed to hinder her from moving forward. It remains unknown if the minor was able to access the medical procedure.

Lloyd has a well-documented history with so-called crisis pregnancy centers (CPCs), or fake clinics, which provide people with false information to dissuade them from seeking abortion care. Lloyd instructed ORR Deputy Director Jonathan White via email to ensure a minor in custody in Arizona get an ultrasound and counseling at Choices Pregnancy Centers, an anti-choice fake clinic. These clinics comprise almost all of the approved counseling centers listed by ORR for minors requesting abortion care. An investigation by Reveal found that this list came from the anti-abortion advocacy group Heartbeat International, whose mission is “to make abortion unwanted today and unthinkable for future generations.”

Hays told Rewire she is worried that young people in ORR custody who want abortion care may not realize they are being funneled into anti-choice fake clinics. They may be too afraid to voice their desire to have an abortion, given that so many come from countries where abortion is criminalized.

Government documents indicate Lloyd “receives, or for some time this year received, weekly updates concerning each pregnant [unaccompanied child]’s location, the circumstances of her pregnancy, her gestational age, and whether she requested information regarding abortion,” according to the brief filed by the ACLU. Amiri, who has worked on issues related to ORR since 2008, said she has “never seen anything like this.”

Amiri told Rewire that Lloyd is “literally inserting himself” into the patient-provider relationship, forcing girls to not only obtain permission from the federal government before they access abortion care, but to consult the federal government about every aspect of their pregnancy. Hays said her overarching concern is that teens in custody will be forced to carry unwanted pregnancies and the “world may never know.”

There were around 726 pregnant unaccompanied minors in ORR custody in 2014, 450 in 2015, and 682 in 2016, according to court filings by the ACLU. A court filing filling from the federal government revealed that there were 43 unaccompanied immigrant minors in ORR custody as of October 16, 2017.

Hays said ORR officials put “their boot down on shelter’s necks,” when they implemented the new anti-choice policy in March. What she means is that shelters depending on contracts with the agency were faced with a choice: Help a young person get an abortion and risk getting funding removed, making it impossible to care for any other immigrant minors. Or toe the line and prevent a young refugee from getting the abortion care she wants. Hays said it’s easy to see “who got sacrificed.”

“It is the work of a bully and a coward to pick on the most vulnerable demographic you can imagine: pregnant undocumented refugees,” Hays said. “Scott Lloyd is fixated on the reproductive capacity of adolescent refugees to the point of being creepy. The fact that Scott Lloyd is flying across the country, presumably on the taxpayer’s dime, to sit down with a teen girl he’s never met and talk to her about her reproductive status is so inappropriate it’s mind boggling.”

https://rewire.news/article/2017/11/30/trump-officials-obsession-pregnant-immigrant-minors-still-shaping-federal-policy/

Democrat Marie Newman was endorsed by national progressive groups this week in her primary challenge against anti-choice Rep. Dan Lipinski to represent Illinois’ 3rd District, pointing to the congressman’s record opposing reproductive and LGBTQ rights.

NARAL Pro-Choice America, MoveOn.org, Democracy for America, the Progressive Campaign Change Committee, and the Human Rights Campaign announced endorsements of Newman on Tuesday and planned to come together in Chicago on Wednesday to speak in support of the candidate.

Lipinski, who won his seat after his father stepped down in 2004, has made no secret of his anti-choice views, though they break from the Democratic Party’s plank on abortion rights. He co-chairs the Congressional Pro-Life Caucus and sits on the federal advisory board of anti-choice group Democrats for Life of America.

“For too long, Dan Lipinski has ignored the needs of working families across Illinois, by pushing his fringe ideological agenda at the expense of women and families across the state,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a Tuesday statement. “Congressman Lipinski is way out of step with his constituents and with Democratic party principles when it comes to women’s rights, LGBT equality, and the basic freedoms that Americans hold dear.”

Charles Chamberlain, executive director of Democracy for America, said in a statement that his organization was supporting Newman “because Illinois voters deserve a Democratic congressional delegation that is as unflinchingly committed to fighting for abortion rights and LGBT equality as they are to standing up to any other racial and economic injustice.”

