The Cruel Irony Of The Anti-Choice Movement’s TRAP Strategy

The Supreme Court heard arguments today in Whole Woman’s Health v. Hellerstedt, which could be the most influential abortion rights case in decades. Whole Woman’s Health, which addresses a Texas law that aims to close abortion clinics by saddling them with expensive and unnecessary regulations, puts to the test the anti-choice movement’s long-term strategy of passing targeted regulation of abortion providers (TRAP) laws meant to squeeze abortion providers out of existence.

As early as 1990, attorney Walter Dellinger, who went on to serve in the Clinton administration, was warning that the emerging strategy of setting up obstacles to abortion access would push women to obtain abortions later in their pregnancies, a more expensive and less safe procedure. These supposed “compromise” measures, he noted, were at the same time sometimes coupled with calls to cut off legal abortion during the second trimester of pregnancy. Dellinger wrote in The American Prospect:

To enact in the United States laws that simply prohibit abortions after twelve or eighteen weeks would constitute a strange and cruel response to the issue of late abortions. In this country, legislative deadlines for abortion would co-exist with access regulations designed to prevent women from being able to meet the deadline. No state truly concerned about either the increased maternal health risks or the moral implications of late abortions should consider the coercive step of prohibiting second trimester abortions while simultaneously pursuing policies that cause abortion to be delayed. … Bans on funding for abortions, shutting off access to public hospitals, parental consent/ judicial bypass laws, and testing requirements all fall into this category. Legislators who are troubled in principle by late abortions should support instead measures ensuring that every woman who wants to terminate a pregnancy can do so as early and as safely as possible.

Fast forward to late last year, when a study showed that exactly that had happened after Texas implemented its restrictive new law:

A new report released by the Texas Policy Evaluation Project — a research group based at the University of Texas at Austin that’s been tracking the state’s reproductive health policy over the past four years — finds that recent clinic shutdowns have greatly limited access to timely abortions statewide. In some cases, women had to wait nearly a month to be seen. In others, clinics had to turn women away, since they had no available appointment slots open.

As wait time to get an abortion increases, the estimated proportion of abortions performed in the second trimester increases. These later surgical abortions, although safe, are associated with a higher risk of complications and are significantly more costly to women than an earlier medical abortion. And even staunch abortion opponents are more opposed to late-term abortions compared to earlier procedures, citing the scientifically disputed theory that fetuses can feel pain after 20 weeks gestation.

At today’s arguments in Whole Women’s health, Justice Anthony Kennedy hinted at this issue, according to the Wall Street Journal’s early reports:

Justice Kennedy ends the string of questions from the women justices.

He notes that drug-induced abortions are up nationwide, but down in Texas, where the number of surgical abortions is up since the state enacted its law. He wondered whether such an impact was “medically wise.”

Justice Ruth Bader Ginsburg similarly called out Texas’ solicitor general for undermining his own claim that the state’s regulations were meant to protect women’s health:

Justice Ginsburg asks: How many women will be located more than 100 miles from a clinic? Mr. Keller makes reference to a 25% number, but says that number is high because it doesn’t take into account some women close to clinics in New Mexico.

That’s odd, Justice Ginsburg says. She wonders why Texas would consider those New Mexico clinics an option, given that they wouldn’t meet the standards set forth in the state law. If your argument is right, New Mexico is “not a way out” for Texas, the justice tells Mr. Keller.

Even as the anti-choice movement is pushing restrictive regulations that, as the Texas study showed, drive women to seek abortions later in their pregnancy, it is championing measures at the state and federal level that would cut off legal abortion at 20 weeks of pregnancy, partway through the second trimester.

Of course, the anti-choice movement is focusing on these two strategies because they believe they can pass muster in the courts and in public opinion in a way that the ultimate goal — an outright ban on abortion — would not. But what is left is not a regime that protects women’s health, as proponents of Texas’ law claim, but one that makes it increasingly difficult, if not impossible, for women to obtain an abortion, which has been their ultimate goal all along.



