Right Positions D&E Bill as the Next Big Challenge to Roe

Both anti-abortion and pro-choice advocates rally in front of the Supreme Court during the Whole Woman’s Health v. Hellerstedt case in June 2016. A lawsuit challenging Texas’s new ban on Dilation and Evacuation is likely to follow the same legal path to the Supreme Court. Photo: Victoria Pickering via Flickr.

On November 2, federal Judge Lee Yeakel began hearing arguments in Whole Woman’s Health v. Paxton, a lawsuit challenging Texas’s new ban on Dilation and Evacuation (D&E) abortions. Yeakel’s hearing is just the first step in a process that is likely to mirror much of the same legal path to the Supreme Court as Texas’s last major abortion case, Whole Woman’s Health v. Hellerstedt. And it could potentially leave thousands of pregnant people across the U.S. in rural and red states unable to access the safest means of terminating a pregnancy after 14 weeks, or in some cases accessing an abortion at all.

Since 2010 anti-abortion legal and political action groups such as Americans United for Life [AUL] and National Right to Life Committee [NRLC] have successfully introduced model legislation on a state-by-state basis throughout the U.S. Their goal? To whittle down abortion access bit by bit on a regional basis while at the same time provoking court challenges that could eventually make it to the Supreme Court and potentially overturn Roe v. Wade.

The 2010 midterm Republican sweep in state legislatures created the perfect opportunity for a course change in ending legal abortion. While a small portion of the anti-abortion movement continued to pursue total abortion bans, the majority moved into a state-based, incremental approach throttling the ability to obtain an abortion through mandatory waiting periods, clinic closures in response to medically unnecessary licensing rules, blocking of telemed abortion procedures and limits on how medication abortions could be performed. Together, the new laws were intended to place so many roadblocks to a legal termination that abortion would become inaccessible for many despite remaining technically legal in practice. Then when those laws would be challenged in multiple states, they would yield the lower court rulings needed to have a case heard by the Supreme Court.

Although the most recent attempt was unsuccessful, it is just the first of many to follow this pattern. Now, abortion opponents expect a D&E ban to accomplish what mandatory admitting privileges and clinic regulations could not: an opening to reexamine Roe and reevaluate whether each state should be required to have legal, accessible abortion until the point of fetal viability.

While Hellerstedt was based on the idea of “protecting women” by making clinics and abortions safer, even if the actual effects of those “protections” would close clinics all together, Paxton focuses on the fetus and what the procedure does to a “live” being. The law ignores the patient altogether in favor of a legal argument upholding the state’s alleged interest in promoting pregnancy and birth, treating the fetus as a living person with rights and dignity that must be protected.

Paxton focuses on the fetus and what the procedure does to a “live” being. The law ignores the patient altogether in favor of a legal argument upholding the state’s alleged interest in promoting pregnancy and birth.

“S.B. 8 prohibits dismemberment abortion because it involves the limb-by-limb destruction of a living unborn child, and our society has long recognized dismemberment of living beings as particularly cruel,” Texas Attorney General Ken Paxton writes in his legal briefings. Bill supporters also claim that that the ban would “promot[e] integrity and ethics of the medical profession.” The health, safety, rights or even existence of the lives of pregnant people—the entire justification for the abortion restrictions in Hellerstedt—remain virtually unmentioned in both bills and supporting legal briefs.

The erasure of the effects on those having the abortion is deliberate, especially since the crux of the state’s argument is that this is in fact not a blanket abortion ban at all. Like its predecessor, the intact D&E ban, a D&E can still be performed, they claim, as long as providers have verified that the fetal heartbeat has been stopped prior to the procedure. In essence, this applies the same restrictions as before, but for abortions performed far before the point of viability. Abortion opponents suggest that the use of an injection to stop the heartbeat can be used prior to the abortion itself, satisfying the state’s desire to protect the “dignity” of the unborn while allowing a pregnant person to still receive an abortion. The state brushes aside concerns that an injection—which is already typically used in most later abortions performed close to or past the point of viability—is more difficult to do in smaller, pre-viable fetuses, raising the risk of harm to pregnant patients without adding any benefit other than to assuage the whims of those who oppose abortion.

It will also increase the wait-time before patients can obtain an abortion, by requiring a second ultrasound to confirm there is no heartbeat. “Doing an injection to ensure fetal demise could add another day to the abortion, when patients are already waiting to schedule, then having an initial mandatory ultrasound and waiting 24 hours before the procedure, then returning again to actually have it,” Amy Hagstrom Miller, President and CEO of Whole Woman’s Health, the plaintiffs in the Texas case, told PRA. “These are people who often are already struggling to jump through the hoops to terminate. This just adds one more unnecessary barrier to their ordeal, and one that has no medical benefit.”

When the case inevitably makes it to the Supreme Court, the question will be exactly how much physical effort, financial burden and even medical risk a patient should be reasonably expected to bear in order to protect the “dignity” of a fetus. If the court finds these new requirements constitutional, its decision won’t just affect Texas, but the seven other Southern or Midwest states that currently have their own laws enjoined, creating a block of states patients would need to leave in order to obtain a 15- to 20-week abortion without a multi-day procedure.

That would be a best-case scenario. A positive Supreme Court ruling could also inspire similar federal legislation which, depending on the make-up of Congress and the White House at that time, could mean every state in the nation would eventually be affected, severely restricting, if not eliminating, the ability to access an elective abortion after the first trimester.

Much like similar bills passed in seven other states, Texas S.B. 8 mandates that “fetal demise” must be confirmed before the remains can then be removed from the uterus. The laws so far have been challenged and successfully blocked in four states as representing an unconstitutional ban on abortion prior to viability. Abortion opponents’ best chance for changing that, however, is a path through the highly conservative Fifth Circuit Court of Appeals. To get there, the state first needs Yeakel’s final ruling that Texas’s law is also unconstitutional, which would provide Texas Attorney General Ken Paxton the opportunity to appeal to the Fifth Circuit in hopes that Yeakel will be overruled.

The Fifth can reasonably be called the most conservative and anti-abortion of all circuit courts. There are currently 13 judges on the bench and all but five are Republican nominees. In the 1950s and ‘60s, the Fifth was known for decisions that championed civil rights, but that legacy ended abruptly as the court was stacked with conservative judges, including six appointed by President George W. Bush.

One current justice, Judge Edith Jones, argued during a WWH v. Hellerstedt hearing that forcing a woman to drive 300 miles round-trip for an abortion wasn’t an undue burden since patients could drive 75 miles per hour on the “particularly flat highway.” Another, Priscilla Owen, believes that minors shouldn’t be allowed judicial bypass from parental consent laws for terminating a pregnancy. Meanwhile, there are four current vacancies waiting to be filled by President Donald Trump, whose appointments so far have included a lawyer who represented Hobby Lobby in its suit against the Affordable Care Act and a former clerk for conservative Supreme Court Justice Clarence Thomas. The conservative Fifth may move even further to the Right by the time an appeal is heard—exactly the scenario abortion opponents are hoping for.

Both sides assume that Yeakel will block the D&E ban, and that the state will appeal that ruling to the Fifth, which would reverse the injunction. That would lead the plaintiffs to appeal to the Supreme Court for a final ruling, giving the high court a second, landscape altering challenge to Roe v. Wade within the next few years.

The Supreme Court that hears this case could look quite different than it did in 2016 when they ruled against H.B. 2, Texas’ omnibus abortion bill that shut down most abortion clinics in the state by requiring mandatory hospital admitting privileges and expensive and medically unnecessary building regulations. At a minimum, it will have nine judges on the bench. The seat held by Antonin Scalia, who died in February 2016, was left empty until after the 2016 presidential election. Justice Neil Gorsuch was sworn into office on April 10, 2017. Gorsuch, praised by Susan B. Anthony List President Marjorie Dannenfelser for his opinions in the Hobby Lobby and Little Sisters of the Poor cases, is expected to be as conservative as his predecessor, if not more so. And should any other judge leave the court in the next three years, he or she would likely be replaced by Trump, almost undoubtedly moving the court even further to the Right. So far predictions for potential nominees have included Michigan’s Diane Sykes, who tried to reinstate Wisconsin’s unconstitutional voter ID law; Alabama’s William Pryor, who called Roe “the worst abomination of constitutional law in our history”; and, should Trump go even more conservative, the Fifth Circuit’s own Edith Jones.

Even without another appointment, abortion opponents believe that unlike WWH v. Hellerstedt, WWH v. Paxton can sway centrist Justice Anthony Kennedy to side with the court’s right wing and uphold the ban, despite his decision to side with liberals in 2016. The legislation in question, S.B. 8, was drafted by the National Right to Life Committee to appeal directly to Kennedy, who wrote the 2007 majority opinion for Gonzales v. Carhart —the so-called “Partial-Birth Abortion Ban,” which prohibited “intact” Dilation and Extraction. In Kennedy’s opinion, he wrote that both intact and non-intact D&Es have the potential to “devalue human life” and that many would view it with “the most severe moral condemnation.” In writing the model legislation on which S.B. 8 was based, the NRLC used exactly these words to describe what they claim is the “inhumane” and “gruesome” nature of the D&E procedure itself.

Despite the positive ruling from the Supreme Court in 2016, it’s clear that the right to accessible, safe abortion is actually more at risk than ever before. What was seen as a victory for abortion rights in June—when admitting privileges and ambulatory surgical center requirements were struck down as unconstitutional—takes a different tone following a surprise Republican presidential win, a razor thin loss by Democrats to flip the Senate, and a Supreme Court that has again veered Right and may go even further in that direction over the next few years.

Once again, Whole Woman’s Health is the bellwether testing the court’s devotion to the constitutional right to terminate a pregnancy, and once again Justice Kennedy will be the key figure weighing the rights of a fetus against the rights of the person carrying it. And once more we are hoping for a surprise victory, because a loss this time could bring Roe—and safe, legal abortion—to an end.

 

 

Life’s Work: A Conversation with Dr. Willie Parker

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This article appears in the Fall 2017 edition of The Public Eye magazine.

Dr. Willie Parker. (Photo credit: Chad Griffith courtesy of Atria Books).

In his new book, Life’s Work: A Moral Argument for Choice, Dr. Willie Parker recounts his conversion from a fundamentalist Christian who abhorred abortion to what he calls his current ministry as an itinerant abortion provider working in some of the most underserved areas of the Deep South. It’s a trajectory that helps him make the case that supporters of legal abortion need to reclaim a moral and religious narrative for choice.

It’s a provocative argument in a nation that often equates opposition to abortion with religious faith. But Parker shows how supporters of legal abortion can draw upon faith practices and moral language to make the case for abortion rights. It’s a much-needed corrective at a time when abortion retains its power as the most pivotal wedge issue in modern political history, helping to corral many evangelical and Catholic voters for Donald Trump and once again tempting Democrats to equivocate in an attempt to woo “faith” voters.

Parker’s book shows that while abortion will always be deeply entwined with religious and moral narratives, it’s up to progressives to rewrite those narratives in ways that highlight and respect bodily autonomy and free choice as absolute moral goods. And he makes a compelling argument that the much-lauded “moment of conception” that undergirds so much religious anti-abortion rhetoric is smoke-and-mirrors. Parker challenges us to see beyond the fog of sentimentality and moralizing that allows opponents of abortion to cow even well-meaning progressive women to acquiesce to laws that reduce women’s humanity.

This July, he spoke with Patricia Miller for PRA:

PM: You write in your book that you believe that as an abortion provider you’re doing God’s work and compare yourself to a “twenty-first century Saint Paul, preaching the truth about reproductive rights.” This notion may seem challenging, even heretical, to people accustomed to seeing abortion as a secular practice, not only wholly divorced from people or practices of faith, but often antithetical to them.

WP: Most people are familiar with my identity as a women’s health provider, so they automatically assume that precludes an identity of ministry. But I dispense with the notion that there is a difference between the secular and the sacred. For me, I derive that sense of the sacred from my calling to help women in need realize their God-given gifts and agency. For me, that’s the faithful approach. To talk about my life’s work in these terms is a counter-narrative to all the mischief that is being done in the name of Christianity.

“Abortion isn’t a bad thing or a good thing; it’s a thing.”

The book isn’t a polemic for abortion; it’s a defense of the agency that’s essential to what it means to be human. Abortion isn’t a bad thing or a good thing; it’s a thing. My sense of working through religious custom on reproductive rights is that there is nothing heretical about being a Christian and providing abortion care. Nothing about choosing to terminate a pregnancy puts a woman outside of God’s love.

