According to the Guttmacher Institute twenty states have introduced TRAP laws this year alone, with Arkansas, Utah, Virginia, and Kansas actually enacting such laws this year.  And now Pennsylvania is on the verge of becoming the next state to enact TRAP laws that will increase abortion costs for poor women and force financially constrained clinics to close their doors.  South Carolina enacted some of the most seminal TRAP laws regulating clinics back in 1996.  TRAP laws and the subsequent regulations focused on abortion providers are designed specifically to shut down clinics and make abortions increasingly unaffordable under the guise of safeguarding women’s health and safety from unscrupulous providers.

Last week, the Washington Post reported that anti-abortion activists are now lobbying Virginia’s State Board of Health to model their regulations after South Carolina’s abortion clinic regulations.  South Carolina’s regulations were enacted in 1996 and faced a federal court challenge from “[t]wo abortion clinics and an abortion provider…claiming they placed an undue burden on women’s decisions to seek abortions and were unfair because they singled out abortion providers over other medical professionals.”  Ultimately, the 4^th Circuit of the U.S. Court of Appeals found the regulations to be constitutional.  The Court ruled that the regulations served a “…valid state interest…[did]…not strike at the abortion right itself and required only modest increases in the cost of abortions.”

In February, Virginia enacted legislation requiring the state’s twenty-one abortion clinics to be regulated in the same manner as hospitals.  Democratic legislators and pro-choice advocates “…said it effectively would restrict a woman’s access to abortion services by forcing the state’s twenty-one clinics to meet standards set by the Board of Health regulating hospitals — standards currently not required of other physician’s practices performing similarly invasive medical procedures.”  In fact, these regulations may eventually force seventeen of the twenty-one clinics to close.

Kansas Governor Sam Brownback (R) also recently signed a law requiring “…annual, unannounced inspections of abortion clinics…[and]…new health and safety rules specifically for them…”  Pro-choice advocates now also fear that Kansas’s three abortion clinics may be forced to close as result of these new rules.  In fact, one Kansas abortion provider said “…it will be forced to spend $10,000 immediately on a new exit mandated by the law.”  The law also “…directs the Kansas Department of Health and Environment to write standards for exits, lighting, bathrooms, and equipment.”  Clinics violating these new rules could be fined or shut down altogether.  Peter Brownlie, president and chief executive officer of Planned Parenthood of Kansas and Mid-Missouri, said, “[t]he only effect is to make the services more expensive and more difficult to obtain, or more difficult to provide…”

South Carolina’s regulations similarly subject abortion providers to periodic inspections.  However, the transparent desire to frustrate abortion providers out of business became clear when South Carolina regulations arbitrarily established regulations for “…the laundering of linens and the outside appearance, including cutting of the grass.”  Ultimately, only three clinics survived the regulatory assault out of the fourteen abortion clinics in South Carolina at the time the regulations were imposed.  The overwhelming reason why these regulatory constraints are shutting down clinics in these states is because the regulations mandate structural changes to the buildings that most clinics simply cannot afford to implement.  NARAL Pro-Choice Virginia executive director Tarina Keene explained, “[i]t wasn’t that the services that they offered were lacking in any way…It was because they could not afford to retrofit their doctors’ offices to meet those extremely high, extremely expensive structural requirements.”  She warned, “[t]hey’re basically trying to overturn Roe by regulating it out of existence…”

Meanwhile, in Pennsylvania, under the guise of trying to prevent the tragic circumstances surrounding the abominable conditions at an abortion clinic “…operated by D. Kermit Gosnell, where a grand jury reported filthy and unsafe conditions,” Democrats in the state house failed to stop a bill that “…would place new and onerous requirements on abortion clinics.”  Last month, the Pennsylvania House of Representatives approved legislation requiring abortion clinics “…to maintain the same standards as other freestanding ambulatory surgical centers.”

Then on Tuesday, the Pennsylvania state Senate passed a bill imposing strict standards on abortion clinics “…that would increase inspection, space, staffing, and other requirements for the 20 clinics operating throughout the state.”  The ACLU of Pennsylvania warned that “…the bill would ‘cut off access to health care’ by driving clinics out of business’…”

Recently, the Patriot-News editorial board criticized this legislation saying that lawmakers are “…using the pretense of the Gosnell case to push an anti-abortion agenda.  The result would be that the legal right of a woman to get an abortion in Pennsylvania will likely be severely hindered, especially for the poor.”  The editorial board explained that, among other consequences, the legislation “…could increase the cost of an abortion by as much as $1,000.”  Additionally, the same standards that “…now apply to ambulatory surgical center would be the new standard for abortion clinics…This will make abortion clinics spend hundreds of thousands of dollars to make structural changes to their facilities and alter their staffing.”

The atrocities discovered at Dr. Kermit Gosnell’s Philadelphia abortion clinic are being used by anti-choice lawmakers around the country as the pretext for imposing severe new restrictions on abortion clinics intended to shutter these clinics permanently.  The Gosnell clinic tragedy should not be politicized and exploited to justify an anti-abortion agenda that will only further endanger the lives of the very women that anti-choice politicians claim they only wish to protect.

Pennsylvania State House Representative Dan Frankel (D) wrote an op-ed in the Pittsburgh Post-Gazette similarly criticizing the legislation.  He explained that the “…the real problem with the bill…[is]…Instead of helping us pursue criminals, it would drive women into criminal clinics.  Poor women chose to see Mr. Gosnell because he was cheap.  If we force the best providers to raise their prices, we will create demand for more Gosnells.”

Unsurprisingly, the women that ended up being victimized by Gosnell and his staff were poor women and women from immigrant communities.  In January, Ms. Magazine blog detailed the conditions within the clinic commenting that Gosnell “preyed” on women; and that Gosnell’s predatory ways “…thrive[d] ‘because the women in question were poor and of color, because the victims were infants without identities, and because the subject was the political football of abortion’.”  Ms. Magazine predicted back in January that Gosnell would inevitably be used by anti-abortion forces to increase restrictions on abortion access by depicting “…Gosnell’s practice as the norm…[and] his clients as misguided women who wouldn’t have had abortions if they knew what it was.  They will attempt to bully the Pennsylvania legislature to pass more restrictions on abortion providers.”  Predictably, that has indeed happened in Pennsylvania and other states will surely follow in those same footsteps emboldened not only by the Gosnell case but also by the fact that South Carolina’s onerous regulations have withstood constitutional challenge and survived the “undue burden” standard first enunciated by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey.

The Patriot-News editorial board emphatically reminded lawmakers that regulatory constraints in Pennsylvania would “…almost certainly mean that women who can’t afford the increased cost of a legal abortion will seek the procedure in clinics that are not regulated and inspected.  If legislators want proof, they need only look at the testimony of a woman who spoke during a recent state Senate committee hearing who said she went to Gosnell’s clinic because she couldn’t afford to have an abortion at a Planned Parenthood clinic.”

Increasing the economic costs of abortion access imposes unreasonable and burdensome hurdles on low-income women; and sadly as state legislatures continue their assault on abortion rights by enacting ever increasing barriers to abortion access, the most vulnerable women throughout the nation end up paying the ultimate price.  Indeed, when anti-choice political zealots “…force poor women who want to terminate unwanted pregnancies to wait until they can raise enough money to pay for a legal procedure, we force their abortions later in the pregnancy.  And we force them into the hands of disreputable clinics…This is what happens when we marginalize women’s health.”

Whether we are measuring the discriminatory impact of the Hyde Amendment, or mandatory ultrasounds driving up abortion costs, or the ever increasing waiting periods that force women to risk not only their livelihoods but their health and safety by delaying abortion services, these restrictions on access inevitably and disproportionately affect the most vulnerable and politically powerless women throughout the country.  Notably, “[m]andatory delays of hours or days increase medical risks by inhibiting earlier, safer abortions.  Delays may force women to make several trips to a clinic, creating a time burden as well as a potential financial burden.”  Most significantly, these barriers “…serve no medical purpose and are a ruse to decrease the accessibility of abortion.”  And now we can add paternalistic and arbitrary TRAP laws, masquerading as reasonable safety regulations, to the growing list of ways in which anti-choice politicians deny women their fundamental constitutional rights.

Moreover, the fact that poor women specifically bear this undue burden reminds us that with each passing piece of legislation abortion becomes progressively isolated from the basic definition of reproductive health care.  And despite anti-choice rhetoric to the contrary, these restrictions do not deter women from seeking out abortion services; they only serve to further endanger the health and safety of the women who can least afford to be confronted with fewer and fewer alternatives for exercising their fundamental reproductive rights.

In the final analysis, when anti-choice politicians invariably defend creating an environment that makes abortion less accessible and less safe, the ultimate goal of banning all abortions unmasks their unapologetic belief that in the ongoing war on women, women’s bodies are nothing more than collateral damage.

Keynote Speaker Kathryn Kolbert, attorney who argued Planned Parenthood v. Casey before the Supreme Court.

NARAL Pro-Choice Washington PAC’s 2011 Power of Choice Luncheon featured keynote speaker Kathryn Kolbert.  Kathryn Kolbert is Director of the Athena Center for Leadership Studies at Barnard College and was the attorney who argued Planned Parenthood v. Casey before the Supreme Court in 1992.  Planned Parenthood v. Casey was a seminal case which protected the constitutional right to an abortion yet scaled back the constitutional protections provided by Roe v. Wade.

I sat down with Ms. Kolbert last Monday after her inspirational speech that elicited cheers from the capacity audience at the Conference Center at Convention Place in downtown Seattle.

