3-24-21 The radical future of the pro-life movement
For the past several decades, the progressive nightmare on abortion rights has involved a conservative majority on the Supreme Court overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). This would immediately return the issue to states, where many legislatures would ban the procedure, leaving women's reproductive rights secure only in the most liberal regions of the country. But this is by no means the most radical pro-life scenario. Conservatives now have a 6-3 majority on the high court. We don't yet know if these justices are willing to strip abortion rights from the federal Constitution, sending decision-making back to the states for the first time in 48 years. But among conservative intellectuals, this is now the milquetoast option, with another line of argument fast gaining ground. The more extreme argument goes like this: The 14th Amendment gives "equal protection of the laws" to all persons. Genetics as well as ultrasound technology tell us that fetuses and even embryos are human beings and hence persons. The 14th Amendment therefore protects unborn life, rendering every state law permitting abortion unconstitutional. Instead of sending abortion back to the states, pro-lifers should thus be working to convince conservative justices to use the equal protection clause to ban abortion outright, from conception on, throughout the entire United States. That is where the pro-life movement is headed — and the rest of the country better be ready for it. Now, to be clear, a Supreme Court decision along these lines is nowhere in sight. As far as I know, none of the current justices affirm this reading of the equal protection clause. Yet it is undeniable that pro-life debate has shifted in this direction over the past couple of decades, just as the Republican Party has moved further right and become less interested in trying to win electoral majorities. If both trends continue, the judges who emerge in the future from the conservative movement's formative legal institutions are likely to be much more open to such claims than the justices currently serving on the high court, whose views were formed decades ago during a very different political moment. To get a sense of the long-term trajectory of conservative constitutionalism, consider the ideas and career of Robert Bork. Thirty-four years ago, Bork was considered so far right that his nomination to the Supreme Court by Ronald Reagan went down to defeat in the Senate when six Republicans joined with 52 Democrats to oppose him. Bork's position on abortion — that Roe was a jurisprudential travesty that deserved to be overturned so that the issue could once again be decided democratically at the state level — is quite likely the view of all six conservatives on the high court today. The only question is whether these justices are willing to break from 48 years of precedent to overturn Roe and Casey outright, or whether they would prefer, as a matter of institutional restraint, merely to allow states to nibble away at the margins, enacting piecemeal restrictions on abortion a little at a time, leaving Roe and Casey technically intact but increasingly neutered. The story of how Bork's position moved from unacceptably radical in 1987 to dominating the nation's highest court by the end of the Trump administration is an important one. A revealing chapter in that story took place when I worked as an editor at First Things magazine in the early 2000s. Back in 2002, a little-known assistant professor of political science at St. Ambrose University in Davenport, Iowa, named Nathan Schlueter pitched an article making the case that the equal protection clause of the 14th Amendment applied to fetuses, rendering abortion unconstitutional in all cases.
3-6-21 The post-Roe abortion fight has already begun
A victory for abortion rights in New Mexico challenges assumptions — and points a way forward. Abortion rights activists are already preparing for a future without Roe. "Looking at the Supreme Court it's not a matter of if Roe v. Wade is undermined or challenged or repealed, but a matter of when," New Mexico State Rep. Micaela Lara Cadena told The Week. Last week in Cadena's state, Gov. Michelle Lujan Grisham signed the Respect New Mexico Women and Families Act, repealing a state-level ban on abortion that predated Roe. Activists said overturning the currently unenforceable law, which would have been reactivated if Roe is overturned, is essential to preserving abortion rights. Now, the organizing around the bill could be a model to other states. And the victory challenges some assumptions about who will drive the next phase in the movement to protect reproductive rights. New Mexico is far from the only state where abortion access relies on the presence of Roe. Eight other states have pre-Roe abortion bans, according