Lipinski is one of only two Democrats in the U.S. House of Representatives to sign on to a GOP-backed measure this year to restrict abortion beyond 20 weeks of pregnancy, based on the false claim that a fetus can feel pain at this point in a pregnancy. He has co-sponsored other anti-choice measures such as a permanent ban on federal abortion funding, voted to defund Planned Parenthood, and has questioned evidence-based guidelines for medication abortion.

Newman in April announced her intent to challenge Lipinski. Already, Lipinski’s views on reproductive health care have been a contentious issue in the primary race.

Her campaign platform includes calls to expand access to health care through “Healthcare-For-All solutions” and criticizes Lipinski’s opposition to reproductive rights. “Consistent with the Roe v. Wadedecision, I believe that reproductive decisions belong with women and her right to choose, not with government or politicians,” her campaign site says, noting that Lipinski “has voted consistently to defund Planned Parenthood and eliminate a woman’s right to choose.”

Lipinski’s district is rated as “Solid Democrat” by the Inside Elections with Nathan Gonzales/Roll Call ratings, meaning the seat is likely to remain in the hands of Democrats no matter who wins the March 20 primary in 2018.

https://rewire.news/article/2017/11/29/progressive-groups-back-challenger-anti-choice-congressional-democrat/

As the SisterSong Women of Color Reproductive Justice Collective celebrates its 20th year of organizing and activism on behalf of women of color across the globe, the organization’s members and supporters have compiled an essay collection called Radical Reproductive Justice covering a range of reproductive justice perspectives.

Killing the Black Body author Dorothy Roberts aptly explains in her foreword to the anthology, “RJ is a model not just for women of color, nor just for achieving reproductive freedom. RJ is a model for organizing for human equality and well-being. The world needs radical reproductive justice.”

The book is as revolutionary and revelatory as it is vast, with writers who are fighting for their inclusion despite their anti-abortion stance; critiquing what it means to be an ally, as an ally; and creating space for more difficult conversations about how programs and organizing around reproductive health and autonomy often erase trans people. It is these moments, appearing throughout the anthology, that reveal what the editors—SisterSong co-founder Loretta Ross, CUNY School of Public Health professor Lynn Roberts, New Mexico Highlands University professor Erika Derkas, University of Michigan consultant on race and ethnicity Whitney Peoples, and the late activist lawyer and legal scholar Pamela Bridgewater Toure—mean by radical reproductive justice, and why the theory is an imperative for people who support bodily autonomy in how they think, act, and write about these issues.

Reproductive justice, a term coined by Black women in 1994, centers “three interconnected human rights values: the right not to have children using safe birth control, abortion, or abstinence; the right to have children under the conditions we choose; and the right to parent the children we have in safe and healthy environments.”

I’ve read numerous books, essays, and articles on the framework, including a few by its co-founder Loretta Ross. The essays contained in Radical Reproductive Justice offer the most powerful critique of the ways in which “allies” tend to normalize oppression, consciously or not. Divided into four parts—historical context; theory; policy, practice, and activism; and poetry—the anthology empowers readers to better understand the roots of reproductive justice and how the theory can be molded and used by other fresh perspectives “to build an [even more] expansive vision for universal justice” than what the founders may have envisioned.

Ross explained to me on the phone that RRJ, as she calls the book, “is different because we took a more radical approach to describing reproductive justice than I have in my previous writing. It has a stronger critique of white supremacy, neoliberalism, [and] identity politics,” she said.

As just one example, INCITE! co-founder Andrea Smith, in her essay “Beyond Pro-Choice versus Pro-Life: Women of Color and Reproductive Justice,” explains how the “pro-life versus pro-choice paradigm is a model that marginalizes women of color, poor women, and women with disabilities. It reifies and masks the structures of white supremacy and capitalism that undergird the reproductive choices women make, and narrows the focus of our political goals to the question of the criminalization of abortion.” She instead pushes for a “nationally coordinated women of color movement” that makes “the dismantling of capitalism, white supremacy, and colonialism central to its agenda, and not just as principles added to organizations’ promotional material designed to appeal to women of color.” Such a movement would offer advocates more freedom “to think more creatively about who we could work with in coalition while simultaneously allowing us to hold those who claim to be our allies more accountable for the positions they take.”