We discussed the ongoing federal attacks and state legislative assault on reproductive rights across the country.  I was eager to get her thoughts on the suggestion by some in the media that pro-choice advocates are not doing enough to combat these legislative attacks through litigation.  The fear being that the current composition of the U.S. Supreme Court would most certainly further dismantle the legacy of Roe v. Wade as well as Planned Parenthood v. Casey.

Ms. Kolbert disagrees with the idea that pro-choice advocacy organizations should automatically challenge the some of the more egregious legislation coming out of more and more state legislatures across the country.  Rather, she thinks the decision to litigate must be handled on a case-by-case basis, looking at the specific harms of the law, what can be proved in a court of law, and whether there are doctors or affected women who have standing to challenge it.

She also thinks that the laws affecting late abortion, such as the 20 week abortion bans that have been enacted in Indiana, Nebraska, Kansas, Idaho, and Oklahoma which affect only a very few people are the most difficult to challenge and pose the greatest risks should the court challenge reach the Supreme Court.  Ms. Kolbert agrees with Nancy Northup, the president of the Center for Reproductive Rights, that it is necessary to be thoughtful and cautious when considering litigation.

In a recent blog post at RH Reality Check, Ms. Northup disagreed with the idea that pro-choice litigators are gun shy.  She noted that recent commentary from Slate’s Dahlia Lithwick and MSNBC’s Rachel Maddow ignores the fact that the Center for Reproductive Rights has “…filed a host of new lawsuits last year and will do so again before the state legislative year is up.”  Ms. Northup explained:

Media pundits are stoking the anxiety by painting pro-choice litigators as gun shy.  Slate’s Dahlia Lithwick recently wrote a piece suggesting that the pro-choice movement won’t challenge the new abortion restrictions for fear of losing in the Supreme Court.  She writes that the Court’s 2007 decision to uphold the so-called “partial birth” abortion act has “frightened those who are pro-abortion rights into being grateful for what they have.”  She then asks, “Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical?”  Rachel Maddow also aired a segment that delivered a similar message, concluding that so many of the anti-abortion bills that are blatantly unconstitutional have gone unchallenged because the pro-choice movement has “apparently so far made the calculated decision to let it slide” in order to protect Roe v. Wade from being overturned.

Moreover, Ms. Kolbert believes that Justice Kennedy may be willing to undermine or cut back on his decision in Planned Parenthood v. Casey, now that Justice Sandra Day O’Connor has left the Court.  Ms. Kolbert believes that one of the key reasons Planned Parenthood v. Casey developed into an unexpected victory was because of the considerable influence of Justice O’Connor.  She questions whether Justices Elena Kagan or Sonia Sotomayor have the same degree of influence within the current Supreme Court.  Certainly, Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas are more than willing to uphold virtually any abortion restrictions that are presented to the Court.

Ms. Kolbert and Ms. Northup both agree that the current makeup of the Supreme Court demands strategic decision making when it comes to what laws to challenge and when to challenge those laws.  Ms. Northup said, “[w]e don’t jump just because the anti-choice zealots say jump.  We won’t be baited into a lawsuit.  If a state passes a law that impairs women’s access to abortion services, and that fails to meet constitutional standards, it will be challenged — when the circumstances and timing are right.”

And when addressing the specific issue of the 20 week abortion bans, both Ms. Kolbert and Ms. Northup agree that risking legal challenges to these laws is a lesser priority because these bans affect or regulate a “…small number of procedures that occur later in the pregnancy.”  In fact, “…abortions performed after 20 weeks are exceedingly rare.  Only 23 percent of abortion providers even offer them; the Centers for Disease Control and Prevention reports that just 1.4 percent of abortions occur at 21 weeks or beyond.”

Ms. Northup explained “[w]e’re focused on pursuing cases that ensure that women have access to all abortion services.  They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”  Nevertheless, “…abortion-rights advocates tell Mother Jones they do intend to fight the 20-week bans—they’re just waiting for the right test case.  Janet Crepps, the deputy director for the U.S. legal program at the Center for Reproductive Rights, agrees and stated, “I think they are really trying to bait us into rushing into court…We’ll go when we’re ready.  We’re not going to go just because they want us to.”

Finally, Ms. Kolbert and I discussed the feeling by some in the pro-choice community that President Obama, although surrounded by strong pro-choice advocates within his administration, has himself been reluctant to take a firm and unequivocal stand in support of abortion rights.  Notably, that the compromise with anti-choice politicians to reinforce the Hyde Amendment within the Affordable Care Act (ACA) was not really much of a political sacrifice for President Obama at all.  And certainly the fight over the Hyde Amendment was never worth risking the President’s arduous battle over his signature and defining legislative achievement.

Moreover, ACA has also opened the door to further restrictions in insurance coverage for abortion services.  The National Women’s Law Center reports that “[e]leven states…have enacted laws prohibiting insurance coverage of abortion in state exchanges.  Five of those states…go even further and reach all plans in the state, banning insurance coverage of abortion in plans outside the exchange as well.”  And since ACA “…explicitly allows states to pass laws banning private insurance coverage of abortion in any exchange set up in their state,”  this problem will only get worse over time until it becomes too burdensome for any insurance carrier to offer abortion coverage.  We will eventually see all women – low-income and middle income, being deprived of basic access to abortion care services.  ACA may turn out to be the precise vehicle by which anti-choice state legislatures completely extinguish insurance coverage for abortion services in this country.

Conscience magazine, published by Catholics for Choice, recently “…asked leading authors to provide a comprehensive analysis of President Barack Obama’s prochoice record.  Many in the progressive reproductive rights and women’s rights field have whispered it, some have murmured it, but Conscience has finally broken the silence about the administration’s abysmal failure to take action on choice issues.”

Open and honest discussions about these political realities, particularly the issues facing the Obama administration in the 2012 election cycle, and challenges presented by the current makeup of the U.S. Supreme Court, must become integral components of the all hands on deck strategy and the dialogue that is needed to combat the ongoing war on choice that is spreading throughout the country.

Meanwhile, the continuing national fight over Planned Parenthood defunding efforts in the states like Indiana, Kansas, Texas, New Hampshire, Oklahoma, North Carolina, Minnesota, Utah, and Wisconsin has forced the Obama administration to draw a line in the sand.  State efforts to defund and disqualify Planned Parenthood from the Medicaid program are illegal.  Federal Medicaid law prohibits any state from limiting a Medicaid beneficiary’s family planning choices based solely on the fact that the provider in question also happens to provide abortion services.  This is settled law.  Similarly, efforts to limit federal funding for abortions under the Hyde Amendment for rape and incest victims also violate federal Medicaid law.  However, two states are now attempting to do just that, following in the footsteps of a third state that has been violating federal Medicaid law since 1994.

Iowa and Louisiana are attempting to limit federal funding for abortions under the Hyde Amendment solely for cases of life endangerment.  South Dakota has been limiting federal funding for abortions under the Hyde Amendment solely for cases of life endangerment ever since the Clinton administration expanded the Hyde Amendment to include pregnancy resulting from rape or incest in 1994.  South Dakota has never faced any sanctions from the federal government for this blatant violation of federal Medicaid law.

In Iowa, House Republicans are pushing legislation to eliminate the rape and incest exceptions explicitly permitted under the Hyde Amendment.  Last week, the Des Moines Register reported:

Every state but South Dakota follows the federal requirements, according to the Guttmacher Institute, a reproductive health advocacy organization in New York.  The Iowa proposal mirrors South Dakota law: It allows Medicaid to pay for abortions only when a mother’s life is jeopardized and not in cases of rape or incest.  Iowa human service officials were investigating earlier this year whether Iowa would risk losing billions of dollars in federal Medicaid grants if the proposed legislation were adopted.  However, federal officials have not taken such action against South Dakota.  Since 2005 there have been three Medicaid-paid abortions for cases of rape in Iowa.  There were no requests for abortions resulting from rape or incest last calendar year, according to information from the Iowa Department of Human Services.

Responding to this proposed legislation, ACLU of Iowa legal director Randall Wilson, said, “[w]hat are we saying here?…We’re saying that if a rich woman is raped, she can get an abortion because she can afford one, but a poor woman will have to bear the child.  There’s no social justice in that.”

And last month the Times-Picayune reported that a bill approved by the Louisiana House Health and Welfare Committee:

…would make it a crime to provide an abortion or prescribe drugs with the intent of ending a pregnancy.  There would be exceptions for medically necessary abortions, as certified by a physician, but not for cases of rape or incest.  The measure also would bar the Louisiana Medicaid program from covering any abortion, also with no exception for cases of rape or incest, a move that state health officials said could threaten about $5 billion in federal Medicaid financing.

The Guttmacher Institute explains that the Hyde Amendment, while only permitting the use of federal funds for abortion,

…in cases of life endangerment, rape or incest, has guided public funding for abortions under the joint federal-state Medicaid programs for low-income women.  At a minimum, states must cover those abortions that meet the federal exceptions.  Although most states meet the requirements, one state is in violation of federal Medicaid law, because it pays for abortions only in cases of life endangerment.

In response to this latest attempt to exclude rape and incest victims from Medicaid coverage, the federal government recently warned Louisiana that their Medicaid funds could be cut off.  The bill “…defines human life as beginning at the moment of conception and makes it a crime to terminate a pregnancy except when the birth would endanger the mother’s life…”

Stephen Russo, the executive counsel for the Louisiana state Department of Health and Hospitals, said that the Centers for Medicare and Medicaid Services contacted his office and told him that, “…Louisiana cannot continue to receive federal funds for Medicaid if it violates the Hyde Amendment.”  Notably, in 1993, when Louisiana refused to comply with the expanded Hyde Amendment that included abortion coverage for rape and incest, the Centers for Medicare and Medicaid Services “…said that a state can’t participate in Medicaid if it doesn’t fund abortions outlined in the Hyde Amendment’s exceptions.

