The Stealth War on Abortion
On the morning of December 11th, Gretchen Whitmer, the charismatic 42-year-old minority leader of the Michigan Senate, stood before her colleagues in the Statehouse in Lansing, and told them something she’d told almost no one before. “Over 20 years ago, I was a victim of rape,” she said. “And thank God it didn’t result in a pregnancy, because I can’t imagine going through what I went through and then having to consider what to do about an unwanted pregnancy from an attacker.”
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No one in the gallery said a word. Instead, with just hours to go before it broke for Christmas recess, Michigan’s overwhelmingly male, Republican-dominated Legislature, having held no hearings nor even a substantive debate, voted to pass one of the most punishing pieces of anti-abortion legislation anywhere in the country: the Abortion Insurance Opt-Out Act, which would ban abortion coverage, even in cases of rape or incest, from virtually every health-insurance policy issued in the state. Women and their employers wanting this coverage will instead have to purchase a separate rider – often described as “rape insurance.” Whitmer, a Democrat known as a fierce advocate for women’s issues, described the new law as “by far one of the most misogynistic proposals I’ve seen in the Michigan Legislature.”
And it’s not just Michigan. Eight other states now have laws preventing abortion coverage under comprehensive private insurance plans – only one of them, Utah, makes an exception for rape. And 24 states, including such traditionally blue states as Wisconsin and Pennsylvania, ban some forms of abortion coverage from policies purchased through the new health exchanges. While cutting insurance coverage of abortion in disparate states might seem to be a separate issue from the larger assault on reproductive rights, it is in fact part of a highly coordinated and so far chillingly successful nationwide campaign, often funded by the same people who fund the Tea Party, to make it harder and harder for women to terminate unwanted pregnancies, and also to limit their access to many forms of contraception.
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All this legislative activity comes at a time when overall support for abortion rights in the United States has never been higher – in 2013, seven in 10 Americans said they supported upholding Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion. But polls also show that more than half the country is open to placing some restrictions on abortion: Instead of trying to overturn Roe, which both sides see as politically unviable, they have been working instead to chip away at reproductive rights in a way that will render Roe’s protections virtually irrelevant.
Since 2010, when the Tea Party-fueled GOP seized control of 11 state legislatures – bringing the total number of Republican-controlled states to 26 – conservative lawmakers in 30 states have passed 205 anti-abortion restrictions, more than in the previous decade. “What you’re seeing is an underhanded strategy to essentially do by the back door what they can’t do through the front,” says Nancy Northup, president and CEO of the Center for Reproductive Rights, which is currently litigating against some of the new anti-choice laws. “The politicians and organizations advancing these policies know they can’t come right out and say they’re trying to effectively outlaw abortion, so instead, they come up with laws that are unnecessary, technical and hard to follow, which too often force clinics to close. Things have reached a very dangerous place.”
Last June, the right’s stealth attack on abortion rights became front-page news, when, in an attempt to block a vote on a sweeping omnibus bill that included 20 pages of anti-abortion legislation, Texas state Sen. Wendy Davis embarked on an 11-hour-plus filibuster in the Texas Statehouse. Wearing rouge-red Mizuno running shoes and an elegant string of pearls, the blond, blue-eyed Davis, a onetime single mother and a graduate of Harvard Law School, became an overnight symbol of what, in many states, is a growing popular resistance to the conservative anti-choice agenda. But Davis’ filibuster failed to prevent the Texas Legislature from holding a special session in July to pass the bill, despite widespread public opposition.