Ross highlighted in our interview how the reproductive justice framework “is broad enough to include a lot of different perspectives,” including those that the co-founders didn’t necessarily agree with. “But that was our point,” said Ross, “to show how we could use the framework in some inventive and creative ways to build a forward-looking movement.”

One such article is a piece that also took me by surprise. It’s an essay written by poet Mary Krane Derr, published posthumously and titled “Card-Carrying Marchers and Sister Travelers: Pro-Life Feminists and the Reproductive Justice Movement.” In it, Derr makes the case for collaboration between reproductive justice advocates and self-described pro-life feminists who do not support abortion—nor do they support its criminalization or harming people as a consequence of their stance—but do support contraception.

Ross explained that during the ten years that this book was in production, “Mary Krane and I had extensive conversations about her essay before she passed, and I frankly told her there were parts of [her] historical account that I didn’t agree with; she is misinterpreting things that I don’t remember or the evidence doesn’t support.”

“But at the same time, she got me to understand that within the anti-choice movement, there is a left, a center, and a right, and she represents the feminist wing of the anti-choice movement,” Ross continued. “And they are under severe attack and critique within their own anti-choice movement for being so feminist …. That [is something] I didn’t really understand or know about.”

“But Mary’s wasn’t the only ‘pro-life’ essay in there, it’s just that she was the only one out as being ‘pro-life,’” Ross pointed out. “If [a contributor] didn’t choose to write about their identity, one doesn’t know that the book contains all of those registers of voices.”

RRJ shows the reader the potential reproductive justice has to transform our society into a culture that is accepting of human rights-centered folks with different views toward achieving justice. But those conversations aren’t easy to have, and those relationships aren’t easy to maintain. When asked for advice on having those tough discussions, Ross said, “with love and respect for ourselves first, because if you don’t love and respect yourself, it’s hard to extend it to someone else.”

“I think the best way to approach this is with strength and integrity and honesty,” Ross added. “Know what you believe in, analyze why you believe it, and then make space for other people to have their beliefs.”

Storytelling is a critical component of the process because it allows reproductive justice advocates to center their truth in their work and organizing. “Storytelling is a reclamation project of reclaiming your voice, your self, your truth, helping you to discharge all of the negative things you’ve internalized about those things, so that you can use your fullest and best thinking to figure out what you want to do with the rest of your life,” explained Ross.

An essay that exemplifies that is Lucia Leandro Gimeno’s contribution, titled “The Reluctant Reproductive Justice Organizer and Birthworker.” As the director of the Queer & Trans People of Color Birthwerq Project, Gimeno reflects on his experience as a transmasculine femme doing justice work, calling attention to the “tension and disconnect between RJ and trans justice … and how [people] deal or don’t deal with the contradictions and big questions around honoring where we come from in order to figure out where the hell we’re going.” One such question that is begging to be addressed, he notes, is how “we enter a conversation that acknowledges the misogyny and erasure of women and the transphobia that also erases women (cis and trans)?”

Building from Caroline R. McFadden’s example in a different essay (about “critical white feminism” theory), it’s on cisgender people to identify the ways in which we uphold transphobia by generalizing our experiences as the norm, thereby continuing to erase trans people from conversations critical to their survival. As Gimeno writes, “If we look at our traditions around birth and community and family, they have always included [cis and trans and queer and straight folks]. Part of what colonization and white supremacy have done is erase the fact that we need each other and that we are being attacked by the same systems.”