to the Guttmacher Institute. Additionally, 10 states have so-called trigger laws that would automatically ban abortion if Roe is overturned, meaning almost half of states would see an immediate criminalization of abortion. Passing state-level protections, therefore, is essential to insure against an eventual upheaval of Supreme Court precedent. In New Mexico, it was the result of years-long campaigns led by women of color. Two years ago, abortion rights activists similarly attempted to repeal the ban but ultimately failed. At the time, critics and supporters of the attempt alike cited the state's large Hispanic and Catholic populations as culturally opposed to abortion rights. Yet, in fact, 74 percent of rural New Mexicans agreed "personal decisions about abortion need to remain with New Mexican women, their families, and their medical providers," according to a survey by Forward Together and Latino Decisions. Nicole Martin is the co-founder and sex educator at Indigenous Women Rising, and was a leader of both campaigns to repeal the ban. "We made a statement that Black and indigenous, and people of color, migrating relatives, people of faith, we can all trust that pregnant people can make complex decisions for themselves," said Martin. When the 2019 bill failed, it was, in part, because Democratic state senators from the majority joined Republicans in voting against the bill. Five of those Democrats lost their 2020 primaries. Rep. Cadena believes they lost their seats because of their votes against the repeal. "It really was assumed wrongly, from the left to the right, from feminist pro-choice banner waving allies to preachers in the local churches, everybody said, ‘New Mexico is too Hispanic and too Catholic to get this right,'" according to Rep. Cadena. She believes rethinking which demographics do and do not support leaving healthcare decisions to individuals is key for organizing for better access on a state level. Martin agreed that communities of color did not come to support the repeal despite their identities. "We're leading with our community values as Indigenous people and our kinship protocols, extending compassion and care to our relatives." New Mexico's repeal is important for ensuring access for nearby states as well. New Mexico state Department of Health data shows nearly 20 percent of abortions were for out-of-state patients in 2014. In the seven years since that research, neighboring Texas has repeatedly attempted to pass limits on the legal procedure including banning insurers from covering abortion in comprehensive health plans and even using the coronavirus pandemic as an excuse to stop all abortions. The Texas state legislature is back in session, and despite the ongoing pandemic and recent power outages, the statehouse is introducing new restrictions on abortion care including new trigger laws anticipating the overturning of Roe.
1-29-21 Biden allows US aid for abortion providers and expands Obamacare
US President Joe Biden has reversed a ban on federal funds going to international aid groups that perform or inform about abortions. He said the ending of the so-called Mexico City Policy reverses former President Trump's "attack on women's health access". The memo orders a review of a Trump-era policy blocking funding for US clinics that offer abortion referrals as well. Mr Biden also signed an edict expanding the Obamacare insurance programme. "I'm not initiating any new law, any new aspect of the law," he said in the White House Oval Office on Thursday, responding to criticism that he was governing by executive order, rather than congressional legislations. "There is nothing new that we're doing here other than restoring the Affordable Care Act ... to the way it was before Trump became president," he added. The Mexico City Policy was first enacted by Republican President Ronald Reagan in 1984 and has been repeatedly renewed by Republicans and cancelled by Democrats. For decades, the US has barred money from being spent on overseas abortions but the Mexico City policy takes that a step further. It prevents federal funds from going to organisations that provide abortions, abortion counselling or advocate for the legal right to abortion. The programme was expanded under Mr Trump, who banned funds from going to non-governmental organisations (NGOs) that themselves provide funding for abortion groups. In a statement earlier, the White House said Mr Biden was issuing the presidential actions "to support women's and girls' sexual and reproductive health and rights in the United States, as well as globally". A report by the US Government Accountability Office released last year found that in 2017, NGOs were unable to receive around $153m (£112m) because they chose not to cut back on abortion programmes. The report found 54 occasions in which NGOs did not accept US funds due to the policy.
