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The Stealth War on Abortion

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This incremental approach to eviscerating abortion rights grew out of the recognition at the highest levels of the pro-life movement that their previous message – equating abortion with murder – and the accompanying extremist tactics weren't working. "Twenty years ago, we'd storm a clinic and close it down for a day – and then I'd get thrown in jail," says Troy Newman, the president of Operation Rescue, the infamous Kansas-based anti-abortion group that made its name during the 1980s and early 1990s by blocking the entrances to clinics and holding noisy sit-ins – a practice Congress outlawed in 1994. Other tactics, which ranged from handing out pamphlets emblazoned with the image of aborted fetuses, to "naming and shaming" the friends and associates of abortion providers, proved equally unfruitful. "All of that just made the community angry – at me, at the clinic," says Newman. "And I hated that. I don't want to wave pictures on the street just to piss people off. I want to win." So Newman stopped the overt harassment, and settled on a new plan to push for TRAP laws and document alleged abuses at abortion clinics and report them to the authorities. Today, there are only four clinics offering abortions in all of Kansas, which, like Michigan, has its own version of the "rape insurance" law, and has also imposed myriad other restrictions, including the criminalization of abortion after the fifth month of pregnancy. The so-called "20-week ban" violates one of Roe's central provisions, that a woman has the right to an abortion until the fetus is viable outside of the womb – roughly 24 weeks by today's medical standards. Nonetheless, nine states currently impose the ban, basing it on a theory that is widely disputed by medical groups, that a fetus is able to feel pain at five months.

Polls have consistently shown that support for abortion after the first trimester drops precipitously – 64 percent of the country opposes it during the second trimester, and 80 percent opposes it during the third trimester. This has allowed pro-life groups to strike a note that might on the surface seem reasonable, and as Newman points out, "once you start enforcing a second-trimester ban, the camel's nose is in the tent." Arkansas has banned abortion after 12 weeks. North Dakota recently passed a law to criminalize abortion after six weeks, a point when many women don't even realize they're pregnant.

Two Washington-based advocacy groups, the National Right to Life Committee and Americans United for Life, are responsible for much of the model legislation restricting abortion, as well as for the grassroots organizing that's been needed to pass it. Of the two, AUL, which describes itself as both the legal arm and "intellectual architect" of the movement, is chiefly responsible for the most recent and highly successful under-the-radar strategy.

"We don't make frontal attacks," AUL president and CEO Charmaine Yoest told the National Catholic Register in 2011. "Never attack where the enemy is strongest." Some abortion-rights advocates have compared AUL to the American Legislative Exchange Council, the secretive corporate-funded organization responsible for many of the country's voter-suppression and "Stand Your Ground" laws. Each year, AUL sends state and federal lawmakers across the country a 700-page-plus "pro-life playbook," Defending Life, which it describes as "the definitive plan for countering a profit-centered and aggressive abortion industry, while laying the groundwork for the ultimate reversal of Roe." Among its annual features is a 50-state "report card" on the state of anti-abortion legislation, as well as a step-by-step guide, Yoest says, to help lawmakers "understand that Roe v. Wade doesn't preclude them from passing common-sense legislation."

While "each state has a different scenario," says Yoest, AUL's central strategy is to make women – not the "unborn" – the focal point of its efforts. In the past few years, AUL has drafted numerous bills that claim to protect women, recently including them in a new package it has dubbed the "Women's Protection Project." Based on misleading facts and dubious medical information, the package is full of model legislation with names like the "Parental Involvement Enhancement Act" (which requires parental notification or consent for underage abortions), the "Abortion Patients' Enhanced Safety Act" (imposes draconian regulations on abortion providers), the "Women's Health Defense Act" (designed to protect women from the supposed physical and emotional health risks posed by later-term abortion) and the "Women's Right to Know Act," perhaps the most punishing measure in the package. To make it possible for a woman to give her "informed consent" before terminating a pregnancy, it requires that she know "the probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed," justifying a mandatory ultrasound.* "Forced ultrasounds tell a woman exactly what she already knows – that she's pregnant," says Ilyse Hogue, president of NARAL Pro-Choice America. "These laws aren't intended to provide new or useful information; they are intended to force more burden and shame on women who are simply exercising a constitutional right."

In 2012, Arizona became the first state to pass a version of the Women's Health Defense Act, one of 65 "life-affirming" laws that AUL claims credit for in the past three years. According to the ACLU, during the 2013 legislative session AUL worked in at least 27 states to, among other things, ban later-term abortion in North Dakota, further limit access to abortion care in Kansas, tighten regulations on parental-consent laws in Arkansas and Montana, and restrict access to medication abortion in Mississippi, a state where unnecessary regulation has already shut down all but one abortion clinic.

While all of this speaks to the clever tactics of anti-abortion groups, it also speaks to the new culture of the Republican Party. Nowhere has this been more apparent than Michigan, where gerrymandering combined with term limits have handed the GOP a hammerlock on the state Legislature, at least one-third of whose members are freshmen during any given term. Because of this, abortion opponents like the National Right to Life Committee's Michigan affiliate now have the kind of broad political influence they might have only dreamed of a few years earlier. "Right to Life of Michigan is looked upon by most Republican legislators – and probably some Democratic legislators – as one of the most coercive, if not the most coercive lobbying group in the state," says former U.S. congressman Joe Schwarz, a self-described pro-choice Republican who served 16 years in the Michigan Statehouse, from 1987 to 2002. "The amount of pressure Right to Life both directly and indirectly puts on legislators in Michigan is considerable. And some legislators aren't exactly profiles in courage when it comes to standing up to these guys."

Right to Life of Michigan's president, Barbara Listing, who also sits on the board of the national organization, is known as a savvy operator who has wielded power in the Michigan Statehouse for more than 20 years. As far back as the early 1990s, recalls former Republican legislator Shirley Johnson, Listing would show up in the gallery and tell pro-life legislators how to vote. "We'd be voting on an amendment, something that those members who vote Right to Life did not have the opportunity to read, and they would look right up there and she'd give them a thumbs up or thumbs down," says Johnson. "Most of us were shocked, but we got used to it."

Michigan's "rape insurance" law was written by Right to Life, which had proposed it twice before – most recently in 2012. Two governors, including Republican Rick Snyder, vetoed the bill – Snyder, who opposes abortion, nonetheless said he felt the bill "went too far." So Right to Life employed a rarely used provision in the state constitution that allows for a citizens' initiative to bring a bill to the Legislature, provided a certain percentage of the electorate supports it. Michigan abortion opponents spent four months gathering the requisite 258,088 signatures to reintroduce the insurance ban, skirting the veto entirely. "We used the democratic process and we won," says Right to Life of Michigan spokeswoman Rebecca Kiessling.

After the vote, says Gretchen Whitmer, a number of her Republican colleagues approached her to say they wished they'd had the courage to vote against the bill. "That was a tough thing to hear," she says. "Not one Republican stood up and defended what they were doing – not one. Every one of them will get up and defend a business tax cut. Not one of them defended this action."

*A change has been made to the language of this section to more accurately characterize the specific requirements in the AUL's model legislation.

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