In McFadden’s essay, the anti-racist feminist writer speaks directly to white “allies,” who have more work to do when it comes to examining their own stories and the ways in which they experience reproductive privilege. Titled “Reproductively Privileged: Critical White Feminism and Reproductive Justice Theory,” the essay lays out her fear of repeated history in which white feminists “generalize our experiences as the norm” and fail to show true concern when “our experiences aren’t at the center of a theory or a praxis.” Writes McFadden, “white feminists understate the ways in which whiteness and privilege facilitate problematic theorizing that assumes a hubristic universality, while at the same time criticizing cisgender white men for doing the same.” She adds that although “the feminist movement loudly rejects instances of overt racism, the movement reflects the dominance of whiteness by normalizing it.” As an example of this theory in practice, McFadden describes how white organizers of the Women’s March initially “failed to incorporate the same anti-sexist and anti-racist frameworks of the black women’s march in 1997” all while co-opting the name of that Philadelphia march—the original Million Women’s March.

McFadden argues that anti-racist white women must focus on their own communities and actions instead of trying to effect “change in communities of color.” She concludes, “White feminists must take responsibility for ourselves and our mistakes, demolish and rebuild our current conceptualization of reproductive oppression, and use our shared power to move forward toward a world of infinite possibilities achieved through reproductive justice.”

As someone who works in the media, I wondered while reading the book about the ways in which my fellow journalists might help to reinforce a human rights culture. A logical conclusion would be for those working in the media to consider their role in pathologizing communities of color through every editorial move they make. Personally, I’m thinking about whether there are areas where I’ve dehumanized communities of color (I’m a Black woman, but white supremacy does not infect only white people) in my everyday decision making, from assigning stories to, on a more basic level, perpetuating damaging frameworks. Rewire does a great job of centering those most affected by systemic oppressions, but there’s always room for growth, especially as we dig deeper into the injustices faced by people who’ve been polyvictimized, including undocumented immigrants and Native communities.

People in the media can also do more to stay vigilant about asking the right questions when it comes to individual events. In the book, Ross discusses the story of Keisha, a pseudonym. Ross took the 12-year-old to an abortion appointment, and to this day, some seven years later, the image of the young woman sucking her thumb has stayed with her. “It just broke my heart,” said Ross on the phone. “And then her mother’s boyfriend was just hovering over us.”

When reporting that story, there’s a lot of context and questions to raise, but which is the most important angle? For advocates like Ross, “the problem wasn’t that Keisha needed an abortion, the problem was that she shouldn’t have had [to get one]—why did she need one? What else was going on in her life?”

And there’s the fact “that [Keisha and her mother] had to come from Chicago to Atlanta to have those services. Why weren’t those services available where she was, locally?” Ross asked. There’s also the abuse part of Keisha’s story, she explained: “Our failure to protect vulnerable girls like her—it’s not Keisha’s fault.”

Ross raised the issue of contraception too. “I particularly was pained by the fact that her mother refused birth control for both of them,” said Ross. “And, of course, when you’re being an abortion doula you can’t ask these intrusive questions.” But there are larger context questions around why someone might “equate taking birth control with being sinful,” Ross pointed out, and why people are “still taught that sex and sexuality concerning women is a sin.”

“There’s just so many things going on with [Keisha’s] story—that just was an emblem of why we needed [reproductive justice theory], because we couldn’t explain all these other things without that,” said Ross.

Reporting through a reproductive justice lens, then, empowers publications to tell fuller stories and to view their subjects as whole people.

There’s also the ongoing problem of false equivalence. As Ross explained to me during our interview, “You see it a lot in covering of the white supremacist movement, where [in news stories] there has to be white supremacists who are pro-fascists and equivalent to them are anti-fascists …. That’s just like saying, everybody’s human and being a multimillionaire human is no different than being an impoverished one.”

This comes into play when the reproductive justice framework is pitted against “pro-choice” or “pro-life” ideologies. As the editors of RRJ explain in their introduction, “It is important to underscore … that RJ is neither an oppositional nor a peace-making ideology; it is an emergent radical theory that recasts the problem using the human rights framework.” Or, more to the point: “RJ centers the lives of communities of color instead of the middle-class white people on both sides of the abortion debate.”