You write that it’s a lack of scientific understanding of reproduction and the idea of God as “a meddler” that allows people who oppose abortion to turn people of faith against themselves. This is the idea that everything is “God’s will” and that conception and birth are somehow uniquely miraculous and, therefore, not open to human interference. But you note that conception is a “morally neutral, purely biological event” and that a “pregnancy that intimates a baby is no more sacred than an abortion.”

Life’s Work: A Moral Argument for Choice by Dr. Willie Parker (Credit: 37 INK/Atria Books)

This book on a moral argument for choice is my attempt to diffuse the tension between a religious understanding of reproduction and a scientific understanding of reproduction. The fact is pregnancy is a biological process that happens to happen in women. But our culture also has a sentimental notion about the primacy of motherhood in women’s lives. This is why we have made reproductive health a moral issue. There is no other type of healthcare that we force people to ask permission for, often in humiliating and intrusive ways. Imagine if we asked a man to go through what we put women through to get an abortion.

You write that it’s this sacralization of motherhood—not just among people who oppose abortion but also by upper-class liberal women who “became enraptured with the sonogram image they saw at the obstetrician’s office” and plunged full-force into competitive motherhood—that has allowed a widespread maternal conservatism, a “blurry consensus about the ‘sanctity of life’” to take hold.

There is a cultish preference for motherhood embedded into our culture. If motherhood is always the higher value, then even liberal women don’t revolt when laws are enacted that force women to become mothers. And many women in blue states are somewhat insulated from the devastating impact that anti-choice laws can have on Black women and poor women, especially in the South, so they look away.

This strategy isn’t an accident. You note that the battle over choice is largely fought over the bodies of Black women and poor women because they’re the ones who most acutely feel the impact of waiting periods and other laws designed to discourage choice. But you say the real target of these laws is White women and that the “thing that all too many white anti-abortion activists really want … is for white women to have more babies, in order to push back against the browning of America.”

The culture war over abortion is being fought over the lives and bodies of Black women and poor women This can make women of means blind to the significance of poor women controlling their fertility [since wealthier women, and White women, are less likely to directly lose access]. But it’s a sleight of hand. The goal is to limit access [to abortion] for all women, especially White women. Men have to be able to assert control over all women’s fertility because the traditional family remains the repository of White heteronormative culture.

 At the same time, you criticize the “Black genocide” movement launched by White anti-abortion activists to get Black people to see abortion as an “assault by white America on blacks” as nothing more than a sham perpetrated by organizations like Priests for Life and Life Dynamics.

The Black genocide movement is [a] joke, especially its claims that Planned Parenthood is the main perpetrator and Margaret Sanger its primary architect. Looking back to the days of Teddy Roosevelt, it was Eastern Europeans who were the target, not people of color. But the antis want [to] change the terms of the debate and frame abortion as systematic racism by health care institutions against Black people, which means even White women will acquiesce to new limits.

 You hold that one reason the anti-abortion forces have been so successful in the last decade is that “progressive and humanist people have failed to offer a moral, spiritual, ethical, or religious case for abortion rights and so have ceded those arguments to their opponents.”

The antis seized the moral high ground 40 years ago with phrases like “pro-life,” and abortion rights activists haven’t mounted a significant moral or religious counterargument. But every great justice cause has been waged in moral terms. The reset is that abortion is a human rights issue, not a religious issue. Scripture is largely silent about abortion. The “sanctity of life” rhetoric was lifted from the Roman Catholic catechism and grafted onto the Moral Majority to create single-issue abortion voters. We need to start with the premise that reproductive rights are human rights and human rights are the kind of rights that are neither derived from nor provided by the state. Abortion is a process that happens to play out in the bodies of women and is a health and human rights issue for women. Women have a human right to decide their own futures and live their lives as they see fit. Women are entitled to both the negative and positive outcomes that come in a free society.

Some Democratic strategists and politicians like Sen. Bernie Sanders are arguing just the opposite: that the Democratic Party needs to be more accepting of pro-life voters if it wants to be competitive across the country. They argue that supporters of choice need to be “reasonable” and allow the party to bargain away abortion rights like it was any other political chit. Is this the way forward for the Democratic Party?

The Democrats are never going to out Republican the Republicans. This formulaic approach to politics flies in the face of the need to generate genuine social capital. Rather than coming up with a progressive body politic, the Democrats decide if you can’t beat ’em, join ’em. Their political moves are always reactive because they don’t stand for anything, so they latch on to abortion as the factor that made the difference in Republican wins.

“The Democrats are never going to out Republican the Republicans.”

A major plank in the Democratic platform is that the party is pro-woman and pro-reproductive rights. But then they decide that this is “an” issue not “the” issue. The Democratic Party says that women are central to their constituency, but then they equivocate on reproductive control and run the risk of isolating a key part of their base. This is a shameful thing to be talking about after the Women’s March, but if they accommodate the Blue Dog Democratic demands, there is no authenticity around reproductive rights. If the party is now supporting pro-life Democrats, that means we have one-and-a-half parties against reproductive rights and one-half of a party for reproductive rights. No political party is standing firmly for reproductive rights.

 What’s the solution here?

I think there has to be a test of authenticity. Maybe women and people of color have to become single-issue voters—that’s how essential reproductive choice is. For me, reproductive rights are the issue because they determine so many other things. If Democrats are going to be the party of progressive values, then they need to rebrand reproductive choice as essential to progressive politics.

 

Using the “War on Drugs” to Arrest Pregnant Women

The War On Drugs, launched in 1971 by Richard Nixon, has been repeatedly exposed as a failure. Yet, the same failed tactics used to fight drugs continue to be used to retain control over women’s reproduction. Drug laws are increasingly being implemented on the state level as a roundabout method to limit women’s bodily autonomy and carry out anti-choice agendas. Last year, Tennessee passed SB 1391, and became the first state in the U.S. to specifically criminalize drug use during pregnancy. The legislation states that women with babies who test positive for narcotics can be charged and prosecuted for assault. Those women would face up to 15 years of prison time.

Tennessee State Rep Terri Lynn Weaver (R). image via Flickr

Tennessee State Rep Terri Lynn Weaver’s (R) new law specifically criminalizes pregnant women who use drugs, threatening them with massive jail sentences if their doctors find out. image via Flickr

Proponents of the bill claimed it was a necessary step towards combating the increase in neonatal abstinence syndrome (NAS) in Tennessee. However, the medical community took issue with the legislation on a number of points, with obstetric and drug specialists stating that risks to newborns have been exaggerated. An investigative article in the American Prospect found that not only is there “no evidence that NAS has long-term consequences for infants,” but that some doctors agree there is a trend of over-treating NAS and that in actuality, close contact with the mother, not isolation, is important for alleviating symptoms. Medical authorities also say that NAS symptoms are temporary, predictable, and treatable—a far cry from State Representative Terri Lynn Weaver’s (R) assertion that “these babies are born and their lives are totally destroyed.” Furthermore, using the term “drug addicted” to describe such babies has been declared inaccurate by medical professionals, yet Republican politicians, conservative prosecutors, and media continue to frame the issue as such in a way that stigmatizes women.

Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse could result in a jail sentence rather than proper medical treatment.

The Tennessee Department of Health’s FAQ sheet on the statute claims it does not “change care or medical treatment provided to pregnant women.” While it may not explicitly do so, the bill can have the detrimental effect of discouraging pregnant women from seeking vital prenatal care and treatment for fear of arrest and prosecution. The context and implications of medical treatment are indeed changed, and as a result there is widespread consensus in the medical community in opposition to the prosecution and punishment of pregnant women. This is not a recent development: as early as 1990, the American Medical Association stated, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” The American College of Obstetricians and Gynecologists concurred in a statement on the harms of using punitive measures to combat addiction, asserting that “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”

Not only is the science behind SB 1391 faulty, but the stereotypes and discourses remain consistent: the manufactured “crack baby” hysteria is mirrored, along with the moral condemnation of these mothers.

Female drug users have always been stigmatized, but the criminalization of female users reached a new high when conservative policymakers, led by President Ronald Reagan and faithfully echoed by the media, fabricated a trope of inner-city “crack babies” doomed by their supposedly incompetent mothers: poor women of color. Tennessee’s recently passed legislation shows this framework is far from retired. Representative Weaver, one of the bill’s sponsors, was quoted in a comment calling pregnant drug users “the worst of the worst.” The media storm surrounding the legislation, featuring mug shots of women arrested under the statute on local TV news and on the Internet, has driven pregnant women into hiding to escape public ridicule. According to an investigation by The Nation, 24-year-old Brittany Hudson gave birth in a car instead of the hospital out of fear of arrest and media exposure. In the previous weeks, Hudson had been turned away from two rehab centers already at capacity. As she feared, her mug shot was plastered over the news after she was charged with assault. Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be. Just as the “crack problem” was used in the 80s as a vehicle for scapegoating supposedly “deviant” urban citizens experiencing the problems caused by Reagan’s social and economic policies, Tennessee’s statute and its conservative supporters ignore broader structural issues such as poverty, systemic racism, and insufficient health care. The conservative “tough on crime” approach to criminal justice consistently focuses on social control and punishment rather than social justice and access to resources.

Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be.

In line with the War On Drugs, this legislation disproportionately harms poor people of color, despite conservatives’ colorblind claim that drug policy has nothing to do with race or poverty. The normalization of controlling Black and Brown bodies through institutional apparatuses continues with this expansion of an already overburdened criminal justice system. This trend, illuminated in Lynn Paltrow (whose article on fetal genocide laws can be found in the Spring 2015 issue of The Public Eye magazine) and Jeanne Flavin’s study published in the Journal of Health Politics, Policy, and Law, follows a long-term strategy to unite the War On Drugs and the anti-abortion movement, which results in a disproportionate impact upon low-income Black pregnant women. The study systematically identified and analyzed over 400 cases in which a woman’s pregnancy was the basis for the deprivation of her liberty. Black women comprised over half of the cases, as they were found to be reported to the police by health care providers and arrested at higher rates. As a racist project, the justice system’s latest efforts to criminalize drug users will subject pregnant Black women to higher rates of arrests and incarceration based on systemic racial biases and racial stereotypes of African-American mothers, an issue perhaps most notably elucidated in Dorothy Robert’s seminal book Killing the Black Body.

Tennessee’s law exempts women who enter drug addiction programs while pregnant and complete them post-birth. This addition, included to temper opponents, simply furthers the disparate implementation of the measure and creates a catch-22 for addicted, low-income women who cannot get treatment. Women in rural areas and women struggling financially are threatened with a higher risk of incarceration due to limited access to drug addiction programs (as well as limited access to other options, with 96% of Tennessee counties lacking an abortion clinic). The law does not specify the legal ramifications for a woman who seeks treatment but can’t access one or get into a program, leaving many in a vulnerable position. Nor does the law provide increased funding or opportunities for treatment for pregnant women.

And Tennessee isn’t alone. Since passing the bill last year, conservative lawmakers in Oklahoma and North Carolina have proposed similar legislation.

Tennessee’s prenatal drug use law is a continuation of the “personhood” campaign. Both sponsors of the bill, Sen. Reginald Tate (D) & Rep Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state.

The Tennessee law is merely one component of a wider, more subtle—and thus perhaps more dangerous—trend. Although Tennessee is the only state that explicitly criminalizes prenatal drug use as an assault, other states are utilizing different drug-related methods to control women’s reproduction. 18 states label drug usage by pregnant women as child abuse under child-welfare statutes. In the case Ex Parte Sarah Janie Hicks in April 2014, the Supreme Court of Alabama ruled that a 2006 child abuse chemical endangerment statute’s reference to “child” includes an “unborn” child, upholding Hicks’ conviction for having a baby that later tested positive for cocaine, despite being healthy. The original purpose of the statute was to prohibit individuals from exposing children to narcotics production and distribution areas, but right-wing organizations, such as Liberty Counsel, and conservative political actors have since pushed for a wider interpretation of the law: one in which a fetus is considered a child and a womb is considered an environment where drugs are produced or distributed. Court decisions such as Hicks function to create precedent for convicting pregnant women for drug use.