Fortunately, The Advocate reported that the Louisiana legislation “…suffered a likely fatal blow Wednesday when it was sent to a Louisiana House committee amid concerns the measure could cost the state $4.5 billion in federal health care funds… the House voted 65-30 to instead send the measure to the House Appropriations Committee because of concerns the bill would run afoul of federal law.”  The House Appropriations Committee Chairman explained that the proposed legislation needed to be re-examined because it “…does not include an exemption for pregnancies resulting from rape or incest…[and]…could jeopardize funding…”  The original sponsor of the bill, state Representative John LaBruzzo (R), pleading with the Louisiana House said, “…re-turning it to a House committee for further study would kill the measure because the Legislature adjourns on June 23.”  LaBruzzo also challenged the argument “…that the state stood to suffer a major loss of federal funds if his bill became law…[saying]…It is not realistic.”

Of course, these ongoing attempts in the states to limit all funding for abortion services, whether directly or allegedly indirectly is nothing new.  Slate’s Dahlia Lithwick points to a 2002 Guttmacher Institute report that “…indicates, efforts to deny family planning funding to any agency that also provides abortions go way back: The ‘campaign—to ban both direct and ‘indirect’ government support for abortion—was conceived almost before the ink was fully dry on the 1973 Roe v. Wade decision.’  The report also makes clear such efforts have failed time and again in both state and federal courts.”  Meanwhile, the fight over Planned Parenthood and abortion rights will most certainly be a mainstay during the 2012 elections, with everyone taking sides in the abortion messaging war.

Does this movement in Louisiana and Iowa represent an extension of an emboldened anti-choice movement being spurred on by the ongoing campaign to stop the alleged indirect funding of abortions at Planned Parenthood?  Or does this attack on the Hyde Amendment actually represent an alarming political shift regarding rape and incest victims revealing something far more insidious: the further trivialization of rape and rape victims by anti-choice politicians?

Limiting federal funding of abortions became a national focus within the House of Representatives this year with attempts by the GOP leadership to redefine or limit the meaning of the Hyde Amendment’s rape exception to mean only “forcible rape” leaving open cases of statutory rape or possibly date/acquaintance rape.  In late January, when Representative Chris Smith (R-NJ) “…introduced the No Taxpayer Funding for Abortion Act (H.R. 3), which sought to further restrict abortion funding for all women…in drafting an exception to allow abortion funding for survivors of rape, the bill defined ‘real’ rape exclusively as ‘forcible’ rape.  For sexual assaults that didn’t fit that narrow definition, funding for an abortion would be denied.”  But when the GOP leadership was confronted with an onslaught of outrage, they decided to eliminate the “forcible rape” language from H.R.3.

And even though the ensuing outrage that followed that first attempt to redefine rape under the Hyde Amendment failed, Mother Jones reported that the GOP leadership was back at it again in May.

Republicans were insisting that Medicaid has never paid for abortions in the case of statutory rape.  However, the “…Center for Medicare and Medicaid Services (CMS)…say that’s not true: existing law doesn’t allow states to distinguish between different types of rape when it comes to funding abortions.”  In fact, a CMS spokeswoman stated, “[a]s we said before, we have always considered rape to be rape and we have never made a distinction under the Hyde amendment on different types of rape under any administration that we can remember…I hope this is settled now: rape is rape.”  Moreover,

Republicans offer no evidence…that Hyde distinguishes between statutory and “forcible” rapes.  And no such evidence seems to exist.  Congressional Quarterly’s summary of the legislative history of the current version of the Hyde Amendment contains no mention of statutory rape.

The House GOP leadership was and still is being heavily influenced by the U.S. Council of Catholic Bishops and the National Right to Life Committee.  The National Right to Life Committee believes that the statutory rape exception is a “…’brazen effort’ by abortion rights groups to exploit the rape exception…” in the Hyde Amendment.  They believe this statutory rape “excuse” is just a plan to “…federally fund the abortion of tens of thousands of healthy babies of healthy moms, based solely on the age of their mothers.” And the U.S. Council of Catholic Bishops argued that the House GOP leadership was simply trying “…to prevent the opening of a very broad loophole for federally funded abortions for any teenager.”

Meanwhile, Ms. Magazine and the Feminist Majority Foundation have been waging an online campaign asking the Department of Justice and the FBI to change the very definition of rape.  Notably, “[s]ince 1929, the FBI’s Uniform Crime Report (UCR), which tallies all crimes reported to local law enforcement each year, has used this archaic definition of rape: ‘The carnal knowledge of a female forcibly and against her will’.”  This archaic definition leaves out many rape victims from the official FBI statistics, including:

…victims of nonconsensual sodomy and oral sex, and those raped with fingers, fists, or objects.  And all male victims, of course.  Also, because the definition includes the word ‘forcibly, police departments often interpret the rule (against UCR guidelines) as leaving out rapes of women with physical or mental disabilities and those who were unconscious or under the influence of drugs and alcohol (despite the fact that at least 22 percent of all rapes involve those substances or incapacitated victims—and some studies put the number as high as 77 percent). The assumption, strangely, is that those women weren’t ‘forced.’

And recently CNN op-ed contributor LZ Granderson argued that the abortion debate “trivializes rape” pointing to remarks made recently by “…Kansas State Rep. Pete DeGraaf…during a debate centered on banning insurance companies in Kansas from offering abortion coverage as part of their general health plans unless a woman’s life were at risk.”  Granderson provided other examples of politicians’ disregard for rape victims saying, “[i]t shouldn’t really matter which side of the fence you stand on regarding abortion: that tone, that rationale, has no place in the debate.  That more people, more women, were not angered by DeGraaf’s statements only highlights just how little we are paying attention to lawmakers.”

Then, there is the idea promoted by some in the anti-choice movement that women will actually lie about being raped to get free abortions.  Back in March, Indiana state Representative Eric Turner (R) made the following statement regarding a proposed amendment to legislation enacting a 20 week abortion ban that would have exempted rape and incest victims: “I don’t want to disparage in any way someone who has gone through the experience of a rape or incest — but someone who is desirous of an abortion could simply say that they’ve been raped or there’s incest.”  The amendment to the 20 week abortion ban, which Governor Mitch Daniels signed into law last month, failed.

CNN’s Granderson goes on to say:

If men feel comfortable enough to be on the legislative floor and suggest that women and girls lie about rape, or recommend that it is something they should prepare for, one can only imagine what is being said behind closed doors… The notions that rape is a possibility that women should plan for, or that abortions should not be provided to victims of rape or incest because some women might lie about an attack to get their insurance company to pay, reek of misogyny.

And, as part of the campaign to promote the Mississippi personhood amendment that “…would define a ‘person’ in the state’s constitution as ‘every human being from the moment of fertilization, cloning, or the functional equivalent thereof’…,”  Personhood USA is traveling around Mississippi on a “Conceived in Rape” tour advocating legislation that would force rape victims to bear children resulting from rape.  A spokeswoman for the organization said, “[i]f you really care about a rape victim, you would want to protect her from the abortion, and not the baby.  A baby is not the worst thing that could ever happen to a rape victim – an abortion is.”

Finally, there is the ongoing and shameful military ban on abortion coverage for our servicewomen.  On May 24^th the House Committee on Rules “…rejected an important amendment to the FY12 National Defense Authorization Act (H.R. 1540) that would have ended an unconscionable ban on insurance coverage of abortion care for military women and dependents in cases of rape and incest.”

But on June 2^nd, Representative Louise Slaughter (D-N.Y.) and Senator Kirsten Gillibrand (D-N.Y.) “…introduced the Military Access to Reproductive Care and Health Act (MARCH)… a bill that would authorize federally-funded abortions for women in the military who have been impregnated as the result of rape…[and]…would also allow servicewomen to use private funds to access abortion services at U.S. military facilities…”  Representative Slaughter said in a press release:

As our servicewomen risk their lives defending our country, it is deeply unfair that they are denied the rights of the Constitution that they defend.  Imagine being a victim of rape on a United States military base overseas being denied the abortion coverage, and then having to turn to a potentially unsafe local facility. It’s preposterous and incredibly unjust to the women who serve our country so proudly each day.

With the ongoing rape and sexual assault epidemic plaguing our military, it is truly indefensible to impose this punitive restriction and deny our servicewomen basic reproductive health care services.  And it is “…this discrepancy — putting servicewomen on a different plane than federal employees, federal prisoners and Medicaid recipients…that fuels much of the anger among those trying to change the policy.”

At the ACLU Blog of Rights, Sarah Lipton-Lubet explained:

In the face of this epidemic, federal law denies servicewomen and military families coverage for abortion care, even in cases of rape or incest. By contrast, the federal bans on abortion coverage for women enrolled in Medicaid, disabled women enrolled in Medicare, federal employees (other than members of the armed services), women who receive health care through the Indian Health Service, and women in federal prisons, all include exceptions for rape survivors. (The only other coverage restriction that doesn’t include a rape exception is the ban on abortion coverage for another group of women serving our country — those in the Peace Corps.)

And a recent San Francisco Chronicle editorial remarked that “[a]s a point of simple fairness, it is not right that the federal government covers abortion in the instance of rape for other federal employees, Medicaid recipients and those serving time in federal prisons, but not for female service members…It is an abuse of power by Congress over these women’s lives.”