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This was the latest failed battle to protect reproductive rights in a state that in the past few years has passed some of the harshest abortion restrictions in the country. Thanks to the cumulative impact of Texas law, a woman seeking to terminate a pregnancy must receive pre-abortion counseling to advise her of the supposed physical and emotional health risks, undergo an ultrasound and view an image of her fetus as well as hear it described by her doctor, and then, in most cases, wait another 24 hours before having the procedure. This assumes she can even find a clinic to go to. Women’s-health centers have been shutting their doors all over the Lone Star State since 2011, when, in a specific attempt to defund Planned Parenthood – which operated only a portion of the state’s women’s-health clinics – the Texas Legislature cut the funding to family-planning clinics by two-thirds, eliminating access to low-price contraception and other health services like breast exams and cancer screenings for more than 155,000 women. With the passage of the new restrictions last summer, a third of Texas’ remaining clinics announced they’d have to close or offer fewer services. If additional measures go into effect this September, it could mean potentially leaving just six clinics offering abortions in a state of 26 million people, all of them in urban areas, and none in the entire western half of the state.
Much of the public outrage in recent years has revolved around extreme measures, like proposed “personhood amendments” that would have outlawed abortion outright, and banned many common forms of birth control, stem-cell research and in-vitro fertilization. But the anti-abortion movement’s real success has been in passing seemingly innocuous regulations known as TRAP laws (“Targeted Regulations of Abortion Providers”), which are designed to punish abortion providers by burying them in mountains of red tape, and, ultimately, driving them out of business.
Twenty-six states, including Texas, have laws on their books requiring that abortion clinics become mini surgical centers, a costly proposition that would require clinics to widen hallways, expand parking lots, modify janitorial closets or install surgical sinks and pipelines for general anesthesia – regulations most providers say are unnecessary. Four states currently (and four more may soon) require that the doctors performing abortions have admitting privileges at local hospitals, which applies even in places where the nearest hospitals oppose abortion or are simply too far away to meet the state’s distance requirement. Sixteen states restrict medication-induced abortion; in 39 states, only licensed physicians – not their physician’s assistants or nurse practitioners – are permitted to hand out the drug. Fourteen states ban its use via telemedicine, which is often the only way a woman in a rural part of the country can consult with her doctor.
“It’s a brilliant strategy to package these laws as just making sure abortion is ‘safe,’ [and] in many states, they’ve been able to sell it that way,” says Eric Ferrero, VP of communications at Planned Parenthood Federation of America. But abortion is already safe. The mortality rate for abortions is less than .67 per 100,000 procedures. By comparison, the mortality rate for colonoscopies, also commonly performed in outpatient clinics but not subject to similar restrictions, is about 20 out of 100,000.
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.
Of the 30 states that have been actively pursuing the anti-abortion agenda, most, like Michigan, are also anti-union right-to-work states, where the alliance of powerful donors and corporate interests has been steadily working to change the political game. Thanks to the 2010 Citizens United decision, conservative dark-money groups have spent millions on political campaigns, much of it impossible to trace. “There’s a lot of money behind this effort, and you have to ask, ‘Why is that?'” says the Center for Reproductive Rights’ Nancy Northup. “It’s been apparent to me for a long time that this is part of a huge, larger agenda, and we’re just the canary in the coal mine. What this is really about is democracy.”
In Michigan, Amway scion Richard “Dick” DeVos, the 58-year-old former Republican candidate for governor, is a force behind what he refers to as the state’s “freedom to work” legislation, which passed in 2012 despite a 12,000-person protest that locked opponents out of the state Capitol. DeVos has also funded a variety of religious-right groups, including Right to Life of Michigan and the Michigan Family Forum, which supported the state’s “rape insurance” bill.
A similar scenario has played out in North Carolina, where millionaire Art Pope has single-handedly changed the face of state politics by pouring millions into state races since 2010, which gave Republicans control of the Legislature and also delivered the governor’s mansion to the GOP in 2012. Since then, North Carolina has enacted some of the nation’s harshest voter-suppression laws, as well as a sweeping package of TRAP laws that drew national attention last year, when lawmakers attempted to sneak it past the public’s scrutiny by first attaching it to a bill ostensibly banning Shariah law, and then attaching it to a bill regulating motorcycle safety. Despite weekly protests, the “motorcycle-vagina bill,” as abortion-rights advocates dubbed it, was passed and signed into law in July, threatening the state’s 16 abortion clinics.