Supreme Court Rejects Attempt At Restrictive Six-Week Abortion Ban

There has long been a debate raging within the anti-abortion movement between those who have mapped out a careful strategy to slowly chip away at Roe v. Wade through incremental restrictions on abortion and those who want to launch legal broadsides against abortion rights in the hopes that one will take Roe down once and for all.

The incrementalists will have their big day in court on March 2, when the Supreme Court hears arguments in Whole Woman’s Health v. Cole, a challenge to a set of laws in Texas that seeks to cut off access to legal abortion even as the procedure remains legal. Whole Woman’s Health is the culmination of a decades-long strategy by groups like Americans United for Life to choke off abortion access by creating unnecessary regulations on clinics. These groups are also hoping to get the Supreme Court to reconsider Roe in the form of laws banning abortion after 20 weeks of pregnancy, just before when the court has said that abortion bans are legal.

But those who want to find a silver bullet to end abortion rights completely just had a day in court too … and it didn’t go well for them.

The Supreme Court today declined to hear an appeal of a lower court ruling that struck down North Dakota’s “fetal heartbeat” law, which would have banned abortion at about six weeks of pregnancy, before many women even know that they are pregnant. The law was clearly unconstitutional — one prominent anti-choice lawyer has called such efforts “futile” — but North Dakota Gov. Jack Dalrymple said that it was an “attempt by a state legislature to discover the boundaries of Roe v. Wade.”

The boundaries of Roe v. Wade, it turns out, however much they may be weakened by incremental restrictions, still prevent banning almost all abortions.

Yet today’s rejection is unlikely to halt the efforts of “heartbeat bill” crusaders, the most prominent of whom is Religious Right activist Janet Porter, who is currently running for the legislature in her home state of Ohio in an effort to push such a bill through.


From Wisconsin to Washington, Anti-Choice Legislators Push Unconstitutional 20-Week Abortion Bans

In Congress and state legislatures across the country, right-wing politicians are pushing hard to construct new barriers to women exercising the constitutional right to have an abortion.

Earlier this month the U.S. House passed a bill banning abortions after 20 weeks of pregnancy, and GOP legislators in Wisconsin are staging a parallel attack. They introduced a similar 20-week ban, which Gov. Scott Walker has indicated he would sign, and have scheduled a hearing on the bill for next week. PFAW supporters in Wisconsin will be out in force to demonstrate their commitment to protecting this core right.

A couple of important points about 20-week bans: first, they are plainly unconstitutional. One of the main holdings of the 1973 Roe v. Wade decision was a woman’s right to an abortion before the fetus becomes viable – that is, the point when a fetus could survive outside the uterus. As Imani Gandy writes at RH Reality Check:

In the past 40 years, the Court has never wavered from the fetal viability benchmark…Courts have consistently smacked down legislative attempts to ban abortions at 20 weeks. But states are undeterred by such pedestrian concerns as constitutionality.

Pushing these bans are a deliberate effort to prompt a challenge to the Roe decision, which anti-choice groups believe they can win.

Second, the overwhelming majority of abortions (close to 99 percent) happen before 21 weeks. Those that happen after that are often because of a complicated situation – such as the discovery of a severe fetal abnormality – and the path forward should be determined by a woman and her doctor, not by politicians looking to score points with their base.

Finally, and perhaps most importantly, these bans are part of an anti-choice agenda with a much broader goal: banning abortions across the board. From mandatory waiting period laws to “personhood” efforts which would give embryos full legal rights from the moment of conception, the anti-choice movement is playing the long game and slowly “chipping away at choice.”

When legislators try to insert themselves into decisions that should be made by women and their health care providers, it’s more than a political ploy. It’s a real threat to every woman’s health and autonomy.