The shocking statistics of sexual violence within the military cannot and should not be ignored; and to do so by punishing our servicewomen in this most shameful manner serves no purpose beyond fostering the ongoing belief that rape victims are simply undeserving of their fundamental reproductive rights.

Reproductive rights should not be a luxury enjoyed only by wealthy women – fundamental rights should not be defined by the amount of money in a woman’s pocket.  Accepting the Hyde Amendment as an inevitable and fated political reality means that we have ceded those rights as not being rights at all anymore.  And sadly, by accepting that reality we provide the political and societal leeway to further demonize abortion rights; that demonization inevitably creates opportunities for the anti-abortion movement to mainstream the notion that rape victims are undeserving of reproductive justice.  The pro-choice community must be willing to mount a full-throated offensive against the fundamental injustice of the Hyde Amendment.  Only then can we fight back against the rising movement to further erode abortion rights for rape victims.

Moreover, days after Dr. George Tiller was murdered, Attorney General Eric Holder, and members of the National Task Force on Violence Against Health Care Providers (Task Force) met with abortion rights groups to discuss the security needs of providers.  The Task Force was established in 1998 and charged with enforcing the FACE Act and coordinating criminal investigations of anti-abortion activities on a national level.  However, for all intents and purposes the Task Force was inactive during the eight years of the Bush administration.  The restoration of the Task Force has made the most significant impact and been the most effective tool in the ongoing battle to stem the tide of clinic violence over the past two years.  Specifically, the targeted coordination between federal and local law enforcement has created an effective working partnership that was so clearly absent and vitally needed during the Bush years.

May 31, 2011 marked the second anniversary of the assassination of Dr. George Tiller.  Dr. Tiller was attending church services in Wichita when he was gunned down by anti-abortion extremist Scott Roeder.  Scott Roeder would later be arrested, tried, and convicted of first degree murder.  On April 1, 2010, Roeder was sentenced to life in prison without the possibility of parole for 50 years.  Dr. Tiller was targeted by anti-abortion extremists for more than a decade.

On the two year anniversary this past Tuesday, Rachel Maddow discussed Dr. Tiller’s murder and the coordinated anti-abortion extremist campaign that created a culture of hate dating as far back as Operation Rescue’s “Summer of Mercy” protests in Wichita and Buffalo in 1991.  Congress enacted the FACE Act  after Dr. David Gunn was assassinated in Pensacola, Florida in March 1993.  The FACE Act bans “…blocking clinic doors, trespassing, making violent threats, arson, vandalism, stalking clinic employees, and other forms of violence.”  And even though “[m]any of these acts were illegal already…the law made clear that targeting a clinic with these crimes merited a federal response.”

The anti-abortion media campaign against Dr. Tiller also fueled hate against him; most notably the constant use of the term “Tiller the baby killer” by Fox News personality Bill O’Reilly.  Maddow remarked that Roeder’s ultimate goal was to cut off abortion access wherever possible.  And indeed, ever since Dr. Tiller’s death, there has been no abortion provider in Wichita or south central Kansas.

Attempts by Dr. Mila Means to restore abortion services in Wichita have been thwarted by protests at her office and at her home.  Dr. Means is now seeking alternative office space in Wichita because she was forced out of her office by her landlord who sued her claiming that her abortion practice “…would create ‘a clear nuisance’ and disturb the ‘peaceful possession’ of other tenants.”  Anti-abortion protesters have threatened her clinic and “…held ‘vigils’ outside the building where her office is located, even though she had not started to offer abortion services.”

In April, the Justice Department filed a FACE Act complaint against Kansas anti-abortion activist Angel Dillard; she is accused of sending a threatening letter to Dr. Means.  Dillard is now countersuing the Justice Department alleging “…that the government’s lawsuit against her has had ‘an unlawful chilling effect’ on her free speech and religious rights.”  The Justice Department recently “…filed an amended complaint against Dillard that added quotes from an Associated Press story which had quoted Dillard during a 2009 interview talking about her friendship with Roeder and her admiration that he had followed his convictions.”

However, abortion providers are not only targeted by violent anti-abortion extremists, but by anti-choice politicians as well.  Similarly, Dr. Tiller was not only targeted by anti-abortion violent extremists, but also by former Kansas State Attorney General Phil Kline.  Kline is currently accused of ethics violations stemming from his relentless harassment and investigations of Dr. Tiller.  Kline charged Dr. Tiller with misdemeanors accusing him of performing illegal abortions in December 2006.  But when that case was dismissed, Kline’s successor filed additional charges in 2007.  Eventually, Dr. Tiller was acquitted of all wrongdoing in late March 2009; and shortly thereafter he was murdered on May 31, 2009.  The political targeting of specific abortion providers and providers in general, inevitably engenders a climate of hate and violence.

Last Friday, Rachel Maddow discussed a recent arrest in Wisconsin involving the targeting of abortion providers and clinic workers at a Planned Parenthood clinic in Madison, Wisconsin.  The man arrested in that case had every intention of murdering Planned Parenthood workers.  Maddow discussed the arrest within the general context and history of clinic violence throughout the nation.  Specifically, she noted the terror inflicted upon abortion providers by the radical anti-abortion movement has resulted in the murder of eight doctors and clinic workers over the past 18 years; and seventeen attempted murders and bombings over the past 20 years.

Currently, the endless political attacks against Planned Parenthood that continue to permeate our national political debate over abortion rights, are fueling a culture of hate that becomes fertile ground for inevitable clinic harassment and violence.  And the recent failure to defund Planned Parenthood at the federal level is now serving to further embolden anti-choice political zealots in state legislatures across the country.

The most frightening examples of this resultant extreme anti-abortion legislative agenda and political targeting of providers occurred in February when South Dakota proposed a law that would have permitted the murder of abortion doctors under a “justifiable homicide” defense; the same defense that Scott Roeder tried and failed to present to the court prior to his ultimate conviction.  Nebraska then followed suit a week later when South Dakota abandoned the alarming legislation.

The latest National Clinic Violence Survey conducted by the Feminist Majority Foundation found that while “…the percentage of clinics reporting FACE violations increased in 2010, the number of clinics reporting that investigations were opened into these FACE violations decreased dramatically.”  The 2010 survey also found “…the percentage of clinics experiencing severe violence has increased to 23.5% of all abortion providers participating in the survey in 2010, compared to 20% in 2008 and 18.5% in 2005.  Moreover, this marked the highest level of violence recorded since 1997 when 25.0% of all clinics experienced one or more incidents of severe violence.”

A 2009 Center for Reproductive Rights report titled, Defending Human Rights: Abortion Providers Facing Threats, Restrictions, and Harassment, details violence across the nation and the types of tactics used to intimidate, harass, and violently assault abortion providers and clinic workers.  The report outlined the increasing shortage of providers; the intimidation and harassment at clinics; and the urgent action needed to protect abortion providers and hold perpetrators accountable for violations of federal and state laws.  And the Guttmacher Institute reports that “…the number of abortion providers nationwide has declined by 25% since the 1990s.  Currently, more than a third of women of reproductive age live in counties without an abortion provider.”

Recently, I had the opportunity to delve more deeply into the alarming increases in clinic violence with nationally renowned expert and president of the National Abortion Federation Vicki Saporta.  I asked Ms. Saporta to evaluate the political climate fueling this surge in anti-abortion terrorism and the concomitant law enforcement response to that increased violence.

The Feminist Majority Foundation’s 2010 National Clinic Violence Survey, revealed that “[i]n 2010, for the first time since 1999, the percentage of clinics reporting potential FACE violations to federal law enforcement authorities increased…However, of the reported violations only 35.3% resulted in the opening of an investigation, a decrease from 56% in 2008.”

These survey results clearly demonstrate “…the need for increased federal, state and local prosecution of anti-abortion extremists to counter this trend toward higher levels and greater concentration of violence.  Effective law enforcement continues to be a critical factor for reducing violence against clinics.”  And notably, “[c]linics which rated their interaction with local law enforcement as ‘poor’ were twice as likely to experience high levels of violence in 2010 as those which rated their experience as ‘good’ or ‘excellent’.  However, although the number of FACE Act complaints filed by clinics is up, the number of FACE investigations decreased.”

National Abortion Federation (NAF) president Vicki Saporta and her staff track incidents of clinic violence and threats of violence throughout the country, working closely with the Task Force.  Ms. Saporta agrees with recent media analyses indicating that the Obama administration has indeed stepped up its FACE Act enforcement efforts.  To date, the Obama administration’s Justice Department has filed six FACE Act complaints versus just one complaint filed during George Bush’s entire eight year tenure in office.

More importantly, Ms. Saporta emphasized that the Obama administration has reinforced a fundamental vision, with local law enforcement in particular, that protecting clinics from violence must be devoid of political partisanship; that clinic violence is first and foremost a law enforcement imperative that must be treated as such by everyone within the law enforcement community.

Ms. Saporta explained that the Task Force works closely with local law enforcement to provide comprehensive protection, training, and coordinated law enforcement efforts throughout the country.  Enforcement efforts consist of local law enforcement training and coordination with federal law enforcement personnel and officials, including the FBI and when necessary the U.S. Marshals Service.

Ms. Saporta also believes that President Obama’s election created a feeling of great anxiety within the anti-abortion movement.  She said that political loses like this can cause those within the fringes of the anti-abortion movement to feel increasingly threatened and frustrated, which can lead to an increase in harassment and violence directed towards abortion providers.  And even though abortion politics was noticeably absent from the 2010 midterm election rhetoric, after the elections the onslaught of anti-choice state legislation has fueled an environment of hateful rhetoric.