1-28-21 Poland enforces controversial near-total abortion ban
A controversial near-total ban on abortion in Poland has taken effect, the government announced, with enforcement from midnight on Wednesday. A court ruling allowing the prohibition prompted huge protests when it was issued in October. Abortion is now allowed only in cases of rape or incest or when the pregnancy threatens the life of the mother. The majority of Poles oppose a stricter ban and demonstrations took place in Polish cities on Wednesday evening. Activists have called for large street protests on Thursday and Friday in the capital Warsaw. The October ruling by the Constitutional Court found that a 1993 law allowing abortion in cases of severe and irreversible foetal abnormalities was unconstitutional. In 2019, 98% of abortions were carried out on those grounds, meaning that the ruling effectively banned the vast majority of pregnancy terminations. The ruling provoked outrage from supporters of the right to abortion. But Poland's conservative government, which has strong ties to the country's powerful Catholic Church, supports the ruling. The court justified its ruling on the grounds that "an unborn child is a human being" and therefore it deserves protection under Poland's constitution which ensures the right to life. Following the announcement that the ruling would now be enforced, groups defied coronavirus restrictions to protest in Warsaw. Waving red flares and LGBT flags, some carried placards reading "Free Choice, Not Terror". "I want us to have our basic rights, the right to decide about our bodies, the right to decide what we want to do and if we want to bear children and in what circumstances to have children," one protester, Gabriela Stepniak, told Reuters news agency. The mayor of Warsaw Rafal Trzaskowski tweeted his opposition to the move, calling on women to reject the decision on the streets. Leaders of the nationwide Women's Strike movement that opposed the ban wore green headscarves, in a nod to Argentina's women's movement that successfully campaigned to legalise abortion.
1-22-21 Honduran abortion law: Congress moves to set total ban 'in stone'
Parliament in Honduras has initially approved a bill that will make it virtually impossible to legalise abortion in the country. The new measure will require at least three-quarters of Congress to vote in favour of modifying the abortion law, which is among the strictest in world. Honduras forbids abortion under any circumstance, even rape or incest. Its latest move comes in response to Argentina legalising abortion last month. Across Latin America, there has been increased pro-choice campaigning, known as the "green wave", based on the colour worn by protesters. The new legislation in Honduras hinges on an article in the constitution that gives a fetus the same legal status of a person. Constitutional changes have until now been permitted with a two-thirds majority, but the new legislation raises that bar to three-quarters within the 128-member body. The measure still needs to be ratified by a second vote. However, support was clear on Thursday: with 88 legislators voting in favour, 28 opposed and seven abstentions. Honduras has a stanchly conservative majority, which referred to the measure as a "shield against abortion". "What they did was set this article in stone because we can never reform it if 96 votes are needed [out of 128]", opposition MP Doris Gutiérrez told AFP news agency. Mario Pérez, a lawmaker with the ruling party of President Juan Orlando Hernandez, formally proposed the change last week, calling it a "constitutional lock" to prevent any future moderations of the abortion law. "Every human being has the right to life from the moment of conception," said Mr Pérez. Ahead of the vote, UN human rights experts condemned the move, saying in a statement: "This bill is alarming. Instead of taking a step towards fulfilling the fundamental rights of women and girls, the country is moving backwards."
1-9-21 Covid: Locked-down women turn to pills amid Malta abortion ban
Catholic Malta has the strictest ban on abortion in the EU, but during the pandemic more Maltese women have been ordering abortion pills from abroad, unable to travel because of the lockdown. Veronica - not her real name - was among them. "It was a big burden for me. I already have two kids with learning difficulties. I came off the [contraceptive] pill, as the doctor suggested I switch to an IUD for health reasons. I was waiting for the appointment, but Covid came and cancelled all the hospital appointments." Not long after that Veronica got pregnant. "I had to decide what is best for me and the children," she says. "The best for my health, the best financially… plus the father immediately told me to abort." Abortion is completely illegal in Malta, even if the woman's life is at risk. Without the option of travelling abroad, Veronica didn't know what to do. She contacted local women's rights activists, who put her in touch with a foreign NGO. It was through them that Veronica was able to safely get hold of abortion pills, which can be taken up to the 12th week of pregnancy. Abortion is a crime in Malta, punishable by up to three years' prison for the woman herself and anybody who may have assisted her. An estimated 300-400 Maltese women travel abroad every year to get an abortion, usually to the UK. But pandemic travel restrictions have made this option far less viable. The Abortion Support Network (ASN) is a UK-based charity offering information and funding to cover the cost of travel and accessing abortion. It had 110 Maltese requests in 2020 - up from 75 the previous year, when it first opened up services to the Maltese. According to ASN founder Mara Clarke, the pandemic has been a social leveller. "When they close the airport and you live on an island, suddenly it gives everybody a taste of what it means to live in a place where there is a horrible abortion law." It is not clear if the rise in requests is down to increased numbers of women wanting abortions, or increased awareness that help is out there.