Tennessee’s legislation, in conjunction with other drug-related strategies like the expansion of Alabama’s child endangerment statute under Ex Parte Hicks, applies the punitive approach of the War On Drugs to reproductive rights, limiting women’s bodily autonomy and perpetuating the legacy of the our racist carceral system. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, has consistently highlighted how Tennessee’s prenatal drug use law is a continuation of the anti-abortion “personhood” campaign. Notably, both sponsors of the bill, State Senator Reginald Tate (D) and Representative Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state. These legislative encroachments are but one tactic in a state-by-state approach by conservative activists to control reproduction and insert the concept of “personhood” into the legal code in various arenas.

The prosecution of prenatal drug use stigmatizes and locates the blame on individual mothers, distracting attention from poverty, institutionalized racism, a broken carceral system, insufficient health care, and other structural causes. In a coming together of two controversial issues, drug policy and reproduction, conservatives have found an effective strategy to further their agenda through the targeting of pregnant drug users.

When Anti-Abortion Propaganda is Accepted as Investigative Journalism

One of the underreported aspects of the current smear campaign against Planned Parenthood is the coarsening and polarizing of our civil discourse that usually accompanies discussions of the culture wars.  This has been especially glaring because the ongoing barrage of false and inflammatory language directed at Planned Parenthood and its staff by anti-abortion groups; and the remarkable disconnect between what is passing for evidence and investigative journalism, and the charges being leveled.

Planned Parenthood Federation of America (PPFA) and various staff and affiliates stand accused of “selling” or “trafficking in baby parts.”  They are said to be “profiteering” in a “black market.”  Senator Ted Cruz (R-TX) has gone so far as to call Planned Parenthood “an ongoing criminal enterprise.”

David Daleiden

David Daleiden, founder of Center for Medical Progress and former staff member of Live Action.

These serious, but hyperbolically-stated, charges are based largely on short, manipulatively edited videos produced from hidden camera conversations by the anti-abortion group, Center for Medical Progress (CMP), led by founder David Daleiden who previously served as Director of Research for similar group, Live Action. The videos are being used to justify official investigations by Congress and efforts to bar Planned Parenthood from receiving state and federal funds for routine health care services such as breast cancer screenings, pap smears, contraception, and prenatal care.  Federal funds are not used to provide abortion care (except via Medicaid in the cases of rape, incest, and the life of the mother), and many Planned Parenthood affiliates do not even provide abortions. Among those that do, not all are involved in the donation of fetal tissue and organs.  This is the case in New Hampshire, where, in response to the CMP’s videos, the state recently decided not to continue contracting with Planned Parenthood to provide health care services, even though PP is not engaged in fetal tissue research donations and the state Attorney General had already decided that there was no basis for an investigation.

“We do not launch investigations in the state of New Hampshire on rumor,” said Governor Maggie Hassan. “We do not launch criminal investigations in the state of New Hampshire because somebody edits a tape.”

The videos claiming to demonstrate that Planned Parenthood sells fetal tissue and organs for profit actually only show exactly what PPFA says it does. The organization is reimbursed for the costs associated with transporting tissue for purposes of medical and scientific research. Medical ethicists say that the reimbursement rates discussed in the videos are well within the standard range for non-profits. (For-profit medical enterprises get more.)  This is all legal under federal law. And it is worth noting that no one is proposing changing the laws, or investigating anyone other than Planned Parenthood—likely because the research is life-saving and has led to breakthroughs in cancer treatments and other medical advancements.

This isn’t the first time anti-choice groups have used the same methods to smear Planned Parenthood and pressure public officials into investigating the women’s health care provider in search of a justification to make PPFA ineligible to receive federal funds on the same basis as everyone else.  (They call it “defunding Planned Parenthood.”) David Daleiden himself served as Director of Research for Live Action during the big smear campaign against PPFA in 2011.

Vickie Saporta of the National Abortion Federation (the professional association of abortion providers, whose membership includes providers in both the non-profit and for-profit medical community), further connected the dots to a similar effort in the 1990s. She recently wrote in The Washington Examiner that

“In 1999, another anti-abortion group, Life Dynamics, released an ‘undercover’ video claiming that abortion providers were profiting from fetal tissue donation. The allegations led to a congressional hearing in which the star witness confessed to having been paid over $20,000 by Life Dynamics.

He recanted his story, saying under oath that he had lied and that he had no personal knowledge of any instances in which tissue donation programs had violated federal law. Even legislators who opposed abortion doubted his story and credibility. Then Representative — now Senator — Richard Burr, R-N.C., told the witness: ‘I found there to be so many inconsistencies in your testimony … your credibility, as far as this member is concerned, is shot.’

The head of Life Dynamics, Mark Crutcher, admitted that the hearing was a train wreck. It’s no surprise that Crutcher has also been consulting with CMP. Further investigations this time around will find the same thing as last time: That the anti-abortion group and its agents are the ones who acted fraudulently, and that abortion providers have not broken the law.”

The swirl of charges and countercharges can make your head spin, so here is one simple example of the way CMP handles evidence.

Daleiden was recently interviewed by Alisyn Camerota on CNN’s “New Day” show. He said a brochure for StemExpress, a small company that procures human tissues for researchers, proved that Planned Parenthood harvests fetal parts for profit. He urged viewers to visit the CMP web site to see it.

So I did.

What CMP posted is a generic corporate promotional brochure aimed at a wide audience in the medical field. A PPFA official’s endorsement on the brochure is for the professionalism of the company and makes no mention of pecuniary interests.

One of the most remarkable aspects of the current controversy is that few journalists and public officials are seriously scrutinizing this crude propaganda, and are largely allowing an obscure, militant anti-abortion group to cast themselves as investigative journalists rather than highlighting their agenda and dishonest tactics. Daleiden claims to produce investigative journalism and his lawyers (the Christian Right’s American Center for Law and Justice) characterize Daleiden and his CMP colleague Troy Newman (who also leads the militant anti-abortion group Operation Rescue) as “investigative journalists.”  Christianity Today, the major magazine of evangelical Christianity, called Daleiden a “filmmaker.”  These are very generous descriptions of who these men are, and what they do.

Recently the National Abortion Federation obtained a temporary injunction against the Center for Medical Progress, preventing it from publishing confidential material obtained under false pretenses. Among the reasons the injunction was granted are the harassment and death threats against the PPFA staffers who appeared in the videos. In his ruling, Judge William H. Orrick said:

“Critically, the parties do not disagree about NAF’s central allegations: defendants assumed false identities, created a fake company, and lied to NAF in order to obtain access to NAF’s annual meetings and gain private information about its members….[The defendants] unquestionably breached their agreements with NAF…The evidence presented by NAF, including that defendants’ recent dissemination of videos of and conversations with NAF affiliates has led to harassment and death threats for the individuals in those videos, is sufficient to show irreparable injury for the purposes of the temporary restraining order.”

Center for Medical Progress responded:

“The National Abortion Federation is a criminal organization that has spent years conspiring with Planned Parenthood on how to violate federal laws on partial-birth abortion and fetal tissue sales.”

The evidence for this series of charges from CMP? None.

Anti-Choicers in Colorado Push to Protect the Not-Yet-Conceived

Last November, Colorado voters rejected a constitutional amendment that would have defined personhood as inclusive of fetuses. This victory for reproductive rights, however, was won amid a slew of attacks on Coloradans’ reproductive freedom. Now, many of Colorado’s Republican lawmakers, armed with shoddy science, are pushing an agenda that prioritizes not only the not-yet-born, but the not-yet-conceived.

These lawmakers are working to ensure the demise of the Colorado Family Planning Initiative, a program focused on reducing rates of unintended pregnancy, particularly among teens and younger adults. The program makes long-acting reversible contraceptives (LARCs), such as intrauterine devices (IUDs), available at low or no cost to Colorado residents otherwise unable to afford such methods. IUDs and implants are highly effective, and because they last several years, they can be more practical for people unable to easily access a clinic to obtain short-term contraceptives such as birth control pills. However, the upfront cost of an IUD—ranging from $500 to well over $1000—is often prohibitive, and many on the Right want to keep it that way.

Colorado Rep. K.C. Becker wears earrings shaped like I.U.D.s in support of the

Colorado Rep. K.C. Becker wears earrings shaped like IUDs in support of the Family Planning Initiative.

With help from the Susan Thompson Buffett Foundation, which furnished the state with a grant to the tune of approximately $25 million, Colorado has been able to defray the costs of more than 30,000 LARCs for low-income, uninsured, and underinsured people who can become pregnant. But the pilot period funded by the grant is coming to a close, and the grant is not being renewed, leaving the program’s fate uncertain. State Representative K.C. Becker (D-Boulder) has introduced a bill that would provide $5 million in state funding for the program, but the legislation—which enjoys Republican co-sponsorship—faces strong opposition from certain Republican lawmakers. Senator Kevin Lundberg (R-Berthoud), for instance, erroneously claims that IUDs are abortifacients, which, under current state laws, would make them ineligible for state funding except in cases involving life endangerment, rape, or incest.

Lundberg and his allies are propelled by post-Hobby Lobby v. Burwell momentum. In January, Hobby Lobby served as precedent for a federal judge to approve requests from three Colorado companies wanting to circumvent the Affordable Care Act by offering employee health plans without coverage for sterilization or contraceptives. They also have substantial backing from right-wing organizations, including Focus on the Family (headquartered in Colorado Springs), Colorado Right to Life, and Personhood USA.

sdf

Reproductive Justice—“the right to have children, not have children, and to parent the children we have in safe and healthy environments”—is a conceptual framework developed by women of color collective SisterSong. The founders of the movement describe it as “an intersectional theory emerging from the experiences of women of color whose multiple communities experience a complex set of reproductive oppressions.”

Given that the termination of this program would most affect the reproductive autonomy of low-income women, many of whom are of color, this is certainly a Reproductive Justice issue.

Crucially, when applied to the conflict in Colorado, this framework does not allow for easy demarcation between right and wrong. While access to LARCs is a critical component of full bodily autonomy for people who can become pregnant, it certainly does not guarantee bodily autonomy—indeed, programs meant to enhance access can further endanger bodily autonomy, especially for women of color. I wrote extensively about how programs which on the surface seem to be providing greater choice to women, often turn out to be little more than right-wing initiatives pushing a eugenics agenda among women of color.

Reproductive Justice advocate and activist Natasha Vianna challenges directed attempts at lowering teen pregnancy rates, writing, “Across the country, young girls of color are often being coerced and forced onto long-acting contraception like the IUD. This is not teen pregnancy prevention, this is abuse.” As Vianna aptly underscores, to treat teen pregnancy as inherently negative or harmful to young people who become pregnant is far more damaging than teen pregnancy itself is. Indeed, teen pregnancy need not be damaging at all, and resources spent “ending” it would be better devoted to ensuring that young parents have the resources and support necessary to parent without making sacrifices in other areas of their life.

Similarly, in “Women or LARC First? Reproductive Autonomy and the Promotion of Long-Acting Reversible Contraceptive Methods,” Anu Manchikanti Gomez, Liza Fuentes, and Amy Allina identify the relationship between reproductive oppression, particularly racism in family planning settings, and insufficiently careful promotion of LARCs. The authors cite studies, history, and current events to substantiate the claim that care providers respond differently to patients who are profiled as members of “high risk populations,” often directing these patients toward particular contraceptive methods. The report adeptly situates this phenomenon in “the long-standing devaluation of the fertility and childbearing of young women, low-income women and women of color in the United States, and the perception that these women have too many children.”

A study undertaken by Philliber Research Associates shows that in Colorado in 2008 (just prior to the onset of the initiative), unintended pregnancies occurred at disproportionately high rates among Latina women, African American women, and other women of color: groups whose reproduction is consistently demonized and pathologized. Consequently, unintended pregnancy can be used as a coded way to discuss population control among communities of color. The connections the authors draw between LARCs and coercive sterilization of populations of color must not be overlooked: while LARCs are, of course, reversible, they are costly to remove, and whether the initiative funds their removal—or whether their removal would be affordable after the program’s termination—is not clear.

Furthermore, a key aspect of the argument presented in “Women or LARC First?” is that LARCs ought not to be presented to patients as the ideal contraceptive, yet this is exactly the approach taken by Greta Klinger, the family planning supervisor for Colorado’s Department of Public Health and Environment. Klinger told the Washington Post, “If you have a drug that is 20 times more effective than other drugs, you will always start with that as your first option…What we did (in the Colorado Family Planning Initiative) is kind of flip the mindset, so rather than introducing all contraception as being on the same playing field, we said, ‘Let’s start with what is most effective.’”