The Personhood Divide: The Anti-Choice Movement's Bitter Feud Over The Best Way To End Legal Abortion

(Originally posted on

The “personhood” movement — those who seek sweeping bans on all abortion and common types of birth control in an effort to confront Roe v. Wade head-on — is hugely divisive within the anti-choice community. Groups like National Right to Life Committee, which have been pushing a more careful, incremental approach toward ending legal abortion, worry that the personhood movement risks undermining their progress toward the ultimate goal. Meanwhile, personhood advocates accuse groups like NRLC of selling out the ultimate goal in the service of small steps that they claim will never lead to the full criminalization of abortion.

A few months ago, we published a series of posts exploring the anti-choice personhood movement, its history, and how it is confronting a changing political landscape. People For the American Way Foundation has adapted that series into a report, “The Personhood Movement: Where It Comes From And What It Means for the Future of Choice,” which was released today. 

As the national debate over a NRLC-backed federal bill banning abortion after 20 weeks of pregnancy have shown, one of the major sticking points between the two factions is whether the anti-choice movement should accept “compromises” that exempt women who have been raped from abortion bans. From the report’s introduction:

The largest and best-funded groups opposing abortion rights have, over the past several years, achieved astounding success in chipping away at women’s access to legal abortion in the United States. But these successes, Personhood Alliance’s founders maintain, are too small and have come at a grave cost.

In seeking mainstream approval for anti-choice politics, personhood advocates believe, groups like the National Right to Life Committee (NRLC) and Americans United for Life (AUL) have adopted a secular tone and downplayed their Christian origins. In focusing on drawing attention to issues like late-term abortion, they may have won some support for the cause but have done little to end the procedures they targeted. In seeking incremental successes, personhood advocates argue, the movement has given up on making a moral argument for the humanity of fertilized eggs and fetuses and lost sight of its larger goal of eliminating legal abortion entirely.

But the greatest betrayal in the eyes of these personhood advocates is the willingness of major anti-choice groups to endorse legislation that includes exceptions for pregnancies resulting from rape and incest. The personhood movement’s leaders contend that these political concessions are not only immoral and intellectually inconsistent, but also threaten to undermine the movement’s goals in the long term.

The personhood movement provides an interesting look into the bitter “incrementalist vs. immediatist” divide that has split the anti-choice movement since before Roe v. Wade. Both sides want an end to legal abortion; neither trusts the other to get there. But in the meantime, each is making progress in making it more difficult and more dangerous for women to access safe and legal reproductive care.

PFAW Foundation

Hobby Lobby: 'Closely Held' Does Not Mean 'Mom and Pop'

In the Supreme Court’s decision in Hobby Lobby, the Court held for the first time ever that a for-profit corporation counts as a “person” under the Religious Freedom Restoration Act and that a “closely held” corporation basically shares the religious exercise rights of its owners.  This leads American law into a treacherous minefield, as Justice Ruth Bader Ginsberg made clear in her dissent.

It’s worth pointing out, as Justice Ginsberg also noted, “’Closely held’ is not synonymous with ‘small.’” Hobby Lobby is a massive corporation employing some 13,000 people, but there are other closely held companies that are much larger. In a footnote, Ginsberg mentions family-owned Mars, Inc. and closely held Cargill, which are both among the largest five private companies in the country. Guess which is number two? Koch industries, with $115 billion in revenue and 60,000 employees. Brothers David and Charles Koch reportedly own 84 percent. Rounding out the top five private companies are Dell and Bechtel. Those five companies employ more than 436,000 people. What religious claims might their owners find useful to make in undermining laws that protect their workers?

PFAW Foundation

Albuquerque says no to dangerous local abortion ban

Last week PFAW invited its activists to join NARAL Pro-Choice America in beating back a dangerous local abortion ban in Albuquerque, New Mexico. These efforts proved successful yesterday, as the people of Albuquerque rejected the first-ever municipal attempt to ban abortion after 20 weeks by a margin of 55-45 percent. NARAL’s Ilyse Hogue welcomed the ballot measure’s defeat:

We hope today's resounding defeat of this abortion ban sends a clear message to the extreme forces around the country now trying to impose their agenda on cities around this country. When voters hear the real stories of real women and families facing these difficult decisions, they understand the danger and complexity of putting government between women and their doctors at these moments.