Ms. Saporta stated that as more cases of clinic violence are reported, the Justice Department has become increasingly responsive.  She described NAF’s relationship with the Justice Department as being “excellent.”  In fact, NAF remains in regular communication with the Task Force.  The Task Force hosts law enforcement briefings around the country; works with local law enforcement so they understand their responsibilities for protecting clinics and providers; and clearly defines how laws need to be enforced.  The FBI was tasked with being more responsive after Dr. Tiller’s murder and the FBI specifically reached out to clinics around the country immediately after his murder.  The one thing Ms. Saporta would change however about the FACE Act would be to enhance criminal and financial penalties for offenders.

Ms. Saporta explained that the FACE Act complaint filed against Angel Dillard in Kansas clearly demonstrates the difference between free speech and threatening speech.  Moreover, Dillard’s counter-suit against the federal government, claiming a violation of her free speech rights, is a common tactic used within the anti-abortion movement.  These extremists often sue local law enforcement and municipalities as well.  Ms. Saporta said these counter-suits rarely work and she fully expects the case against Dillard to be successful.

Ms. Saporta noted that after the 1998 murder of Dr. Bernard Slepian in Buffalo, local law enforcement protocols in the Buffalo and Rochester area improved dramatically.  Dr. Slepian’s murder was a huge wake-up call for the Buffalo and Rochester law enforcement community.  And increasingly because of the newly reinvigorated Task Force, local law enforcement no longer looks the other way and ignores ongoing and systematic threats of violence.  Similarly, following the murder of Dr. Tiller, law enforcement response to incidences of violence and harassment outside of abortion facilities has improved.  Ms. Saporta and NAF expressed their gratitude for the Obama administration’s continued leadership and responsiveness towards clinic violence.

The pro-choice community must soldier on in Kansas and throughout the nation to continue to honor Dr. Tiller’s memory and courage; and to ensure that Dr. Tiller’s ultimate sacrifice for his patients will never be in vain.

The Obama administration has stated that under federal Medicaid law states cannot deny Medicaid beneficiaries care from any provider simply because that provider also provides abortion services.  So how will Indiana, or any other state, be forced to comply with federal Medicaid law?  For months now media reports on the PPIN defunding effort have stated repeatedly that if Indiana defunded PPIN they would risk losing $4 million in federal family planning funds.  But will the federal government actually take such “corrective action” and withhold that Medicaid funding?  The outcome of PPIN’s federal lawsuit and the potential action taken by the federal government in Indiana will set the stage for how the increasing number of states seeking to defund Planned Parenthood will persist in those efforts in the coming months.

On May 10^th Indiana Governor Mitch Daniels (R) signed a law defunding PPIN.  The legislation also enacted a 20 week abortion ban and “…mandates that doctors tell patients that abortion has been linked to infertility.”  The Indiana law violates federal Medicaid law because under Medicaid states cannot restrict a Medicaid beneficiary’s choice as to what provider they seek out for family planning services.

On May 4^th, in response to media inquiries regarding the fact that Governor Daniels was planning to sign this controversial law, a spokeswoman for the Centers for Medicare and Medicaid Services told the Los Angeles Times, “[i]f the state denies payment to these providers that would be illegal…There are some options available to us.  But I can’t say what action will be taken to bring the state into compliance.  All we can say now is we will review the matter once Indiana decides.”

Then on Sunday, May 22^nd, the New York Times reported that “[t]he Obama administration is raising serious objections to a new Indiana law that cuts off state and federal money for Planned Parenthood clinics providing health care to low-income women on Medicaid.”

There have been some questions raised by Governor Daniels’s administration as to whether Indiana was in fact violating federal Medicaid law; and whether Indiana could have certain federal Medicaid requirements waived to permit this defunding effort.  But the New York Times has confirmed that, “[t]he changes in Indiana are subject to federal review and approval, and administration officials have made it clear they will not approve the changes in the form adopted by the state.”

Since the law defunding PPIN has already gone into effect, the Obama administration “…may feel pressure to act sooner…” rather than later even though they technically have 90 days to act to bring the state of Indiana into compliance.  Also, with New Hampshire, North Carolina, Oklahoma, Texas, Wisconsin, Minnesota, and Utah considering similar legislative measures, and Kansas Governor Sam Brownback (R) expected to sign a law any day now that “…would redirect about $300,000 in federal family planning money from Planned Parenthood to state and local clinics,” the pressure to take action looms with each passing day.

Some of the political pressure on the Obama administration may have been alleviated by the fact that Governor Daniels announced this past Sunday that he will not be seeking the 2012 GOP presidential nomination.  Notably, Sunday was the first time that the Centers for Medicare and Medicaid Services provided any public comment on the Indiana law since the May 4^th statement provided to the Los Angeles Times.

The official statement from the Centers for Medicare and Medicaid Services and “cleared by the White House,” was reported by the New York Times, on Sunday, the very same day that Governor Daniels announced he would not be seeking the GOP presidential nomination.  The statement reads:

Federal law prohibits federal Medicaid dollars from being spent on abortion services.  Medicaid does not allow states to stop beneficiaries from getting care they need — like cancer screenings and preventive care — because their provider offers certain other services.  We are reviewing this particular situation and situations in other states.

Governor Daniels was still considering a presidential run up until this past Sunday.  Daniels “…had considered a bid for months and was pressured by many in the Republican establishment who longed for a conservative with a strong fiscal record to run.”  But with Daniels now out of the presidential race, the Obama administration may have felt more political leeway to not only reinforce their position that Indiana is violating federal Medicaid law but also provide some much needed public support for PPIN’s impending federal lawsuit, which will be decided by July 1^st.

The Centers for Medicare and Medicaid Services “…can take corrective action, including ‘the total or partial withholding’ of federal Medicaid money.  The mere threat of such a penalty is often enough to get states to comply.”  However, the inherent problem in taking such corrective action is that “…the penalty would, in many cases, hurt the very people whom Medicaid is intended to help.”

Bear in mind, Governor Daniels was fully aware that this law would violate federal Medicaid law when he signed it on May 10^th.  He was aware that he was risking the loss of $4 million in federal family planning funding.  In fact, Governor Daniels and the Indiana state legislature were informed last month by state Medicaid officials “…that ‘restricting freedom of choice with respect to providers of family planning services is prohibited’ by federal law.”  But Governor Daniels repeatedly declared that he was focused on only one thing, making sure that “…tax dollars would not subsidize providers of abortion,”  telling PPIN that all they needed to do to have their funding restored is simply stop providing abortions.

PPIN and the ACLU of Indiana will be in federal court in two weeks to challenge the law.  The lawsuit asserts that defunding PPIN constitutes a “…’a blatant violation of the freedom of choice provision’ of federal law.”  Last week, PPIN and the ACLU failed to convince the federal district court judge to enjoin the law temporarily while the lawsuit proceeds to trial, thereby allowing the law to go into effect immediately.  And even though the federal government has not joined the lawsuit, “…the administration’s statement sends a signal to the court…” and may engender some influence with the court for the fact that Indiana is indeed violating federal Medicaid law.

On Monday, PPIN President Betty Cockrum said she “…welcomed the federal review…[and]…that it might provide a second avenue of relief if a federal judge decides not to grant the organization’s request to block the law.”

But practically, what can the Obama administration do to bring Indiana into compliance with federal Medicaid law?  The state of Indiana risks losing $4 million in federal family planning dollars, but the real losers in this ongoing political demonization of abortion rights are the Medicaid patients that will be deprived of critical health care services.  PPIN said that last year they provided health care services “…to 85,000 patients, including 9,300 on Medicaid.  Most received contraceptives.”  PPIN “…also performed 5,580 abortions, 21,150 pregnancy tests, 26,500 Pap tests for cervical cancer and 33,000 tests for sexually transmitted diseases.”  Since the Indiana state legislature and Governor Daniels were fully aware of the fiscal consequences of enacting a law that violates federal Medicaid law, it seems unlikely that Daniels or any other anti-choice governor or state legislature contemplating defunding Planned Parenthood will be scared off by the threat of losing federal family planning dollars.  And it seems likely that if the Obama administration does cut off Indiana’s federal family planning dollars, Indiana will be ready to go without those Medicaid dollars and sacrifice the critical health care services for thousands of Indiana’s most vulnerable citizens.

Interestingly, the federal government appears ready to cut off Medicaid funds in Louisiana if a proposed bill that would violate the Hyde Amendment becomes law.  The legislation that was approved by a House committee this week would ban abortions within the first trimester directly contravening Roe v. Wade, and only provides an exception for life endangerment but not for rape or incest.  Additionally, the legislation “…would bar the Louisiana Medicaid program from covering any abortion, also with no exception for cases of rape or incest, a move that state health officials said could threaten about $5 billion in federal Medicaid financing.”  Stephen Russo, the executive counsel for the Louisiana state Department of Health and Hospitals, said that the Centers for Medicare and Medicaid Services contacted his office on Monday stating that, “…Louisiana cannot continue to receive federal funds for Medicaid if it violates the Hyde Amendment.”  Russo explained that the Centers for Medicare and Medicaid Services, “…was ready, willing and able to turn that spigot off and we would have to, I would imagine, put up a legal challenge and try to get a stay of order and somehow keep that spigot going…”

In fact, back in 1993 when Louisiana refused to comply with the expanded Hyde Amendment that included abortion coverage for rape and incest, the Centers for Medicare and Medicaid Services “…said that a state can’t participate in Medicaid if it doesn’t fund abortions outlined in the Hyde Amendment’s exceptions.  The federal courts – on both the district and appellate level – affirmed the federal government’s position.”  In 1995, the Fifth Circuit Court of Appeals in Hope Medical Group for Women v. Edwards affirmed a federal district court ruling that in order for Louisiana to participate in the federal Medicaid program, Louisiana had to comply with the expanded Hyde Amendment and provide Medicaid funding for abortions resulting from rape or incest.