As we move into a radical reproductive justice future, our role as media makers is to continue searching for and telling honest stories, and that includes not painting any particular experience with one broad brush. Radical Reproductive Justice reminds us that no movement is a monolith and no one experience is the norm. Our stories should reflect that truth.

https://rewire.news/article/2017/11/28/future-radical-reproductive-justice/

Last week a federal district court ruledunconstitutional a Texas provision that bans the most common form of second-trimester abortions. The decision was an important win in what is emerging as the next big fight over abortion rights: criminalizing abortion procedures and providers in the name of promoting “fetal life.”

But it’s not the end of the road. With the Fifth Circuit Court of Appeals sitting in the middle of this fight, there is a good chance it will make its way all the way up to the U.S. Supreme Court. If and when that happens, abortion rights advocates have to hope Justice Anthony Kennedy is on their side—and it’s not so clear he will be.

Anti-choice advocates pivoted to non-intact dilation and evacuation (D and E) bans like the one in Texas almost immediately following their 2016 loss in Whole Woman’s Health v. Hellerstedt. In Hellerstedt, the Supreme Court struck as unconstitutional provisions of a different Texas law that required abortion clinics to meet the same architectural standards as stand-alone surgical centers, even if the clinic provided no surgical services, and that required doctors performing abortions to have admitting privileges at nearby hospitals.

Despite Texas lawmakers’ claims, the 5-3 majority in Hellerstedt found no evidence that the requirements advanced patient safety. The Court ruled that for restrictions to survive constitutional scrutiny, it was not enough for lawmakers to simply assert patient safety as a justification for attempting to curb abortion access—they also needed evidence to back up those assertions.

The Hellerstedt decision effectively cut off the ability of anti-choice lawmakers to target abortion clinics for closure, reduce access to abortion services and other reproductive health care, and then claim that doing so is necessary to protect patients.

Promoting patient safety, though, is only one part of the constitutional analysis. States can also pass laws that restrict abortion access, even prior to viability, if those restrictions advance the state’s “profound” interest in promoting fetal life without enacting an “undue burden” on would-be patients. This is the part of the analysis anti-choice advocates are now testing with their D and E bans.

The idea of a “profound” state interest stems from Roe v. Wade. In particular, it arose the last time anti-choice advocates had a win before the Supreme Court: in 2007 in Gonzales v. Carhart. Gonzales upheld the federal “partial-birth” abortion ban, an unscientific term developed by anti-choice advocates to describe an intact D and E abortion—also known as a “D and X” abortion—a relatively uncommon method of ending a pregnancy in the second trimester.

But before Gonzales came Stenberg v. Carhart, the 2000 decision that struck down Nebraska’s “partial-birth” abortion ban. The Nebraska law contained no exception for the health of the pregnant person, a feature that would doom it before the a majority of the Court. Anti-choice advocates took immediate notice of why the law had failed and regrouped, passing the federal Partial-Birth Abortion Ban Act of 2003. That law was modeled almost entirely on the unconstitutional Nebraska statute with one difference: It contained a small exception for when the pregnant person’s health was in danger. Four years later, the Supreme Court upheld the new version of the ban in Gonzales after striking the nearly identical one in Stenberg.

In both cases, however, Justice Kennedy voted to uphold the bans, siding first with the dissent in Stenbergand then the majority in Gonzales. In Stenberg, Kennedy authored a dissent deeply critical of the majority for framing the analysis of the constitutionality of the ban from the perspective of an “abortionist” rather than the state’s interest in regulating the medical profession so that it does not become “disdainful” to life, “including life in the human fetus.” In his dissent, he describes the procedure at issue as deserving of “the most severe moral condemnation, condemnation reserved for the most repulsive human conduct.”

Kennedy’s condemnation wasn’t limited to only “partial-birth” abortions, however. He extended it to all D and E procedures. He then picked this thread up again in his majority opinion in Gonzales, writing, “No one would dispute that, for many, D and E is a procedure itself laden with the power to devalue human life.”