We stopped anti-choice activists in New Mexico this time, but the fight against growing threats to women’s healthcare access and autonomy continues across the country and in Washington. At a time when conservatives in Congress are trying to push through legislation that would restrict women’s access to reproductive care, yesterday’s victory is significant, but it is just the beginning. Women’s health and freedom are at risk, and we’ll keep fighting for legislation that protects them.


New TV Ad! "Mitt Romney's Supreme Court: Too Extreme For America"

A new ad released by People For the American Way holds Governor Mitt Romney accountable for his extreme agenda for the Supreme Court, including his decision to name right-wing ideologue Robert Bork as his chief judicial adviser.

In an interview this week, Romney insisted that the right of a woman to have an abortion in cases of rape and incest would be decided by the Supreme Court. But Romney failed to mention his promise to appoint Judges who would drastically limit women's rights.

In our ad, released today and running in the Tampa area during the RNC, People For the American Way corrected the record.

Mitt Romney says that a woman's right to choose an abortion even in cases of rape and incest isn't up to him.

Romney: "This is the decision that will be made by the Supreme Court."

But Romney has promised to appoint Supreme Court Justices who would overturn Roe v Wade. As his chief judicial advisor he chose Robert Bork, a man with a long record of hostility to women's rights.

Mitt Romney: Too extreme for women. Too extreme for America.

For more, visit our campaign site at



Why is Mitt Romney Outraged at Todd Akin and Not at Paul Ryan?

Mitt Romney is outraged! He's insulted! He's offended!

Why? A Republican Senate candidate dared to state a position on choice that is exactly the same as that of Romney's own running mate.

Missouri Rep. Todd Akin is attracting plenty of attention for his bizarre and idiotic justification for refusing to allow rape victims to have abortions. But the extreme policy position behind those comments - a policy that is the GOP standard -- should be getting just as much attention.

Akin explained this weekend how rape victims shouldn't be allowed reproductive choice because they already have access to some mysterious anti-pregnancy control system: "First of all, from what I understand from doctors [pregnancy from rape] is really rare. If it's a legitimate rape, the female body has ways to try to shut that whole thing down."

Romney responded today in an interview with the National Review:

"Congressman's Akin comments on rape are insulting, inexcusable, and, frankly, wrong," Romney said. "Like millions of other Americans, we found them to be offensive."

"I have an entirely different view," Romney said. "What he said is entirely without merit and he should correct it."

What is Romney's "entirely different view"? That Rep. Akin doesn't have a basic understanding of the female anatomy that he's so interested in legislating? That Akin feels the need to draw a distinction between "legitimate rape" and "illegitimate rape"? That Akin thinks rape victims shouldn't be able to choose whether to carry their rapists' children?

Romney should start by directing his outrage at his own running mate. Rep. Paul Ryan not only opposes abortion rights for rape victims, he was a cosponsor of a so-called "personhood" amendment that would have classified abortion as first degree murder and outlawed common types of birth control. Ryan has also bought into the "legitimate rape" nonsense, cosponsoring legislation with Akin that would have limited federal services to victims of "forcible rape" - a deliberate attempt to write out some victims of date rape and statutory rape.

Romney himself has flirted with the "personhood" idea, telling Mike Huckabee during the primary that he'd "absolutely" support such a measure. When he was later confronted about the comment at a town hall meeting, it became clear that Romney had no idea how the process he wanted to legislate actually worked.

And Romney hasn't always been keen to stand up for the victims of rape. In a Republican debate in February, he actually got in an argument with Newt Gingrich over who was least in favor of requiring hospitals to provide emergency contraception to rape victims they were treating.