By contrast, South Dakota “…pays for abortions only in cases of life endangerment,” in clear violation of federal Medicaid law.  And South Dakota has been permitted to violate federal Medicaid law, without sanction or any form of “corrective action” from the federal government, ever since the Clinton administration established in 1993 that under the Hyde Amendment Medicaid funds must cover abortions not only in cases of life endangerment but also in cases of rape and incest.

So what’s the alternative in Indiana and all of the other states that are planning to defund Planned Parenthood, in clear violation of federal Medicaid law?  Can the Obama administration actually stop the defunding of Planned Parenthood in any of these states without simultaneously punishing the most vulnerable Medicaid beneficiaries in this seemingly endless abortion war?  Or will the politically powerless constituents throughout Indiana and the rest of the country, once again end up as the predictable losers in this political fight?

Given that any fight over Planned Parenthood will inevitably become a political messaging war over abortion rights, the political reality that the District of Columbia’s most vulnerable women were forced to accept during the April budget showdown may sadly become a political reality for millions more women in the coming months.

In Kansas, former state Attorney General Phil Kline is currently accused of ethics violations stemming from his relentless harassment and investigations of Dr. George Tiller and his clinic in Wichita.  The ethics violation allegations include the mishandling of patient records detailing abortion services as well as using state workers to track the comings and goings of Dr. Tiller’s patients at local hotels in an attempt to uncover patient identities and match names to subpoenaed patient records.  During his February ethics hearing, Kline testified “…that he and his subordinates had the right to deceive other state agencies and didn’t have a duty to immediately correct flawed information provided to a trial judge as they started investigating abortion providers.”

Kline charged Dr. Tiller with misdemeanors accusing him of performing illegal abortions in December 2006.  When that case was dismissed, Kline’s successor filed additional charges in 2007.  Dr. Tiller was acquitted of all wrongdoing in late March 2009 and then murdered shortly thereafter on May 31, 2009.

Now Dr. LeRoy Carhart is being targeted in Iowa because he plans to open an abortion clinic that like Dr. Tiller would provide late term abortion services.

Two Iowa Senate Democrats broke ranks with their caucus and joined the Republicans to advance a 20 week abortion ban bill.  However this legislation goes further than a 20-week ban, pro-choice groups “…have said [that] while the legislation may aim to ban abortions after 20 weeks, a single line in the bill — ‘It is recognized that life begins at fertilization’ — would effectively ban all abortion in Iowa, and wage war on women’s reproductive rights.”  Moreover, the debate on the bill has failed to “…consider ‘different outcomes’ of pregnancy, including ‘miscarriage, fetal anomalies, delivery, still-birth, and abortion’.”

Recently, Iowa Democratic State Senator Joe Bolkcom told the Iowa Independent that he was working on drafts and amendments to address the constitutionality of the 20 week abortion ban legislation.  The constitutional issues deal with the fact that the bill “…stipulates life is recognized at fertilization, effectively banning all abortions in the state.”  Last week Bolkcom said, “…he will introduce a new abortion bill this week aimed at preventing a Nebraska doctor from opening a family planning clinic in western Iowa that would offer late-term abortion services.”  Bolkcom stated that he objected to the Republican proposed 20 week ban legislation because it provides “…no exception for life of the mother, rape, incest or fetus abnormalities that would prevent the baby from surviving after it’s born…What’s more, constitutional experts say the bill as drafted is blatantly unconstitutional.  There’s not much point in passing an unconstitutional bill that will only embroil Iowa in an expensive court battle.”

Last Wednesday, Bolkcom announced plans to impose new restrictions on any abortion clinic that provides late term abortions.  His proposed bill would subject such clinics to unspecified criteria to meet a “certificate of need” requirement.  Specifically, the bill provides:

…a certificate of need may only be granted if the facility will be located in close proximity to a hospital that provides the appropriate level of perinatal care for its patients; and directs the department of public health to adopt rules to determine the certificate of need application fee for such facilities.

Iowa Majority Leader Mike Gronstal (D) “…has been hemming and hawing on allowing a 20 week abortion ban onto the senate floor for debate and a vote.”  It has become increasingly clear that the real purpose of the anti-choice legislation is to ensure that Dr. LeRoy Carhart does not open up a clinic in Gronstal’s district while avoiding a possible court challenge to the 20 week abortion ban.  Gronstal stated, “[t]he legislation as drafted by the House I think significantly invites a very serious court challenge…So I think we’re trying to look at some ways to fix that up in such a way that we can guarantee a new, late-term abortion clinic doesn’t open in Council Bluffs.”

However, last week Senate Minority Leader Paul McKinley (R) “…lash[ed] out against a Senate Democrats plan to offer a new version of a controversial late-term abortion bill, saying the debate isn’t about a single abortion provider.”  McKinley, angry that a vote on the 20 week abortion ban bill is being pushed aside to go after Carhart, told the Iowa Independent:

…it is wrong for Senator Mike Gronstal to continue to obstruct a vote and stand in the way of meaningful Senate debate on this issue and Senate Republicans will continue to demand an up or down vote on a late-term abortion ban this session.  We are confident that if Senator Gronstal opts to listen to the citizens of his district and allows a vote on a late-term abortion ban, it will pass the Senate with strong bipartisan support.

But yesterday, amid much controversy on the Iowa Senate floor between Democrats and Republicans, the Iowa Senate did in fact pass the legislation targeting Dr. Carhart’s clinic.  The Iowa Independent reported that Senate Republicans angrily protested passage of the bill as a “sham” because it is unlikely to garner enough votes to pass in the Iowa House of Representatives.  Senator Mark Chelgren (R) said, “[t]he reality is…we’re going to have an abortion clinic here, because we failed to come together to get anything done again.”

The Feminist Daily Wire reported that on Monday:

…the Iowa Senate voted along party lines 26-23 to pass a bill that seeks to prohibit Dr. LeRoy Carhart from opening a clinic in Council Bluffs, Iowa.  The bill mandates that clinics offering abortion services after 20 weeks, which would include Dr. Carhart’s proposed clinic, be located near a hospital with an intensive care unit.  Since there is not a hospital in Council Bluffs that meets the standards specified in the bill, Dr. Carhart’s clinic would not be able to open there if the bill passes.  The bill will now go to the Iowa House of Representatives, where it likely will not pass.

When abortion providers become the targets of anti-abortion extremist violence they can at least seek out the protection of local law enforcement and federal protection under the Freedom of Access to Clinic Entrances (FACE) Act.  But what options do abortion providers have when they become the targets of anti-choice politicians that seek to punish them for providing abortion services?  In Kansas, the relentless attacks against Dr. Tiller, from then State Attorney General Phil Kline, created an atmosphere of hate and violence.

And now Dr. Carhart is becoming the new face of the “evil abortion provider” that anti-choice politicians can exploit for political expediency.  The Iowa Independent reported that “[m]ost abortion bills drafted and introduced this session were measures to stop Carhart from opening a surgical clinic…”

How far will Iowa’s anti-choice legislators take their campaign to stop Dr. Carhart from providing late term abortions?  And what possible violence may these attacks engender in the future for not only Dr. Carhart but other abortion providers as well?

Only hours after Governor Daniels signed the law, an ACLU attorney representing PPIN and the solicitor general from the State Attorney General’s office appeared in federal court.  Later on Wednesday, U.S. District Court Judge Tanya Walton Pratt “…denied Planned Parenthood of Indiana’s request for a temporary restraining order despite arguments that the law jeopardizes health care for thousands of women on Medicaid.”  The cuts to PPIN can now take effect immediately.  Judge Pratt explained “…the state has not had enough time to respond to Planned Parenthood’s complaint and that the group did not show it would suffer irreparable harm without a temporary restraining order.”  The Court has scheduled a hearing for June 6^th to rule on PPIN’s request for a permanent injunction “…and Pratt said she will rule on the matter before July 1, when new abortion restrictions included in the law are set to take effect.”

The joint PPIN and ACLU lawsuit contends that the new abortion restrictions “…forcing doctors to give information — information they claim is not factual or relevant to the patients and can be misleading…” violates the First Amendment.  USA Today reports that the lawsuit also alleges that because PPIN is being defunded immediately:

…the new law’s defunding provision… would void contracts and grants already in effect, violating the U.S. Constitution’s contract clause.  The suit also says that the law imposes an unconstitutional condition on Planned Parenthood by requiring it to choose between performing abortions and receiving non-abortion-related funding, and says that the measure runs afoul of federal Medicaid law.

PPIN president Becky Cockrum said, “[t]he ruling means that Hoosiers who rely on federal funding have lost access to their crucial and lifesaving preventive health care at Planned Parenthood of Indiana.”  Specifically, “…Wednesday’s ruling means that 9,300 Medicaid patients at Planned Parenthood’s 28 locations will lose services from their preferred provider, and her organization must decide soon, perhaps within days, whether it will continue to serve Medicaid patients…[and]… it will have to stop providing intervention services to partners of persons with sexually transmitted diseases in 22 counties.”  PPIN will lose approximately $2 million of the $3 million they receive each year from federal funding.

Moreover, “…about half of all births in Indiana are funded by Medicaid today and PPIN estimates this will ‘cost the state $68 million in Medicaid expenses for unintended pregnancies by reducing birth control access’.”