Given that the appropriateness of LARCs must be evaluated on a patient-by-patient basis, it would seem that Klinger is most concerned with cost-effectiveness. It is telling that coverage of Colorado’s initiative tends to highlight both Colorado’s steep decline in teen pregnancy rates and the estimated amount of public funds saved in accordance with this decline. Mother Jones reports a state estimate of between $49 million and $111 million saved by Medicaid based on the number of births prevented. Moreover, a report issued by the Guttmacher Institute and co-authored by Klinger herself uses as a metric of success the numbers of infants receiving services through the Special Supplemental Nutrition Program for Women, Infants and Children. Cost-benefit analyses such as this, when applied to reproduction, have eugenic implications.

Without question, there is value in programs that make contraceptive methods accessible and affordable to anyone who wishes to use them; these initiatives are no less than necessary. However, their conception and implementation must be careful, critical, and fully contextualized in the United States’ eugenic past and present. The impetus for such programs cannot be eliminating Medicaid costs or controlling populations (however coded the articulation of the latter goal may be). On the contrary, these projects must be impelled by the liberatory vision that SisterSong’s framework maps for us: a vision that strains against reproductive oppression and strives for a world in which all  people have full control over their reproductive lives.

How Indiana Is Making It Possible to Jail Women for Having Abortions

Public Eye Spring 2015 CoverThis article is part of the upcoming Spring 2015 issue of The Public Eye magazine

On February 3, 2015, an Indiana jury found Purvi Patel, a 33-year-old Indian-American woman, guilty of two crimes, one of which is feticide for attempting a self-abortion. This Monday, March 30, Patel will be sentenced. The prosecution and verdict in this case demonstrate that, despite their claims to the contrary, the real result of the anti-abortion movement —if not the intended goal—is to punish women for terminating pregnancies.

The anti-choice movement’s long-term strategy goes beyond just limiting access to abortion. It also includes passing feticide laws that recognize fertilized eggs, embryos and fetuses as having a separate legal status and creates special penalties for causing them harm.1

As historian and legal scholar Reva B. Siegel has documented, many “pro-life” activists promote anti-abortion measures as “women-protective,” ensuring “women’s informed consent, women’s health, women’s welfare, and women’s freedom.”2 Feticide laws fall into this category: They are presented as a means of protecting both pregnant women and their “unborn” children, and they have overwhelmingly been introduced in the wake of violence against pregnant women. No Indiana law, including its feticide law, has ever been proposed and enacted that claimed it could or should be used as a basis for prosecuting and incarcerating women who have abortions. 3

Yet, as a result of the Patel case, such a law now apparently exists in Indiana.

Purvi Patel is led out of the courtroom in handcuffs after being found guilty of felony neglect and feticide on Tuesday, Feb. 3, 2015. Photo by Robert Franklin/South Bend Tribune

Purvi Patel is led out of the courtroom in handcuffs after being found guilty of felony neglect and feticide on Tuesday, Feb. 3, 2015. Photo by Robert Franklin/South Bend Tribune

The Patel case began when a 33-year-old woman went to a Mishawaka, Indiana emergency room in July 2013, bleeding and seeking help. Patel, who helps run her family’s restaurant and cares for her ailing parents and grandparents,4 eventually told health-care workers that she had miscarried. She explained that she had disposed of the fetal remains in a trash bin. After police found the remains they arrested Patel on the charge of “neglect of a dependent.”

About a month later, county prosecutors added the charge of “feticide.” According to a sworn statement in support of the arrest, Patel sent text messages to a friend indicating that she had obtained two drugs from Hong Kong in an attempt to end her pregnancy and that she had taken some amount of those drugs.5 The feticide charge was based on the claim that Patel “did knowingly terminate a human pregnancy, to wit: her own pregnancy, by ingesting medication,” and that this conduct was not a legal abortion performed in accordance with Indiana abortion law.6

To many observers, it was a shocking new application of Indiana’s feticide law, which was intended to criminalize “knowing or intentional termination of another’s pregnancy.”7 Turning this law into one that can be used to punish a woman who herself has an abortion is an extraordinary expansion of the scope and intention of the state’s law. Nevertheless, a jury convicted Patel on both the feticide and neglect charges; she now faces as many as 70 years in prison.

Even assuming Indiana’s feticide law could somehow become an abortion criminalization law, many people were initially baffled by how Patel could be charged with two seemingly contradictory charges: feticide for ending a pregnancy and also child neglect for giving birth to a baby and then failing to care for it. The state’s explanation took the interpretation of the feticide law to an even further extreme as prosecutor Ken Cotter argued, “a person can be guilty of feticide even if the fetus in question survives, as long as a deliberate attempt was made to ‘terminate’ the pregnancy ‘with an intention other than to produce a live birth or to remove a dead fetus.’”8

Put another way, Indiana’s feticide law is now an abortion criminalization law that not only can be used to punish a woman who ends her pregnancy, but also can be used to punish a woman who even attempts to end her own pregnancy.

This should raise alarm for numerous reasons. To begin with, attempts to end one’s own pregnancy are not extraordinary. One study of abortion patients found that 2.3 percent reported having used misoprostol or other substances, such as vitamin C or herbs, to attempt to end a pregnancy at some point in their lives.9 Another study found that the overall percentage to be higher at 4.6 percent, with even greater percentages in Texas,10 where more than half of all abortion clinics have been forced to close as a result of restrictive abortion legislation.11 (Seven percent of abortion patients in Texas, and 12 percent of such patients near the U.S.-Mexico border, reported having first taken steps in an attempt to terminate their own pregnancies.12)

Another reason for concern is the vagueness of the interpretation of this law.

What constitutes “a deliberate attempt” to terminate a pregnancy? In another Indiana case, 34-year-old Bei Bei Shuai was arrested for attempted feticide because prosecutors construed her attempt to kill herself while pregnant as an attempt to terminate a pregnancy.13 Suicide is not a crime in Indiana or any other state. Nevertheless, Shuai, a Chinese immigrant who survived and gave birth to a baby who lived for several days, was arrested on both feticide and murder charges. Massive public pressure eventually helped get both charges dropped, but not before Shuai spent a full year locked up in state custody and another year under a form of house arrest that required her to wear an electronic monitor for which she had to pay $12 per day.14

There is also the matter of what else might constitute “a deliberate attempt” to end a pregnancy. If a woman suffers an unexplained miscarriage or stillbirth, would the fact that she had previously searched for information about using medications like misoprostol to end a pregnancy15 be used against her? In the Patel case, the state had no physical proof that Patel had actually taken—or even purchased—any medication, apart from text messages allegedly discussing these matters.16 (For the record, the state similarly had no actual proof that the fetus had been born alive, relying instead on a scientifically invalid and widely discredited “float test” to persuade the jury otherwise.17)

What the Patel case demonstrates is that both women who have abortions and those who experience pregnancy loss may now be subject to investigation, arrest, public trial and incarceration. Indeed, Patel has consistently said that she experienced a miscarriage18 that she, like most women in this situation, was unprepared to handle.19 Pregnancy loss is not uncommon: some 15-20 percent of all known pregnancies end in miscarriage;20 one percent of pregnancies—approximately 26,000 each year—result in stillbirth.21 Following the Patel case, however, any miscarriage or stillbirth could be investigated as feticide (an “illegal” self-abortion).

While the scope of Indiana’s feticide law may be vague, the message the Patel case sends is anything but. As an NBC South Bend affiliate summarized it, the verdict broadcast the warning that “there is no room in society today for do-it-yourself abortions.”22

The outcome of this case is noteworthy and alarming for another reason as well. It directly contradicts the repeated claims of anti-abortion leaders that their efforts will not lead to punishing women. Several years ago, 17 anti-choice leaders participated in an online symposium hosted by the conservative magazine National Review, addressing the question of whether there should be “jail time for women who seek abortions.”23 Overwhelmingly the writers assured readers that this was not their goal and moreover, that it would never happen.24 One of the contributors, Marjorie Dannenfelser, president of the national anti-choice group Susan B. Anthony List, argued that fears of women being prosecuted and jailed were just a pro-choice tactic to malign abortion opponents. 25

“The fact of the matter is that compassion for women before abortion was legal and compassion for them after unborn protections are enforced will drive the law,” said Dannenfelser. “The focus of such laws is on protection, not punishment.”26

Another essay contributor, Anne Hendershott, promised, “No one wants to send a woman who has had an abortion to prison—she will suffer enough from her decision.”27 And Tom McClusky, vice president of government affairs for the Family Research Council, flatly called the threat of criminalizing abortion under feticide laws “ludicrous.”28

These writers are not alone. Anti-abortion organizations have routinely downplayed or denied the threat. An Ohio Right to Life webpage, “Overturning Roe v. Wade,” assures readers that “no one is interested in sending women to jail.”29 Generations for Life, the youth arm of the Pro-Life Action League, likewise insists that “the idea of punishing women who have abortions could not be further from anti-choicers’ minds.”30 And legal advocacy organization Americans United for Life has maintained that, “if Roe is overruled, no woman would be prosecuted for self-abortion.”31

But in Indiana, the prosecution of Purvi Patel for an alleged self-abortion is exactly what happened.

It should come as no surprise that not a single national anti-choice group sounded an objection to the Patel prosecution and its use of Indiana’s criminal laws to punish a woman who allegedly sought to end her own pregnancy.32 A similar, deafening silence was heard when Jennie McCormack, a mother of three in southern Idaho—where there are no longer any abortion providers—was arrested after she used medication obtained online to end a pregnancy.33

The anti-choice movement has not taken any steps to oppose prosecution of pregnant women, in spite of peer-reviewed research that I published with Jeanne Flavin34 establishing that anti-abortion measures, including the feticide laws now in existence in 38 states, are providing the justification for the arrest of pregnant women, including those who have had or who attempted to have abortions.

It is likely that most people in the U.S., whether they identify as “pro-life” or “pro-choice,” don’t want to see any woman locked up for having an abortion35 (including the more than 60 percent of women who have abortions who are already mothers).36 Perhaps this is why anti-abortion organizations work so hard to deny the predictable and inevitable consequences of their efforts: women being locked up.37

The anti-abortion organization Priests for Life insists the “pro-life position has always been that women are victimized by abortion. In fact, we have repeatedly rejected the suggestion that women should be put in jail.”38 On Monday, Purvi Patel will find out at sentencing just how much time she will have to serve in jail or prison. But what the Patel case already demonstrates is that we cannot take Priests for Life and the other “pro-life” organizations at their word when they promise protection and not punishment for women.

UPDATE: On March 30, 2015, the Indiana court sentenced Purvi Patel to 41 years for the crimes of feticide and neglect of a dependent (Patel will serve 20 of the 41 years in prison).

 End Notes

[1] See Lynn Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Albany Law Review 999, 1009-1015 (1999).

[2] Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart Faculty Scholarship Series, Paper 1134 (2008), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2131&context=fss_papers

[3] See Indiana v. Bei Bei Shuai, Defendant’s Memorandum of Law in Support of Motion to Dismiss, In the Marion Superior Court Criminal Division, Cause No.: 49G03-1103-MR-014478 at 10-14 (March 30, 2011).

[4] Amy Gastelum, An Indiana jury says Purvi Patel should go to prison for what she says was a miscarriage, PRI’s The World (March 13, 2015) available at http://www.pri.org/stories/2015-03-13/indiana-jury-says-purvi-patel-should-go-prison-what-she-says-was-miscarriage

[5] Indiana v. Patel, Supplemental Affidavit in Support of Probable Cause, In the Stat Joseph Superior Court, Cause No 71 DO8-1307-FA-0000-17 (July 17 2013) available at https://www.documentcloud.org/documents/1280086-patelpcaffidavit.html

[6] Indiana v. Patel, Second Amended Information (In the St. Joseph Superior Court, Cause No., 71D08-13 (Dec 8, 2014).