Now the Romney campaign is trying to distance itself from Akin by saying that "a Romney-Ryan administration would not oppose abortion in instances of rape." But Romney has also vowed to nominate Supreme Court justices who would overturn Roe v. Wade, returning to states the power to outlaw or allow abortion as they choose. If Romney and anti-choice activists get their wish from the Supreme Court, a Romney-Ryan administration would have no power to stop states from imposing whichever abortion bans they decide to impose. The promise to carve out an exception for rape victims is not a promise they would be able to keep.

The real scandal of Rep. Akin's comments isn't the faulty sex-ed he's teaching. Instead, his comments expose the anti-choice movement's skewed and condescending view of women. Akin can't accept that a woman who fits his definition of virtue - the victim of a "legitimate rape" - would also need to seek an abortion, and he has made up false science to support that assumption. But with or without the weird right-wing science, that same false distinction underlies all anti-choice policies - including those embraced by Romney and Ryan.

Romney can feign all the outrage he wants at Rep. Akin's misogynistic pseudo-science. But until he can draw a clear distinction between Akin's policies and his own, his protests will ring hollow.

This post originally appeared in the Huffington Post.


Wisconsin’s Walker Signs Religious Right Wish-List of Bills

We noted on Friday that Wisconsin Gov. Scott Walker, working with a Republican-led state legislature, had taken the extraordinary step of repealing the state’s enforcement mechanism for pay discrimination lawsuits.

But it turns out that’s not all. Daily Kos points out that along with equal pay repeal, Gov. Walker signed what reads like a wish list of bills from the Religious Right:

The first bill bans abortion coverage through policies obtained through a health insurance exchange, set to be created under the federal health care reform law starting in 2014. The only exceptions would be in cases of rape, incest or medical necessity. [...]

The second bill requires a woman seeking an abortion to undergo an exam and consult with a doctor alone, away from her friends and family. The doctor must determine whether someone is pressuring the woman into the procedure. Doctors who break the law could be charged with a felony. [...]

The sex education bill requires teachers in schools that offer sex education to stress abstinence as the only sure way to prevent pregnancy and sexually transmitted diseases.

The bill also declares that sex education teachers do not have to address contraception. That's a dramatic shift from current state law, which requires teachers to instruct students on birth control options.

And it doesn’t end there. Walker has now decided to stop defending a law that gives gay and lesbian couples the right to visit each other in the hospital, a law that an anti-gay group is disputing in court.

That’s right. After making it harder for women to sue for pay discrimination, setting up demeaning hurdles for women seeking legal abortions, and giving the go-ahead for ineffective sex ed, Gov. Walker is going out of his way to try to keep same-sex couples from visiting each other in the hospital.

Is this the governor’s “jobs” agenda?


Virginia Senate passes less terrible, but still terrible, mandatory ultrasound bill

Last week, Virginia Gov. Bob McDonnell buckled under nationwide pressure and forced his allies in the state’s legislature to revise a bill they had passed mandating forced, medically unnecessary transvaginal ultrasounds for women seeking abortions. That the bill was tweaked to no longer require women to be vaginally penetrated without their consent – a requirement that McDonnell, until he was met with a national outcry, was all set to sign into law -- was an important victory for pro-choice and common-decency activists.

But we need to remember just how far anti-choice politicians are willing to go. Just a few years ago, before the War on Women kicked into full swing, we wouldn’t have known that we’d have to be fighting state-mandated vaginal probes. In fact, just a few years ago, the amended bill passed by the Virginia Senate today would have been seen as extreme in itself.

The bill that the Virginia Senate passed in a 21-19 vote today requires all women seeking an abortion to first undergo a medically unnecessary external ultrasound – unless they can prove they are pregnant as a result of rape or incest.

It’s important to remember just how extreme the bill still is. Virginia Republicans are mandating that doctors perform a medically unnecessary procedure whether or not their patient requests it, unless that patient can produce a police report to prevent it. It creates a situation that’s ethically difficult for doctors and absolutely demeaning for women.

If Gov. McDonnell signs the bill, which he is expected to do, Virginia will join seven other states that currently require pre-abortion ultrasounds.