Of course, Governor Daniels has told PPIN repeatedly that all they need to do to restore their funding is to stop providing abortion services.  Anti-choice politicians have decided to hold the fundamental constitutional right to choose an abortion hostage while thousands of Indiana’s poorest women pay the ultimate price in this ongoing war on women.  Cockrum’s response to the ultimatum from Governor Daniels, and from every other anti-choice politician in Indiana, was very clear.  She said:

Abortion is a constitutionally protected option for a woman, and some 10,000 or 11,000 women in the state of Indiana avail themselves of that because they determine that’s the most right thing for them and for their families…It seems to me it makes sense for us to continue to offer those services.

Last week, in response to the pending enactment of the Indiana law and the fact that defunding Planned Parenthood violates federal Medicaid law, a spokeswoman for the Centers for Medicare and Medicaid Services told the Los Angeles Times:

If the state denies payment to these providers that would be illegal…There are some options available to us.  But I can’t say what action will be taken to bring the state into compliance.  All we can say now is we will review the matter once Indiana decides.

Indiana has now defunded Planned Parenthood and a federal judge has refused to issue a temporary injunction to stop Indiana from becoming the “…first state to cut off public funding to Planned Parenthood for general health services.”  So, theoretically Indiana should now be at risk of losing “…all of its $4 million in federal family planning money…” for violating federal Medicaid law.  And the fact that the federal judge refused to issue a temporary injunction does not bode well for the ultimate success of PPIN’s lawsuit.  If PPIN’s lawsuit fails to restore its funding other states seeking to defund Planned Parenthood will only be emboldened to charge forward.

This loss of federal family planning funding will not only create a health crisis for vulnerable women in Indiana but also create a fiscal disaster for the Indiana state budget.  More importantly, this fiscal disaster will have been brought on by an allegedly fiscally conservative Republican governor with sincere presidential aspirations.  Apparently, the need to assuage the fears of social conservatives that criticized him earlier this year “…for calling for a truce on social issues,” trumps any genuine need to protect the state’s budget.

But this question remains unanswered: What will happen to Indiana’s federal family planning budget?  Will the federal government act to protect the most vulnerable women in Indiana?  Will the federal government cut off Indiana’s federal family planning dollars?

New Hampshire, Kansas, North Carolina, Texas, and Minnesota are also threatening to follow in Indiana’s footsteps and defund Planned Parenthood.  Will the federal government protect the vulnerable women in those states, or will these states be permitted to violate federal Medicaid law with impunity?  To date, not a single spokesperson from the Centers for Medicare and Medicaid Services has answered this question because until this week it was still a hypothetical question.  Indiana’s governor and U.S. District Court Judge Tanya Walton Pratt have now turned that hypothetical question into a political and fiscal reality.

Last week Indiana’s GOP Governor Mitch Daniels announced that he would sign a bill to defund Planned Parenthood in Indiana; the singular reason being that Planned Parenthood provides abortions.  Politico reports:

The bill bars the state from entering into contracts with abortion providers, making an exception for hospitals and ambulatory centers.  Planned Parenthood of Indiana operates 28 clinics in Indiana, eight of which are Title X funded clinics.  The group received about $3 million in federal funding last year.

Governor Daniels provided a very clear solution for Planned Parenthood’s funding problem.  He stated, “[a]ny organization affected by this provision can resume receiving taxpayer dollars immediately by ceasing or separating its operations that perform abortions.”  In response, Cecile Richards, the president of Planned Parenthood Action Fund, said, “[c]learly, Governor Daniels would rather play politics with women’s health than show leadership and fiscal responsibility in rejecting a bill that will ultimately cost the state millions in federal funding.”

The very public battle Governor Daniels is waging against Planned Parenthood appears more politically motivated than most other anti-choice governors making similar choices because Daniels will soon announce whether he will be running for the GOP presidential nomination in 2012.  In fact, the New York Times recently explained:

The bill cutting off an expected $2 million in Medicaid financing to Planned Parenthood could have become law without the governor’s signature, and Mr. Daniels’s announcement was viewed by some as a sign that he may be leaning toward running and hoping to increase his appeal among social conservatives.  Some critics of the bill, who lobbied the governor to veto it, said they were surprised he had turned his attention to abortion when he had, of late, focused firmly on matters of the state’s finances and education, including vouchers for private or parochial school tuition.

The Indiana bill not only defunds Planned Parenthood but also enacts a 20 week abortion ban.  If enacted, Indiana would become the fifth state to use the disproved “fetal pain” theory to justify a clear violation of the mandate within Roe v. Wade, joining Nebraska, Kansas, Idaho, and Oklahoma.

It clearly has become irrelevant to anti-choice politicians that there is no federal funding of abortions and Planned Parenthood’s abortion services comprise only 3% of the overall services they provide to the millions of low-income and vulnerable women throughout the country.  Planned Parenthood clinics provide 1 million screenings for cervical cancer, 830,000 breast exams, and 4 million tests and treatments for sexually transmitted diseases nationally.  However, for anti-choice politicians the very fact that Planned Parenthood offers any abortion services should automatically disqualify them from federal funding.  Kansas Representative John Rubin (R) explained, “[i]f that money goes to Planned Parenthood to use for other purposes, that frees up Planned Parenthood to fund abortions, that’s the problem we have with it…”

Trying to reason with such specious arguments has become an exercise in futility for Planned Parenthood advocates across the country.

The hypocrisy of the anti-choice argument to defund Planned Parenthood in Indiana becomes even clearer when we consider that many of the clinics affected don’t even perform abortions.  In fact, Indiana’s Journal Gazette explains, “[i]n northeast Indiana, Planned Parenthood served more than 5,300 patients last year – and performed zero abortions…Planned Parenthood has clinics in Elkhart and Fort Wayne, both of which see patients from surrounding counties as well.  Neither provides abortion services.”

Anti-choice politicians unabashedly lie about Planned Parenthood services while simultaneously promoting Planned Parenthood as a federally funded abortion mill.  This demonization of Planned Parenthood not only represents an attack on access to critical health care and basic contraceptive services for millions of women, but this calculated demonization is clearly intended to further constrain abortion access across the country as well.

Fox News points out that the defining political difference between the Planned Parenthood battles in the statehouses from the House GOP leadership’s war on Planned Parenthood is:

…unlike Washington, where Democrats still control two thirds of government, Republicans are flexing their muscles in states where they made historic gains in legislatures and governors’ mansions in last fall’s midterm elections.  With their new power, Republicans have escalated their fight against abortion and its providers — particularly Planned Parenthood — alarming abortion-rights supporters.

The battleground parameters in Indiana will be defined by how far Planned Parenthood of Indiana can take their fight against Governor Daniels.  Theoretically, Governor Daniels is risking the loss of $4 million in federal Medicaid funds; a spokeswoman for the Centers for Medicare and Medicaid Services (CMS) said that states that try to restrict Medicaid beneficiaries freedom of choice for family planning services “risk losing federal support…States cannot restrict Medicaid beneficiaries freedom of choice of family planning services even if the state is running a managed care program.”

And despite being known as a fiscal conservative, Daniels still has not addressed this potential loss in federal funding.  Defunding Planned Parenthood in Indiana “…would leave 22,000 poor residents of Indiana, who use Planned Parenthood’s 28 health facilities in the state, with nowhere to go for a range of women’s services, from breast cancer screening to birth control.”

Planned Parenthood of Indiana President and CEO Betty Cockrum said that Daniels’ decision to sign the bill was “unconscionable and unspeakable,” adding “We will now suffer the consequences of lawmakers who have no regard for fact-based decision making and sound public health policy.”

Planned Parenthood of Indiana (PPIN) plans to challenge the law in court.  On Tuesday, I asked Betty Cockrum what PPIN will do if the law is enacted and whether they expect any support from the federal government in challenging the law.  Cockrum sent me the following statement in response:

Indiana will immediately file for injunctive relief once House Bill 1210 is signed into law by the Governor.  While it is likely that the executive branch at the Federal level is monitoring this activity here in Indiana, it may well be that they will wait until final action has actually occurred before they weigh in.  In the meantime, as I said, PPIN will be headed to court to delay and minimize the impact of the bill.  You may rest assured that PPIN and its partners across the state and nation are fully engaged in protecting our patients in every way and at every juncture.

And in an effort to forestall this kind of litigation from Planned Parenthood, this week Texas legislators “…inserted a poison bill into a women’s health program… a provision that would shut it down immediately if a group that provides abortions files and wins a lawsuit to participate in the program.”  Texas state Senator Bob Deuell (R) explained, “[t]he legislature has clearly tried to cut off funding for these entities, only to have it restored by lawsuit…We do not want this to happen again … if abortion providers are able to sue and win — they have to win the suit — the program will cease to operate.”

Planned Parenthood declared that the proposed Texas legislation would not deter a court challenge to the law.  The president and CEO of Planned Parenthood Gulf Coast declared:

[b]y banning Planned Parenthood from providing health care to more than 40,000 Texas women through the Medicaid Women’s Health Program, this Senate bill shreds the health care safety net that saves lives and dollars…Planned Parenthood is prepared to move forward with a lawsuit if that’s what it takes to continue to provide cervical cancer screenings and other health care to the women who depend on our health centers.

Beyond PPIN’s court challenge, the question remains will the federal government confront the discriminatory policy of singling out Planned Parenthood for Medicaid defunding?

The Huffington Post reported last week that while the Centers for Medicare and Medicaid Services “…confirmed… that states ‘cannot pick and choose who gets family planning funds’…[they]…would not comment on whether Indiana would face sanctions for violating this rule.”