[7] Sandra L. Smith, Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application. 41 William & Mary Law Review 1845 at 1852-3 (2000) (emphasis added) available at: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1539&context=wmlr

[8] Leon Neyfakh, False Certainty: Why did the pathologist in the Purvi Patel feticide case use the discredited “float test” to show her fetus was born alive?, Slate (Feb 5, 2015). Available at: http://www.slate.com/articles/news_and_politics/crime/2015/02/purvi_patel_feticide_why_did_the_pathologist_use_the_discredited_lung_float.html

[9] Rachel K. Jones, How commonly do US abortion patients report attempts to self-induce? 204 Am J Obstet Gynecol 23 (2011) available at: http://www.ajog.org/article/S0002-9378%2810%2901008-2/pdfSummary

[10]  Daniel Grossman, et. al.Self-induction of abortion among women in the United States, 18 Reproductive Health Matters 136 (November 2010), available at http://www.rhm-elsevier.com/article/S0968-8080%2810%2936534-7/abstract

[11] RH Reality Check, Tracking Texas Abortion Access, http://rhrealitycheck.org/tracking-texas-abortion-access-map/ (last updated Oct. 15, 2014).

[12] Daniel Grossman, et. al., The public health threat of anti-abortion legislation, 89 Contraception 73 (2013)

[13]Deepa Lyer and Miriam Yeung. Purvi Patel Isn’t the First Woman of Color to Have Her Pregnancy Put on Trial in Indiana (Updated)!, RH Reality Check (February 2, 2015). Available at: http://rhrealitycheck.org/article/2015/02/02/purvi-patel-isnt-first-woman-color-pregnancy-put-trial-indiana/

[14] National Advocates for Pregnant Women, Thank You! Bei Bei Shuai is Free and More http://advocatesforpregnantwomen.org/blog/2013/08/thank_you_bei_bei_shuai_is_fre.php; Jodi Jacobson, Bei Bei Shuai out on bail but far from free, RH Reality Check (May 22, 2012) available at: http://rhrealitycheck.org/article/2012/05/22/bei-bei-shuai-out-jail-out-on-bail-but-far-from-free/; David Cerola, Bei Bei Shuai case ends after plea agreement, Nuvo (August 2 2013)

[15] See e.g., Women on Waves, Using Medications (Pills) to End an Unwanted Pregnancy in the USA https://www.womenonwaves.org/en/page/711/using-medications-pills-to-end-an-unwanted-pregnancy-in-the-usa (last visited March 25, 2015).

[16] Indiana v. Patel, Supplemental Affidavit in Support of Probable Cause, St.Joseph Superior Court, Cause No 71 DO8-1307-FA-0000-17 (July 17 2013) available at https://www.documentcloud.org/documents/1280086-patelpcaffidavit.html

[17] Supra note 8.

[18] Supra note 4.

[19] Jennifer Gunter, Feticide laws force birth and punish women (September 10, 2014) available at: http://www.kevinmd.com/blog/2014/09/feticide-laws-force-birth-punish-women.html

[20] Raj Rai & Lesley Regan, Recurrent Miscarriage, 368 Lancet 601, 601 (2006).

[21] Ruth C. Fretts, Etiology and Prevention of Stillbirth, 193 American Journal of Obstetrics & Gynecology 1923, 1924 (March 2005).

[22] WNDU NewsCenter 16 Staff, UPDATE: Purvi Patel found guilty on all counts, WNDU.com (March 26, 2015), video: “Purvi Patel’s Fate In The Hands of a Jury” available at: http://www.wndu.com/home/headlines/Jury-out-in-Purvi-Patel-trial-290718931.html

[23] One Untrue Thing, An NRO Symposium, Life After Roe, National Review, Aug. 1, 2007, http://www.nationalreview.com/article/221742/one-untrue-thing-nro-symposium.

[24] Id

[25] Id.

[26] Id.

[27]Id.

[28] Id.

[29] Ohio Right to Life, Overturning Roe v. Wade, http://www.ohiolife.org/overturning-roe-v-wade/ (last visited March 25, 2015).

[30] Generations for Life, Blog, How Much Jail Time for Women Who Have Abortions?, posted by John, July 31, 2007, at 12:00 p.m., http://generationsforlife.org/2007/0731/how-much-jail-time-for-women-who-have-abortions/.

[31] Clarke D. Forsythe, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade, Americans United for Life, April 23, 2010, http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/.

[32] Indeed, the response from the group St. Joseph County Right to Life suggests clear support for such arrests. Right to Life Program Director Jeanette Burdell released a statement regarding Patel’s conviction, writing, “We agree the prosecutor should have pursued this because it involves an innocent human life. Unfortunately, this case shows that our culture and our society have devalued human life to the point where this mother might not have been fully aware of the gravity of her actions. This is the impact of legalized abortion.” See Fox28, Pro Life Group Reacts to Purvi Patel Conviction, Feb. 4, 2015, http://www.fox28.com/story/28029167/2015/02/04/pro-life-group-reacts-to-purvi-patel-conviction.

[33] Jessica Robinson, Idaho Woman Arrested For Abortion Is Uneasy Case For Both Sides, NPR, April 9, 2012, http://www.npr.org/templates/story/story.php?storyId=150312812.

[34] Lynn M. Paltrow and Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973– 2005: Implications for Women’s Legal Status and Public Healthhttp://jhppl.dukejournals.org/content/38/2/299.full.pdf+html?sid=b0811f36-d4e4-4b51-a830-e175e6eee40c.

[35] See Anna Quindlen, How Much Jail Time for Women Who Have Abortions?, Newsweek, Aug. 5, 2007, http://www.newsweek.com/quindlen-how-much-jail-time-women-who-have-abortions-99537.

[36] Guttmacher Institute, Fact Sheet: Induced Abortion in the United States, July 2014, http://www.guttmacher.org/pubs/fb_induced_abortion.html.

[37] See Lynn M. Paltrow, Roe v. Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration, American Journal of Public Health (2013).

[38] Priests for Life, Letter 263, http://www.priestsforlife.org/lte/lte26.html (last visited March 25, 2015).

Meet Joe Scheidler, Patriarch of the Anti-Abortion Movement

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Nearly 30 years later, anti-abortion activists still work from Joe Scheidler’s blueprint. Could Scheidler’s story provide any clues to where the faults might lie in their strategy?

This article appears in PRA’s Winter, 2015 issue of The Public Eye magazine.

Abortion has been legal—with restrictions—in all 50 states for nearly 42 years, and anti-abortion activist Joe Scheidler has been fighting to make it illegal again for just as many of them. Still comfortably ensconced in his Chicago home, Scheidler, at 87 years old, is father, “Godfather,” and leader to generations of zealots. They continue using tactics Scheidler designed as they protest in the legislature, outside clinic doors, and even across the ocean, all with the goal of criminalizing—and removing access to—safe, legal abortion.

Now that the anti-abortion movement has grown more powerful in the last few years than it has been at any point in the history of legal abortion, it is worth examining where Joe Scheidler’s architecture is still being used—and where it might be decaying or vulnerable.1 Although the days of having a clinic door physically blocked by human bodies or of having abortion providers picketed at their own homes are mostly a thing of the past, today’s assault on legal abortion differs only slightly from these methods.

Joe Scheidler

Joe Scheidler

AN ANTI-ABORTION HOW-TO MANUAL

Pro-Life Action League (PLAL), the anti-abortion advocacy group Scheidler founded in 1980, may not have the name recognition of Operation Rescue (the militant anti-abortion group best known in the 1990s for blocking abortion clinics and terrorizing patients and providers), or National Right to Life Committee (an umbrella group for the state and local affiliates of the national pro-life movement). Still, PLAL has had a profound impact on the movement. Scheidler’s 1985 book, Closed: 99 Ways to Stop Abortion2, became the handbook of those hoping to put abortion providers out of business with tactics ranging from creating mild nuisances to outright harassment and borderline stalking.

Those tactics haven’t changed much in the 29 years since the book was published. Some of the book’s tips, like “conduct a blitz”—coordinating a group of anti-abortion activists to enter a clinic and refuse to leave until the police arrive, all the while attempting to talk patients in the waiting room out of undergoing abortion—no longer can be legally attempted. But other tactics detailed in Closed, such as protests at hospitals, medical offices, or other businesses affiliated with abortion providers, still happen with great frequency. Meanwhile, so-called “sidewalk counseling” has become the signature activity of choice for abortion opponents, using scripts that are often based on the “Chicago-style” training method established by Scheidler and his colleagues.

Groups such as 40 Days for Life promote a constant clinic presence, in some cases even at buildings that only refer for, rather than actually offer, abortions on site. Other organizations, either national or local in scope, trade the allegedly silent (but often actually quite audible) prayers for graphic signs, amplified street preaching, and chasing of potential clinic patients and staff all the way to the building’s entrance.

These groups are also gaining the advantage in the courts. For years, local buffer zones were able to provide an element of protection for clinic patients in some cities across the country. But the Supreme Court’s decision in June of 2014 to eliminate Massachusetts’ buffer zone has led to new efforts to tear down remaining patient safety areas, and to even bolder anti-abortion activity outside abortion clinics.

Anti-abortion activists still document license plates at clinics3, as Scheidler encourages in Chapter 60 of Closed. They still gather in large groups, and while they may not physically block the clinic doors, they instead line the sidewalks on each side as near to the door as possible, 4 using their numbers and presence to bar the entrance. They still write complaints about providers and clinics to file with local departments of health, and they still wait on the streets to document a medical emergency on the rare occasion that an ambulance may be called to the building.

INSPIRING ACTIVISTS AND CRIMINALS

The inspiration for much of this activity belongs to Scheidler. Trained first as a Benedictine monk and next as a journalist, Scheidler began his anti-abortion activism career first with Illinois Right to Life Committee and next with another anti-abortion group called Friends for Life. Scheidler claims he was forced out of both positions due to his unwillingness to work with boards or wait for permission from others to engage in his activist stunts. Scheidler used his severance pay to establish Pro-Life Action League, where he could act on his own impulses without being curbed by anyone out of fear of potential lawsuits.

And lawsuits there were. Most famously, Scheidler became the accused in NOW v. Scheidler, 5 a class-action lawsuit filed in 1986 by the National Organization for Women and a large number of abortion providers, declaring that a multi-state activist network called the Pro-Life Action Network (PLAN), also founded by Scheidler, was conspiring with other anti-abortion activists and groups in a plot to close clinics through “racketeering.”

The racketeering charges never stuck, but Scheidler’s “Godfather” moniker did, and although it evokes the Mafia’s history of shady activities, he continues to claim it.

PLAN, according to Scheidler, was a coordinated effort to organize other anti-abortion groups from across the country who were willing to take direct, physical action against clinics. Scheidler writes in Chapter 68 of Closed, “Go National: Join the Activist Network,” that activists are encouraged to work in national networks to move from “random picketing and sidewalk counseling” to “blitzes of abortion clinics, picketing of doctors’ and clinic operators’ homes, vigils … a national day of rescue … and a national day of amnesty for the unborn, during which efforts would be made to close down as many abortion clinics across the country as possible.” PLAN’s national conventions occurred annually from 1984 to at least 1997, 6 and Scheidler credits the Atlanta conference in 1987 as being the birthplace of Randall Terry’s Operation Rescue.

Terry was just one of many anti-abortion activists who attended yearly PLAN conventions who would eventually go on to block clinics and harass patients and clinic workers, or worse. As part of PLAN, Scheidler introduced the idea of “regional directors” to coordinate their shared mission to end abortion. Starting with PLAN’s 1985 convention in Appleton, Wisconsin, he only welcomed attendees who espoused “militant” anti-abortion activism, according to James Risen and Judy L. Thomas’s book Wrath of Angels: The American Abortion War. 7

Some of those attendees and their close contacts would become the most notorious and often jailed activists of their time. John Ryan, the original “rescuer” of St. Louis, Missouri, attended the early conventions to explain his tactics in clinic blockading, and eventually formed Pro-Life Direct Action League. 8 Joan Andrews, the movement “martyr” who served years 9 in prison for criminal trespass at clinics in multiple states, 10 attended when she was not in jail. Don Treshman of Rescue America, 11 Andrew Burnett 12 of Advocates for Life Ministries of Portland, Oregon 13 and Chris Slattery,14 who was an Operation Rescue member in New York City before starting a chain of crisis pregnancy centers 15 there, all attended or spoke at the yearly gatherings.

Francis (Franky) Schaeffer, son of evangelical theologian Francis Schaeffer, was not just a PLAN convention speaker; he worked closely with Scheidler and wrote the foreword for the 1993 edition of Closed. In his foreword, Schaeffer praised Scheidler and his use of “direct action” against clinics, comparing him to Mother Theresa in Calcutta or Jesus driving the money changers from the temple. “We cannot wait for the ‘abortion problem’ to be solved for us,” he writes. “Street by street, neighborhood by neighborhood, we must fight this necessary battle until legalized abortion is relegated to the barbaric past, along with slavery and cannibalism!”