Still, although Kennedy condemned D and E abortions generally, the Court’s decision to uphold the federal ban pre-viability was based in part on the availability of non-intact D and E abortions around the country—precisely the procedure under attack right now in Texas’ Whole Woman’s Health v. Paxton.

Earlier this year, Texas lawmakers passed their D and E ban as part of SB 8, a piece of Frankenstein legislation stitching together as many anti-abortion provisions as possible. Reproductive rights advocates challenged the D and E provision in the law almost immediately, arguing it was an unconstitutional pre-viability ban because the result of the measure would be to effectively cut off second-trimester abortion care entirely. Because D and E abortions happen when a patient is between 15 to 20 weeks pregnant and the fetus not viable, the law basically bans abortion before viability. Texas lawmakers defended the measure, arguing that while the law did target the most common form of second-trimester abortion, other, less common, methods of terminating a pregnancy in the second trimester exist. Therefore, they said, the law was not a pre-viability ban. Furthermore, the state argued, the ban was a legitimate exercise of its interest in promoting fetal life.

In August, a federal district court agreed with the plaintiffs that the measure was an unconstitutional pre-viability ban and temporarily blocked the measure from taking effect. Last week’s decision made that temporary order permanent.

The opinion issued by Judge Lee Yeakel blocking the measure is as airtight as reproductive rights advocates could ask for. Yeakel, a President George W. Bush appointee, is the same judge that ruled against the state of Texas again and again in Hellerstedt. Similar to Hellerstedt, in Paxton, Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to chose. That is because, Yeakel determined, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions.

The state of Texas immediately appealed the decision. If history is any guide, the Fifth Circuit Court of Appeals will find a reason to side with the state and overturn the order blocking the ban. And if it doesn’t, attorneys for Texas will push the Roberts Court to do so.

There is at least one good reason, however, for the Roberts Court to stay out of this fight. At least seven states other than Texas have enacted D and E bans. And in those states where the laws have been challenged, federal and state courts have been unanimous in finding them unconstitutional. That means there’s no legitimate legal disagreement as to the constitutionality of D and E bans, which means there’s no dispute for the Court to settle.

But anti-choice activists didn’t spend all that money getting Associate Justice Neil Gorsuch appointed to the bench to have the Court pass on a fight like the one in Paxton, though. Given the facts that Justice Samuel Alito is the justice who refers petitions from the Fifth Circuit to the Supreme Court for review, and Justices Clarence Thomas and John Roberts are reliably anti-choice votes along with Gorsuch, anti-choice advocates will likely have four votes to take the case on. The question is whether they have the fifth vote from Justice Kennedy to win.

In Hellerstedt, Justice Kennedy voted with the majority to strike the Texas abortion restrictions. He didn’t author any separate opinion, so presumably he agreed with Justice Stephen Breyer’s opinion that made it very clear that lawmakers must have evidence and data to back up claims that the abortion restriction they are advancing actually serves the state interest they assert—in that case, advancing patient safety. In Paxton, Texas has again failed to offer any evidence to support its reasoning, so hopefully Kennedy would vote to strike the D and E ban as he did the admitting privileges and surgical center requirements. But again, in Stenberg and Gonzales, he made it very clear he supports the power of the state to regulate away pre-viability abortion procedures in the name of advancing its interest in fetal life.

Overall, the D and E bans could force Kennedy to decide which he values more: evidence-based lawmaking or the power of the state to promote fetal life.

There is another lesson to draw from Stenberg, Gonzales, and the fight over “partial-birth” abortion. Anti-choice advocates started that fight in the states, and when they lost, they evolved their strategy and advanced it through federal legislation. Should the Court take Paxton or a similar case and rule against the bans, there is every reason to think anti-choice advocates will follow the Stenberg/Gonzales playbook and advance a slightly revised federal version.

Those are a lot of “ifs.” And by their nature, cases take time. Probably long enough, in fact, for a Supreme Court justice or two to retire. If conservatives get their way, that will lead to a Court willing to undo abortion rights altogether.

https://rewire.news/article/2017/11/27/second-trimester-ban-supreme-court/