Unlike DeVos, a longtime Christian conservative, Pope calls himself a libertarian and has served as a national director of the Koch brothers’ Americans for Prosperity. Koch money, through various “social welfare” organizations it supports, has helped fund a significant part of the pro-life agenda, even though the Koch brothers, like Pope, have never taken a personal interest in reproductive politics, and David Koch has even stated his support for marriage equality. “They know the policies they want wouldn’t be attractive to enough people unless they also included the social-conservative policies, so what’s happened is they’ve merged the social and economic agenda into a single product,” says Rachel Tabachnick, an associate fellow at the progressive think tank Political Research Associates. “This is not new, it’s a project that goes back decades,” she says, “and it’s one in which the war on reproductive rights is a non-negotiable part of the deal.”
Connecting the fiscal and social agendas into a single, conservative “worldview” has been the goal of conservatives since the Reagan era. To outsiders, the Tea Party, with its focus on cutting taxes and spending, might seem to rule the party. But looks can be deceiving. Evangelicals, long outsiders in the GOP power structure, now hold large sway in the party through organizations like the Heritage Foundation and the Family Research Council. “I’d say it’s kind of baked into the cake,” Ralph Reed, the head of the Faith and Freedom Coalition, said recently on MSNBC.
“This is what progressives don’t understand,” says Tabachnick. “The public is so obsessed with the big battle between Democrats and Republicans that they miss the larger philosophical and legal underpinnings developed by this permanent think-tank structure that has been working behind the scenes for years. And now they’re in a place where regardless of what’s happening with the Supreme Court, they are ready to maximize every opportunity because of the extremely well-funded partnership between the free-marketeers and the religious right that’s helping to overhaul the country from the bottom up.”
This union has been the key to not just the success of pro-life legislation, but also the avalanche of other model legislation to defeat the federal government promoted by groups like ALEC, which receives heavy backing from the State Policy Network, the free-market coalition of “mini-Heritage Foundations,” with branches in every state. Though they maintain their focus is strictly economic, many lawmakers who serve as state ALEC chairs also happen to be the leading proponents of anti-abortion legislation. At an ALEC conference last August in Chicago, Wisconsin Democrat Chris Taylor, a state senator, recalls that AUL had a prominent booth in the exhibition hall. “The relationship isn’t formal,” she says, “but they are clearly working in conjunction to help change the face of the legislatures.”
The good news is that in states where some of the most extreme anti-abortion legislation has been proposed, the public is fighting back. On Monday, January 6th, the Fifth Circuit Court of Appeals began hearing arguments from pro-choice organizations on why the Texas laws requiring physicians to have admitting privileges and regulating how they can prescribe abortion-induced drugs were unconstitutional. And Wendy Davis, whose filibuster catapulted her to national prominence, is now running for Texas governor, hoping to reverse two decades of Republican control. In Albuquerque, New Mexico, voters rejected a 20-week ban that would have amounted to the first municipal abortion restriction in the country. But the victory, decided by 55 percent of Albuquerque voters, only came after abortion-rights groups poured close to $700,000 into defeating the measure, outspending anti-abortion organizations by more than three to one.
“Republicans are alienating women voters with these policies, and the number of women who are running and winning at the state and federal levels proves that women reject this regressive agenda,” says Stephanie Schriock, president of Emily’s List, which works to elect pro-choice Democratic women to state and federal offices. But while some on the left think the right may have overplayed its hand, others see these defeats as simply incidental. “This type of thinking is how progressives delude themselves,” says Tabachnick. “The problem with the left is that it pretty much fights every battle from scratch. But the right is playing chess: They are willing to lose a pawn here or there to achieve the larger goal.”
This story is from the January 30th, 2014 issue of Rolling Stone.