Franky Schaeffer has since renounced his role 16 in helping to forge the powerful alliance of Catholics and evangelicals in what is now the social conservative movement, citing his belief that the leaders were more interested in winning and retaining Republican majorities than ending legal abortion.

When members met in 1994, 17 it was to discuss how much violence is acceptable when it comes to stopping abortion and closing clinics. The battle lines were drawn at that Chicago meeting, as the coalition began to fray over whether it was ever justifiable to commit murder 18 to stop a doctor from performing abortions. While members of PLAN like Burnett in Oregon supported the idea of “Defensive Action,”19 Scheidler and others declined to do so.

Scheidler’s book has a chapter called “Violence: Why It Won’t Work,” in which he explains how violence against an abortion provider or building would make the movement look bad. Even so, he hedges: “We must point out for the sake of proper perspective, however, that no amount of damage to real estate can equal the violence of taking a single human life,” in this case referring to abortion.

He also frequently discusses, in both his writing and in-person remarks, about his continuing support for those who have used violence in the past. “We’ve had trouble with other pro-lifers,” Scheidler told me this summer when I met him in his office in Chicago.20 “We had those who went off the deep end, and then started shooting and bombing and all that stuff. We knew these people, and we had meetings with them. We even have met them after they get out of prison, and so on. They’re still pro-life. They just went too far.”

SHIFTING TACTICS AT THE CLINICS

For himself, however, Scheidler prefers the “direct action” tactics he enthusiastically embraced, such as “blitzes.” Clinics had great difficulty in fending off activists such as Scheidler, other PLAN members, and eventually Operation Rescue. During the 1980s and ’90s, clinic “blitzes,” “rescues,” and barricading became so common that eventually the federal government passed the federal Freedom of Access to Clinic Entrances (FACE) Act, ensuring that anti-abortion activists could no longer use “rescue” style tactics to keep clinics closed and patients from passing through the doors.

Ann Scheidler, Joe Scheidler’s wife, helps run PLAL’s office and organizational operations. Photo courtesy of Wendi Kent.

Ann Scheidler, Joe Scheidler’s wife, helps run PLAL’s office and organizational operations. Photo courtesy of Wendi Kent.

While FACE was a blow to PLAL, Scheidler’s manual still offered many other ways to shut down a clinic. Scheidler encouraged hospital pickets 21 for those facilities that either offered abortion care themselves or had doctors on staff that provided those services at unaffiliated clinics. He developed another chilling tactic called “adopting abortionists,” his term for sending cards to a provider or supporter’s home, calling them to try to talk, dropping off business cards at their offices, or, as he suggested in his book, even what many would call stalking.

In one chapter of Closed, Scheidler crows about an activist’s success in using “adoption” tactics:

He accompanied her on lobbying missions to Springfield, following her from one legislator’s office to another and all the time praying for her conversion. He attended her seminars and encouraged his friends to fill up the front rows at every lecture she gave. He challenged her to public debates, organized people to question her at her talks, sent her pro-life literature, and took every opportunity to try to get her to stop promoting abortion. He succeeded.

Decades later, Scheidler’s advice for establishing direct contact with those who perform or support abortion has been mostly discarded, but some of his ideas occasionally reappear. In 2013, Dr. Cheryl Chastine, a reproductive health and abortion provider at South Wind Women’s Center in Wichita, Kansas, received two pieces of mail to her home address, both sent from Pro-Life Action League. The first was a letter from Joe’s wife Ann, Pro-Life Action League’s Vice President, asking her to meet for a cup of coffee to discuss why Dr. Chastine performs abortions. Later, she received an invitation to the League’s Christmas party.

Both mailings came just months after PLAL systematically and methodically pressured 22 Dr. Chastine’s private practice into severing ties with her. PLAL’s tactics included protests, letters to other businesses sharing the space, and threats of more public actions against the building if their professional relationships continued.

Scheidler and PLAL helped design tactics such as pressuring providers, blocking clinics, so-called “sidewalk counseling,” and clinic pickets. But even more current anti-abortion tactics, like conducting public relations campaigns “exposing” Planned Parenthood, have roots in Scheidler’s work.

Scheidler and PLAL helped design tactics such as pressuring providers, blocking clinics, so-called “sidewalk counseling,” and clinic pickets. But even more current, popular anti-abortion tactics, like conducting public relations campaigns “exposing” Planned Parenthood, have roots in Scheidler’s work. As early as the 1980s, PLAL smeared Planned Parenthood as a “threat to children,” and claimed the organization had sinister aims in providing information about sexuality, pregnancy prevention, and “contraceptive drugs and devices.” PLAL also accused Planned Parenthood of potentially giving abortion referrals to young teens without the consent of parents.

Such talking points echo in current campaigns by Live Action,23 a youth-based anti-abortion and anti-birth control movement that primarily engages in hidden camera “gotcha” videos purporting to “expose” Planned Parenthood affiliates and other providers of reproductive health care services. Live Action has been a leader in efforts to pressure Congressional lawmakers into defunding the family planning agency and works with other anti-abortion conservative political organizations like Susan B. Anthony List,24 Students for Life,25 Americans United for Life,26 and others, including PLAL.

THOSE GRAPHIC FETUS IMAGES

Today, Scheidler’s organization may be more the base of the anti-abortion movement than the face of it, but when it does don its public face, it likes to use graphic imagery. PLAL still commits to “counseling” outside clinics in Chicago, as well as training “sidewalk counselors” at yearly national conventions, such as the one held in Minnesota, in 2013, or Alabama, in 2014.27 However, its most public events are the “Face the Truth” tours, which take place for one full week each year during the summer, as well as for one day each month during the spring and fall.

On a Face the Truth tour, members of PLAL place large, graphic images of fetal and embryonic remains along a street or public venue, ranging from abortion clinics to major sidewalks in downtown Chicago. The tours, which PLAL said it began in 2000, are similar to the Center for Bio-Ethical Reform’s (CBR) Genocide Awareness Project, which mounts graphic aborted-fetus displays on campuses and universities, or those of Created Equal, a newer Ohio campaign from Mark Harrington, formerly with CBR.

The goal of such projects, according to Eric Scheidler, Joe’s son and the current executive director of PLAL, is to make people recognize the realities of abortion. The tactic represents an escalation from the early days of picketing at abortion clinics, when Joe Scheidler and others tried to stop patients from entering the building by handing out pamphlets that would often contain similar images.

The images are of grisly post-abortion remains that Scheidler says are real. He often obtained the subjects himself. In Abandoned: The Untold Story of the Abortion Wars,28 author and anti-abortion activist Monica Migliorino Miller details how she and Scheidler, along with a few other activists in Chicago, would remove the remains from a dumpster behind a local clinic, after which Miller would take them home to photograph.29 Later, they would take the remains to churches and ask to hold burials, a ritual that has eventually led to the National Day of Remembrance for Abortion Victims.30

PLAL’S WIDENING SCOPE

For all its influence and reach, PLAL remains a rather lean operation. On its tax documents, it claims only about $1 million 31 in revenue in 2013, mostly from donors it chooses not to disclose, and less than $13,000 in sales from sidewalk counseling tools and other anti-abortion activism products.32 In the same year, PLAL spent about $450,000 on compensation, not including benefits, with over $200,000 of that going to Joe, his wife Ann, and their son Eric. The organization’s biggest expenses are printing, shipping, and postage (perhaps not surprising considering the leaflets, pamphlets, large graphic photos, and other materials PLAL uses in its events).

Considering PLAL’s activism that purposefully pushes the lines of legality, it is surprising that it reported a mere $15833 in legal expenses in 2013.

PLAL’s influence in today’s legal abortion battle landscape isn’t felt only in the U.S. PLAL has long been supportive 34 of Youth Defence, an Irish anti-abortion group that “has been criticized by politicians for adopting the militant tactics of American antichoice activists,” according to Allie Higgins of Catholics for a Free Choice,35 who also reports that Scheidler’s book is used as a handbook for activist tactics by the group. Eric Scheidler joined the group in Ireland 36 for an international pro-life youth event in 2010. This year, the international pro-life youth conference was held in California 37 with Youth Defence, PLAL, and others.

Speaking at this year’s event 38 was Bernadette Smyth of Northern Ireland’s Precious Life. Smyth, who appears to emulate Scheidler’s tactics in her own country, once dismissed criticism of Scheidler’s activities, stating, “Joseph is not guilty of anything but saving women and unborn babies from abortion.”39 In November of 2014,40 a judge found Smyth guilty of harassing the head of the Marie Stopes clinic in Belfast, Ireland.

SCHEIDLER’S LEGACY

Now, 30 years after Scheidler published the definitive handbook on how to close an abortion clinic, there are fewer than 800 abortion clinics left in the country. Those clinics that remain have become even more susceptible to harassment, financial pressure, frivolous lawsuits, medical complaints, and massive anti-abortion PR campaigns.

30 years after Scheidler published the definitive handbook  on how to close an abortion clinic, there are fewer than 800 abortion clinics left in the country. Those clinics that remain are still susceptible to harassment, financial pressure, frivolous lawsuits, medical complaints, and massive anti-abortion public relations campaigns. In other words, they remain susceptible to almost every tactic Joe Scheidler first outlined in 1985.

In other words, they remain susceptible to almost every tactic Joe Scheidler first outlined in 1985. The defensive stance of giving Kevlar vests to clinic providers and forming clinic defense teams has had little positive impact.

With the right to a legal, safe abortion increasingly in jeopardy, the need to proactively fight the evolving tactics of the anti-abortion movement is critical. In the 1980s and 1990s, the threat that Scheidler and his cohorts posed to legal abortion access led to a federal lawsuit that managed to distract and hold off the pro-life movement for more than a decade. That lawsuit also led to the drafting and passage of the FACE Act. Today, abortion rights supporters must consider how to take similar bold action to exploit weaknesses in the anti-abortion movement and stop it from continuing to cut off what legal access remains.

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Robin Marty is a freelance writer, speaker, and activist, and the author of Crow After Roe: How Women’s Health is the New “Separate But Equal” and How to Change That. Robin’s articles have appeared at Bitch Magazine, Rolling Stone, Ms. Magazine, Truthout, AlterNet, BlogHer, RH Reality Check, and Care2.org, and she has spoken at national trainings and conference for NOW, NARAL, the National Conference for Media Reform, and Netroots Nation.

Footnotes

1. See, for example: Janet Reitman, “The Stealth War on Abortion,” Rolling Stone, Jan. 15, 2014, http://www.rollingstone.com/politics/news/the-stealth-war-on-abortion-20140115.
2. Joseph M. Scheidler, Closed: 99 Ways to Stop Abortion (Charlotte: Tan Books, 1984).
3. Robin Marty, “Tracking License Plates at Abortion Clinics? It’s Not Just Happening in Texas,” Talking Points Memo, Aug. 18, 2014, http://talkingpointsmemo.com/cafe/tracking-license-plates-at-abortion-clinics-it-s-not-just-happening-in-texas.
4. Robin Marty, “Running the Gauntlet,” Politico, June 11, 2014, http://www.politico.com/magazine/story/2014/06/abortion-supreme-court-mccullen-v-coakley-107739.html#.VHyonWTF_38.
5. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (S.C. 1994), No. 92-780.
6. “PLAN holds 1997 Convention in Milwaukee,” Life Advocate Nov./Dec., Vol. XII No. 9 (1997), http://www.lifeadvocate.org/11_97/nation.htm.
7. Judy Lundstrom Thomas, “Wrath of Angels Descends,” Interview with Anne Bower, The Body Politic, Vol. 7, No. 11, Dec. 1997, 17.
8. Josh Glasstetter, “Todd Akin Arrested on May 9, 1987 with Radical Anti-Abortion Group,” Right Wing Watch, Oct. 22, 2012, http://www.rightwingwatch.org/content/todd-akin-arrested-may-9-1987-radical-anti-abortion-group.
9. “Pro-Life Leader Joan Andrews Released from Prison,” The Forerunner, Nov. 1, 1988, http://www.forerunner.com/forerunner/X0446_Joan_Andrews_release.html.
10. Brian Caulfield, “Joan Andrews Bell Freed on Unsupervised Parole,” National Catholic Register, Apr. 5, 1998, http://www.ncregister.com/site/article/joan_andrews_bell_freed_on_unsupervised_parole.
11. William Booth, “Doctor Killed During Abortion Protest,” Washington Post, Mar. 11, 1993, http://www.washingtonpost.com/wp-srv/national/longterm/abortviolence/stories/gunn.htm.
12. “Advocates for Life Ministries to Close,” Ms., Nov. 29, 1999, http://www.msmagazine.com/news/uswirestory.asp?id=1195.
13. “Andrew Burnett Biography,” Life Advocate, http://www.lifeadvocate.org/bio/andrew/bioandrw.htm.
14. “250 Arrested at Jersey Anti-Abortion Protest,” New York Times, Sept. 18, 1988, http://www.nytimes.com/1988/09/18/nyregion/250-arrested-at-jersey-anti-abortion-protest.html.
15. Cynthia L. Cooper, “N.Y. Launches Probe of Crisis-Pregnancy Centers,” Women’s E-News, Jan. 31, 2002, http://womensenews.org/story/health/020131/ny-launches-probe-crisis-pregnancy-centers.
16. Frank Schaeffer, “How My Dad and I Helped Create the Tea Party GOP and Terrorist Extremism,” Patheos, Nov. 15, 2014, http://www.patheos.com/blogs/frankschaeffer/2014/11/how-my-dad-and-i-helped-create-the-tea-party-gop-and-terrorist-extremism.
17. Tamar Lewin, “Death of a Doctor: the Moral Debate–Abortion Doctor and Body Guard Slain in Florida; A Cause Worth Killing For? Debate Splits Abortion Foes,” New York Times, July 30, 1994, http://www.nytimes.com/1994/07/30/us/death-doctor-moral-debate-abortion-doctor-bodyguardslain-florida-cause-worth.html.
18. Joe Scheidler, “Paul Hill Executed,” Pro-Life Action League, Sept 5, 2003, http://prolifeaction.org/hotline/2003/30905.
19. Adam Guasch-Melendez, “Grand Jury Won’t Issue Indictment for Abortion Conspiracy,” The Public Eye, March 1996, http://www.publiceye.org/ifas/fw/9603/conspiracy.html.
20. Robin Marty, “On the Sidewalks of a Chicago Clinic: A battle about how to End Abortion,” Clinic Stories, http://www.clinicstories.com.
21. Andrew Fegelman and Jean Latz Griffin, “Public Funds’ Use Key to Abortion Fight,” Chicago Tribune, Dec. 16, 1992, http://articles.chicagotribune.com/1992-09-16/news/9203240474_1_anti-abortion-pro-life-action-league-cook-county-hospital.
22. Robin Marty, “Working As an Abortion Doctor in the Town Where Dr. Tiller Got Shot,” Think Progress, Feb. 7, 2014, http://thinkprogress.org/health/2014/02/07/3266341/cheryl-chastine-abortion-harassment.
23. “Live Action News,” http://liveactionnews.org/about.
24. “Top 12 Reasons to Defund Planned Parenthood Now,” Susan B. Anthony List, Apr. 8, 2011, http://www.sba-list.org/suzy-b-blog/top-12-reasons-defund-planned-parenthood-now.
25. “Live Action and Students for Life of America Release Winner of “Tell Congress” Video Contest,” Expose Planned Parenthood, Mar. 15, 2011, http://exposeplannedparenthood.net/newsroom/press-releases.
26. “Planned Parenthood Exposed Partners,” http://plannedparenthoodexposed.com/partners.
27. Anne Scheidler, “Scheidlers Headline at Fourth Annual National Sidewalk Counseling Symposium,” Pro-Life Action League, Aug. 15, 2014, http://prolifeaction.org/hotline/2014/nscs2014.
28. Monica Migliorino Miller, Abandoned: The Untold Story of the Abortion Wars (Charlotte: St. Benedict Press, 2012).
29. Priest For Life Image Collection, http://www.priestsforlife.org/resources/monica.
30. Robin Marty, “Let’s Get Visceral: Anti-abortion Activists Plan Memorial Services for Unborn Fetuses, Complete with Tiny Coffins,” In These Times, Sept. 13, 2013, http://inthesetimes.com/article/15615/lets_get_visceral.
31. Pro-Life Action League, Guide Star Report, p.2, http://www.guidestar.org/ViewPdf.aspx?PdfSource=0&ein=36-3081086.
32. “Pro-Life Action Store Products,” Pro-Life League, https://pro-life-action-league-store.myshopify.com/collections/all.
33. U.S. Department of the Treasury, Internal Revenue Service, Form 990, (Washington, DC: 2012), p.10, http://www.guidestar.org/FinDocuments/2013/363/081/2013-363081086-0a0988d5-9.pdf.
34. Angela Nagel, “Why American Pro-Life Dollars Are Pouring Into Ireland,” Atlantic, Jan. 9, 2013, http://www.filmyboxoffice.com/news/why-american-pro-life-dollars-are-pouring-into-ireland.html.
35. Allie Higgins, “Recruiting the Next Generation: How Conservative Groups Influence and Enlist Young People,” Catholics for a Free Choice, 2005, http://www.thefreelibrary.com/Recruiting+the+next+generation%3A+how+conservative+groups+influence+and…-a0136262288.
36. Eric Scheidler, “Eric Visits Ireland to Encourage Pro-Life Youth,” Pro-Life Action League, Nov. 12, 2010, http://prolifeaction.org/hotline/2010/vivalavida.
37. Kristina Garza, “Best Conference Yet,” Survivors of the Abortion Holocaust Blog, Nov. 12, 2014, http://www.survivors.la/blog/2014/11/12/best-conference-yet.
38. “Program Schedule,” Survivors of the Abortion Holocaust Blog, 2014, http://www.survivors.la/-program-schedule.
39. Anne Donald, “Guardian of the Right to Life,” The Herald Scotland, Nov. 19, 1999, http://www.heraldscotland.com/sport/spl/aberdeen/guardian-of-the-right-to-life-1.261598.
40. Henry McDonald, “Anti-Abortion Activist Found Guilty of Harassing Belfast Marie Stopes Boss,” Guardian, Nov. 19, 2014, http://www.theguardian.com/uk-news/2014/nov/19/abortion-activist-guilty-harassing-belfast-marie-stopes.

Sticks and Cages, Carrots & Cash: The Right’s Racist Assaults on Reproductive Freedom

This post is the fourth in a five-part series examining the U.S. Right’s efforts to alter demographic trends by re-popularizing arguments and ideologies rooted in eugenics. (Read parts one, two, and three.) Today, I continue to discuss the U.S. Right’s coercive attempts to limit the fertility of people of color, an egregious affront to reproductive justice. This segment covers private and state mechanisms for preventing poor people of color, particularly Black women, from having children.  

As shown in the most recent post in this series, institutions like hospitals and other health care providers—generally regarded as unequivocally positive presences among White communities—often cast a much more violent shadow over communities of color. Similarly, White communities typically experience police officers as their protectors, while the same forces can pose a constant and lethal threat to law-abiding Black communities. People of color are also disproportionately likely to be ensnared in institutions designed to exert control without any veil of benevolence. Because mainstream narratives situate Black and Brown bodies as dangerous, as somehow oppositional or threatening to White American identity and nationhood, the state project of containing people of color is normalized and accepted as legitimate. Unspeakably inhumane apparatuses are thus widely regarded as necessary. Of the institutions violently managing Black and Brown bodies and populations (in every sense of both terms), mass incarceration likely looms largest.

The criminal justice system deploys a variety of methods to deny incarcerated people their rights to have children, and because mass incarceration is a racist project, African American people bear the brunt of this punishment. (Significantly, incarceration itself fundamentally obstructs the right to parent, making it a critical reproductive justice issue.) One such method is deliberately handing a woman a sentence likely to extend through her procreative years; another is forcing people convicted of certain crimes to “choose” between serving jail time and adopting long-acting contraceptive use; another is shifting parental rights over newborns to foster or adoptive parents; and another still is the practice of shunting people into carceral institutions distant from their communities and their partners. Additionally, incarcerated people’s access to reproductive health care tends to be abysmal. In some prisons and jails, the problem is not just the absence or insufficiency of care, but also procedures that are undertaken without informed consent.

A study by the Center for Investigative Reporting (CIR) found that between 2006 and 2010, nearly 150 people (if not more) held in California state prisons were sterilized under coercion and without legally mandated state approval. Christina Cordero, who received an unauthorized tubal ligation while incarcerated, said the prison OB-GYN persistently recommended that she undergo the procedure, making her “feel like a bad mother if [she] didn’t do it.” Kimberly Jeffrey, a Black woman who was also sterilized while incarcerated, reported being “pressured by a doctor while sedated and strapped to a surgical table for a C-section” (emphasis added). Jeffrey also recalls being told that she could only reclaim custody of her youngest child if she underwent a full hysterectomy. Jeffrey, who works with Justice Now, received no medical consultation about the operation, and her explicit resistance was ignored. Even if she had willingly acceded to the operation, however, Jeffrey could not have given consent: according to University of Pennsylvania Law professor Dorothy Roberts, courts have ruled that the conditions of labor can impair judgment, making it such that informed consent cannot be given during labor. (See Roberts’s Killing the Black Body 1)1997 for a more comprehensive analysis of attacks on Black women’s bodies and fertility.)

James Heinrich, the unremorseful OB-GYN who performed many of the tubal ligations, told CIR that he believed the cost of the surgeries, at nearly $150,000,to be negligible “compared to what you save in welfare paying for these unwanted children…as they procreated more.” Heinrich’s language is loaded. “Unwanted” implies promiscuity and assumes carelessness, while “procreated” indicates animalism, as opposed to the white feminine ideal of nurturing motherhood. Perhaps most appalling is Heinrich’s implicit bottom line: that certain people, disproportionately poor women of color and particularly poor Black women, ought not to have children because their offspring would be supported at the expense of the state’s more deserving citizens. Like the mythical “anchor babies” of Latina/o immigrants, the children of incarcerated people are presumed to be parasitic strains on the “system” even prior to their conception.

His prejudicial premise aside, Heinrich’s cost-benefit analysis hardly stands up to interrogation. His economic argument belies the fact that the exponential rise in incarceration itself, caused not by a rise in crime but rather by increasingly harsh and inflexible sentencing laws, has incurred enormous cost to the state. While expenditures on assistance under Temporary Assistance to Needy Families totaled about $5.3 billion in Fiscal Year 2013, the President’s FY13 budget request for the Federal Bureau of Prisons was $6.9 billion.

For those complicit in imposing tubal ligations in California prisons, the procedures were predicated not on smart budgeting so much as on problematic notions of who deserves support and who deserves punishment. Like the Federation for American Immigration Reform (FAIR), and its rabidly anti-immigration constituency, Heinrich and his colleagues cast poor women of color as scam artists or conniving thieves, rather than rational agents of their own reproduction. The anti-immigration Right may no longer be taking active measures to physically manage Latina women’s fertility, but the arguments for sterilizing incarcerated people who can become pregnant (who, in California and elsewhere, are disproportionately poor and of color) are much the same as the arguments put forth by FAIR and other nativist groups highlighted earlier in this series.

Some on the Right, however, have explicitly condemned the malfeasances that occurred in California prisons, based on the notion that sterilization frustrates potential life. These anti-choice groups’ denunciation is well directed, but ill-reasoned. The arguments and strategies employed by individuals and groups like Heinrich and FAIR are reprehensible not because of the hypothetical lives lost to sterilization, but because they deprive living people of their fundamental right to build the families they wish to build. Still, while imagined children are not the victims, nor are they irrelevant. It is critical to understand that the criminalization of Blackness, of Brownness, and of poverty is so entrenched that it precedes birth.

Moreover, while certain right-wing groups have seized the opportunity to criticize the wrongdoings undertaken by state institutions under majority Democratic governance, the same factions have looked on silently, even supportively, as Project Prevention (PP, formerly Children Requiring A Caring Kommunity, or C.R.A.C.K.) pursues a parallel process, ideologically and practically, outside of prisons.

The name C.R.A.C.K. invokes President Reagan’s manufactured panic surrounding the crack epidemic and its racialized and scientifically baseless ghouls, “crack mothers” and “crack babies.” The organization was founded in 1994 by Barbara Harris, whose first mission was to pass state legislation punishing people who give birth to drug-exposed infants. Such punishments, codified and otherwise, abound, and in the 413 cases analyzed in a 2013 study, 59 percent of people subject to state punishment under post-Roe v. Wade legislation criminalizing pregnancy were of color, and 52 percent were African-American. Harris’ particular initiative, however, proved unsuccessful. Founding C.R.A.C.K. was her ostensibly benevolent alternative.

Today, Project Prevention gives $300 in cash to people who are or have been addicted

C.R.A.C.K. flyer targets women of color, offering them cash payouts to go on long-term birth control

C.R.A.C.K. flyer targets women of color, offering them cash payouts to go on long-term birth control

to drugs or alcohol and who submit documentation proving that they have undergone sterilization procedures or are using long-acting contraception, such as Norplant or Depo-Provera. The organization, whose advertising targets low-income communities of color, also disseminates stigmatizing and scientifically inaccurate literature, which describes imagined horrors of drug-addicted motherhood and the irresponsible hyperfertility Harris attributes to women who use drugs.

Just as the California sterilizations took place among the innumerable other restrictions incarceration imposes on incarcerated people’s reproductive lives, Project Prevention represents an extreme manifestation of racist ideologies and practices that are widely accepted and deeply rooted in American society.

Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women (NAPW), argues that the organization’s strategies are actually part and parcel of Harris’ original, more overtly punitive, intention. PP’s mission, she argues, could be “understood as one designed to stigmatize certain people and to make them seem appropriate targets for sterilization and other forms of population control” (23).

Paltrow’s analysis is supported by a 2012 article Jed Bickman published in Salon, which states that of the 4,077 people the newly rebranded Project Prevention had paid to be sterilized or use long-acting contraceptives, 24 percent were African-American. The United States population is only 13.2 percent Black, and illicit drug use among Black Americans is not substantiallyif at allhigher than it is among White Americans.

Groups like NAPW have worked extensively to expose and oppose PP’s discriminatory efforts to undercut reproductive justice. But where is the Right with its ardent defense of life and unequivocal condemnation of contraception? They’re funding Harris. By 2006, C.R.A.C.K. had received donations totaling more than $2 million, the majority of which, Paltrow documents, came from wealthy conservatives. Major benefactors included the Allegheny Foundation, founded by the “funding father of the right,” billionaire Richard Mellon Scaife (who also contributed millions of dollars to FAIR and to other nativist projects initiated by FAIR’s eugenecist founder, John Tanton.); Dr. Laura Schlessinger, the vitriolically anti-Black and anti-LGBTQ talk show host; and right0-wing donor Jim Woodhill, Woodhill also hired British psychologist and unabashed eugenicist Chris Brand to bring Project Prevention overseas. Project Prevention’s sites of operation now include Haiti and Kenya, where its staff works to sterilize women with HIV.

Like Heinrich and the fertility-obsessed nativists, Project Prevention’s representatives are adept at speaking in code. The publicity team at Project Prevention characterizes the organization as seeking to “save our welfare system and the world from the exorbitant cost to the taxpayer for each drug-addicted birth”(Bickman).Ultimately, all of these enemies of reproductive autonomy position themselves as noble crusaders against the “threat” of government resources sustaining Black and brown children and families.

In the final installment of this series, I will more specifically address welfare’s role as part of the Right’s rhetorical and practical strategies for vilifying poor women of color and limiting their reproductive freedoms.

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References   [ + ]

1. 1997

Video Denounces Planned Parenthood and BDSM; New Personhood Alliance Forms

When I decided to search for #SexEd on Twitter, looking for coverage of sex education, I wasn’t expecting to see activity from Live Action, Lila Rose’s anti-choice organization. But I quickly realized the tweets related to the slew of emails from Live Action this month—the latest attention-grabbing headline, “I can’t even degrade animals that way.”

sexed planned parenthood lila rose

“SexEd: Planned Parenthood’s Dangerous Sex Advice for Kids,” is the first in a new Live Action series of videos “exposing” Planned Parenthood. The video features a counselor answering questions from what is identified as a 15-year-old girl. The girl requests information on concepts such as role-playing and kink, which she claims interest in attempting with her 17 year old boyfriend. The Planned Parenthood counselor explains BDSM as the girl thanks her—the staffer also suggests making use of the internet, saying anything they’re interested in trying, someone else has already thought of.

Indeed, the staffer provides basic information easily available to any teenager with internet access. The staffer also emphasizes the need for consent, an important element misunderstood by those who see BDSM as abuse. But rather than recognizing the advice as basic counseling driven by the teen’s persistent questions, Live Action’s video seeks to cast it as titillating and encouraging of youth sexuality—fundraising for their anti-choice agenda with multiple appeals for donations by playing up a sex-panic to their followers.

Live Action also uses its videos to push a petition telling Congress to defund Planned Parenthood, denouncing its receipt of taxpayer money (which is already prohibited from being used for abortions, and is used to fund comprehensive sex education and family planning).

This isn’t a first for Live Action’s films, which have been criticized for manipulative editing to promote their agenda, and have been used to accuse Planned Parenthood of covering for sex-traffickers, endangering women’s lives, and ignoring child sexual abuse. The latest video accompanies a 60-page report drawn from this background, Lies, Corruption, and Scandal: Six Years of Exposing Planned Parenthood, which Rose distributed to members of Congress a few weeks ago. While largely unsuccessful in triggering the government investigations Live Action calls for, given the lack of substantive evidence of criminal behavior by Planned Parenthood, the videos catapulted founder Lila Rose into a prominent position on the anti-abortion circuit. On the Roe v. Wade anniversary this year, CNN’s Crossfire program pitted Rose against NARAL president Ilyse Hogue.

As it happens, Planned Parenthood of Northern New England already produced its own video explaining BDSM to young people, as part of their series “A Naked Notion,” hosted by Laci Green. This video covers the same themes Live Action elicited from staff in its undercover video. In fact, it’s unclear whether Live Action “uncovered” anything that Planned Parenthood hadn’t already made public.

BDSM has gained widespread acceptance in mainstream American culture. Fifty Shades of Grey, and its depictions of BDSM, sold its 100 millionth copy this February. Mainstream films like Secretary and Nine ½ Weeks openly (and vividly) discuss BDSM themes (and the movie version of Fifty Shades will join them next year). Why shield teens from accurate information when books and movies on the topic have received so much hype? In fact, it could be the very acceptance of BDSM and the success of books like Fifty Shades that inspired Live Action’s latest exposé—part of what makes regulating sex such an attention-grabber for right-wing mobilizing is that conservatives can be simultaneously outraged and tantalized.

Elsewhere in the world of anti-choice activism, on June 16 the Georgia and Cleveland Right to Life organizations issued a press release announcing the formation of a National Personhood Alliance. Georgia Right to Life (GRTL) lost its affiliate status in the National Right to Life in March, after refusing to support federal legislation to ban abortion after 20 weeks—the Georgia group refused to support the exceptions for rape and incest.

The formation of a new personhood alliance means more support for the stance of organizations like Personhood USA, which so far has been seen as outside the mainstream of the anti-choice rights movement. While other mainstream “pro-life” organizations support the goals of Personhood, which advocates banning abortion in all cases from the moment of conception, they pragmatically are unwilling to sacrifice the opportunity to pass partial-bans and their image as a “moderate” player. GRTL and its new compatriots, like Personhood USA, are unwilling to compromise, hardening the fringe of the anti-choice movement.

“Compromise is not possible,” the press release reads. “This is not like roads or highways or agricultural subsidies; when we compromise – someone dies.” GRTL president Daniel Becker claims that the founding of the group answers “an overwhelming call from many within the movement” to represent personhood and pursue “a fresh strategy.”

The new coalition’s website includes quotes made by various anti-abortion leaders in support of personhood, including Lila Rose, Family Research Council president Tony Perkins, American Life League president Judie Brown, and former U.S. President Ronald Reagan. The official formation will be at a national convention on October 10 and 11 in Atlanta, Georgia.

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If Money Talks, the Anti-Abortion Side is Shouting

image via the Indiegogo campaign for the proposed Gosnell movie

image via the Indiegogo campaign for the proposed Gosnell movie

“So far, the biggest ‘crowd funded’ film of all-time is the Veronica Mars movie, a teen detective story that asked for $2.1m and raised $5.7m, we think the Gosnell movie is more important, we think you do too.” So read the Indiegogo fundraising pitch for a project to create a scripted drama “about America’s biggest serial killer, abortionist Kermit Gosnell and the media cover-up.”

While it didn’t break the Veronica Mars record, the campaign did surpass its stated goal before ending yesterday at $2,241,043. (I’ll confess that one dollar of that total figure is from me—I donated so I wouldn’t miss any updates sent to supporters.) Anti-abortion rights groups such as Personhood USA and Lila Rose’s Live Action helped promote the fundraising campaign while regularly misusing Gosnell’s crimes as an excuse for their agenda to end legal abortion. They aren’t the only ones: this week, the Heritage Foundation and American United for Life (AUL) hosted a discussion (including a speaker from the Charlotte Lozier Institute) for the one-year anniversary of Gosnell’s conviction and promoted a Senate bill that would ban abortions after 20 weeks.

Reproductive justice and pro-choice organizations, like the Center for Reproductive Rights, have also condemned the doctor, calling for “No more Gosnells.” Yet their approach is to protect—or, in some cases, create—women’s access to safe, legal reproductive care, so that desperation and a lack of options do not force them into the hands of a criminal like Gosnell.  These efforts, though, continue to face tough opposition from conservatives. In an action alert sent yesterday, for example, CRR warned that “Senator Lindsey Graham is using the horrific case of rogue abortion provider and convicted murderer Kermit Gosnell to pit a proposed national ban on abortion against the Women’s Health Protection Act.”

The filmmakers for the project, Ann McElhinney and Phelim McAleer (a married couple), are already right-wing darlings for their anti-environmentalist films, which offer conservative rebuttals to documentaries such as Gasland and Al Gore’s An Inconvenient Truth.They also work with a third collaborator, Magdalena Segieda. McElhinney advertises herself as “voted the most popular speaker after Rush Limbaugh and Ann Coulter at CPAC.” Their films have beenpromoted by Focus on the Family, the American Family Association, Tea Party groups, the Heritage Foundation, the Independent Women’s Forum, and the State Policy Network, and they have been funded by Donors Trust/Donors Capital, which funnels money anonymously from right-wing backers.

While anti-abortion themes are not their usual forte, it is unsurprising given the anti-choice, “family values” groups supporting the filmmakers.

Gosnell’s ability to prey on vulnerable women by providing cheap, unsafe, and illegal services stemmed in no small part from the continuing lack of access to reproductive care faced by many low-income women, especially women of color, who comprised the majority of his patients. As Carol Joffe writes in Dispatches from the Abortion Wars, clinics like Gosnell’s flourish amid a “a ‘perfect storm’ caused by the marginalization of abortion care from mainstream medicine, the lack of universal health care in the United States, and the particular difficulties facing undocumented immigrants in obtaining health care.” Many liberal and progressive media outlets would agree—and have pointed out—that the mainstream media failed to cover the Gosnell trial adequately: it failed to pay attention to the root systemic causes of race, class, and gender injustice that allowed him to prosper.

Unfortunately, we cannot expect Kermit Gosnell: America’s Biggest Serial Killer, to pay attention to such nuance or structural issues, given the conservative filmmakers’ track record and its support from right-wing groups bent on banning abortion from the moment of conception. In fact, anti-abortion films have a long history of using emotional footage to motivate anti-choice political action: films such as Francis Schaffer’s 1974 Whatever Happened to the Human Race? and 1984’s The Silent Scream helped mobilize the U.S. Christian Right movement. More recently, Citizens United has claimed that its 2011 film, The Gift of Life,helped persuade Republican presidential candidates to support making abortion illegal in all cases.

I’ll close by noting a contrast: After Tiller, a recent documentary on late-term abortion doctors created in the wake of the murder of Dr. George Tiller, raised $11,000 from 176 backers on Kickstarter to produce the film. The Kermit Gosnell film, meanwhile, raised more than $2 million from 26,574 backers to produce a lurid movie dramatizing the Gosnell trial in what will most likely be anti-abortion propaganda. If money talks, the anti-abortion side is shouting.

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