Tellingly, the federal government’s failure to respond to South Dakota’s ongoing and unchallenged violation of federal Medicaid law may be instructive on this point.  According to the Guttmacher Institute, the Hyde Amendment, while only permitting the use of federal funds for abortion:

…in cases of life endangerment, rape or incest, has guided public funding for abortions under the joint federal-state Medicaid programs for low-income women.  At a minimum, states must cover those abortions that meet the federal exceptions.  Although most states meet the requirements, one state is in violation of federal Medicaid law, because it pays for abortions only in cases of life endangerment.

South Dakota has been permitted to violate federal Medicaid law, without sanction from the federal government, ever since the Clinton administration established in 1993 that under the Hyde Amendment Medicaid funds must cover abortions not only in cases of life endangerment but also in cases of rape and incest.

If Indiana defunds Planned Parenthood and a domino effect begins in many other states around the country, will the federal government challenge this clear violation of federal Medicaid law?

Another possible avenue for women’s rights groups to fight back against the onslaught of state Planned Parenthood defunding efforts would be to file a complaint with the Centers for Medicare and Medicaid Services.

In January, the National Women’s Law Center issued two reports revealing “…that certain religiously affiliated hospitals put women’s health and lives at risk by restricting doctors’ ability to provide the best medical care to pregnant women experiencing miscarriages and ectopic pregnancies.”  Consequently, the National Women’s Law Center filed a complaint with the U.S. Department of Health and Human Services urging them to remind all health care providers that they must abide by all Medicare Conditions of Participation (CoPs), and “…require hospitals to institute policies and procedures to protect patients’ legally enforceable rights; to investigate the failure of hospitals to provide standard of care and informed consent, and to take corrective action to prevent further violations.”

And in July 2010 the American Civil Liberties Union (ACLU) also filed a similar complaint with the Centers for Medicare and Medicaid Services (CMS) regarding the denial of health care at certain religiously affiliated hospitals.  The ACLU’s complaint to CMS delineated and addressed “…potential violations of the Emergency Medical Treatment and Active Labor Act (EMTALA)…and the Conditions of Participation of Medicare and Medicaid (COP)…by religious hospitals that refuse to provide emergency reproductive health care.”  The ACLU requested that CMS investigate the issue and “…clarify in the appropriate CMS program manual, and issue a transmittal, that denying emergency reproductive health care violates federal law.”

With the aggressive anti-choice agenda to defund Planned Parenthood across more and more states around the country, a concerted plan to attack this insidious effort to deprive vulnerable women of critical health care services is needed immediately.  The war against Planned Parenthood calls for an urgent all hands on deck strategy.

The fear that anti-choice politicians would create and be able to use “fetal rights” law, for example the push to recognize the theory of “fetal pain,” at earlier and earlier gestational stages can no longer be dismissed as paranoia.  There have been successful attempts in some states to create such laws, and there are increasing attempts to use feticide laws to criminalize everything from attempted suicides, suspected attempted suicides, or even “suspicious” miscarriages.”

The New York Times recently reported on an alleged epidemic of low-income pregnant women around the country that are abusing prescription drugs.  Lynn Paltrow, the founder of National Advocates for Pregnant Women, explains how the New York Times, relying solely on anecdotal evidence, “…suggest[s] that the greatest threat to children is their mothers…”  This false narrative adds to the notion that certain kinds of pregnant women, particularly low-income women, cannot be trusted.

Paltrow also discusses the real impact of the “Unborn Victims of Violence Act of 2004’’ or ‘‘Laci and Conner’s Law,’’ which was enacted after the tragic murder of Laci Peterson.  Laci Peterson was eight months pregnant at the time of her murder in 2002.  Paltrow explains:

[t]he Unborn Victims of Violence Act creates a federal law making it a crime to cause harm to a “child in utero,” recognizing everything from a zygote to a fetus as an independent “victim,” with legal rights distinct from the woman who has been attacked.  More than 30 states already have similar laws on the books.  In practice, these laws treat the pregnant woman as little more than collateral damage in an attack portrayed to the public as one directed against the fetus.  Moreover, pregnant women in states with such laws are more likely to be punished for behaviors and conditions that are not criminally sanctioned for other members of society.

In March 2004, in reaction to this legislation, Senator Dianne Feinstein (D-CA), stated, “[o]nce in a statute you create a fertilized egg as a human being with specific rights, the march to eliminate Roe v. Wade is on its way…”

So how do we fight this kind of legislation politically when anti-choice politicians exploit the victims of these horrific crimes as the weapon to further degrade abortion rights?

Goldberg concludes that “…as abortion rights weaken and fetuses are endowed with a separate legal identity, women are being put in jail.”  She goes on to detail a number of shocking recent cases that demonstrate how fetal rights laws are being used to arrest and incarcerate women across the country.

Meanwhile, in Louisiana a bill has been introduced that would use feticide laws to prosecute abortion providers and women who get abortions.  State GOP legislator Rep. John LaBruzzo introduced the bill but indicated that he did not intend for the law to be used against women that get abortions.  He has insisted that the bill will be amended, stating it was a “mis-draft” and he would remove the specific language that would permit the prosecution of women because such a provision “…would make it too difficult to pass, otherwise.”  But even a cursory review of the marked up bill clearly indicates that LaBruzzo had every intention to include women in the criminal penalty provision of the law right along with abortion providers and doctors.  LaBruzzo specifically altered the current feticide law to include women in the criminal penalty provision.  Mother Jones’s Kate Sheppard stated:

[i]t’s pretty hard to believe this language was changed accidentally.  I believe the real reason LaBruzzo now plans to remove it was not that it was a “mis-draft,” but simply that, as LaBruzzo told the local news, including such a provision “would make [the law] too difficult to pass.”  He acknowledges the fact that most people—no matter how anti-abortion they are—don’t actually think that a woman should be put in jail for up to 15 years, with hard labor, for obtaining an abortion.

Furthermore, since LaBruzzo is really looking to get to the Supreme Court, he believes that technological advances will sway the current Supreme Court to overturn Roe v. Wade.

Inextricably tied to this surge of fetal personhood rights is the increasing justification for unconstitutional abortion bans.  One proposed abortion ban in Minnesota, which is based on the disproved fetal pain theory, was recently challenged by the Minnesota medical community.

GOP lawmakers and the Minnesota Citizens Concerned for Life (MCCL) received some pushback in response to a proposed Minnesota ban on abortions after 20 weeks:

…in a March 30 letter to legislators, a team of experts in the field of gynecology and reproductive science evaluated the legislative findings promoted by MCCL and demonstrated that there is no medical or scientific consensus on fetal pain at any stage of development and that research continues to be contradictory…  ‘scientific evidence does not support the elimination of legal abortion at 20 weeks’ gestation based on concerns about the existence of fetal pain,’ the letter concluded.

The fetal pain theory has been proved false by medical experts in the U.S. and the U.K.

Despite this pushback, the fetal pain bill is moving forward in the Minnesota state senate, based solely on Republican support.  The Pain-Capable Unborn Child Protection Act bans abortion after 20 weeks and includes funding for prosecution of violations of the ban.

Unfortunately, Minnesota, and other states considering 20 week abortion bans, has been emboldened by the fact that the Nebraska 20 week abortion ban has gone unchallenged since its enactment in November 2010.

In addition to the fetal pain anti-abortion laws, so-called “fetal heartbeat” anti-abortion laws, such as the recently proposed law in Ohio, essentially amounts to a total ban on abortion. These laws represent a direct challenge to Roe v. Wade.  Likely presidential candidate and former Arkansas governor Mike Huckabee has endorsed the Ohio bill, which “…would give Ohio ‘the most restrictive abortion law in the nation’.”

Fetal rights are also being used as the pretext to criminalize the work of abortion providers and physicians in some states.  South Dakota, Nebraska, and Iowa all had bills introduced this year with a “…common purpose: To expand justifiable homicide statutes to cover killings committed in the defense of an unborn child.”  The coordinated efforts in these states were organized by Americans United for Life.  In Missouri and Oklahoma similar bills have been facilitated by Americans United for Life under the guise of protecting pregnant women from being attacked by abusive husbands and boyfriends – attacks resulting in the death of a fetus.

The Missouri bill “[s]pecifies that a pregnant woman may use deadly force if she reasonably believes that deadly force is necessary to protect her unborn child against death, serious physical injury, or any forcible felony.”

The Oklahoma bill, the Use of Force for the Protection of the Unborn Act:

…establishes justifications for a pregnant woman to use deadly force to protect her unborn child…Under the circumstances as she reasonably believes them to be, she would be justified in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child; and; she reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.

It is one thing when laws “specifically cover pregnant women” but when legislation is introduced that would allow third parties to protect a fetus, then one could envision a scenario where “…a pregnant woman could seek out an abortion and a boyfriend, husband—or, in some cases, just about anyone—could be justified in using deadly force to stop it.”

Law enforcement authorities are also speaking out against these laws and have become very concerned that these proposals can lead to increased violence against abortion providers.  The concern being that anti-abortion extremists could become vigilantes, viewing these laws as a “justifiable homicide” defense.  Omaha’s deputy chief of police conveyed his fears before the Nebraska legislature’s judiciary committee and said that Nebraska’s proposed law “…could be used to incite violence against abortion providers.”  Two separate laws were introduced in Nebraska this year that theoretically would have permitted third parties to intervene to defend the life of a fetus.

These laws represent another weapon that the anti-choice movement is using to slowly chip away at Roe v. Wade.  So the question remains, how do pro-choice groups tackle these issues without risking a full on reversal of Roe from the Supreme Court?  Unfortunately, there are no simple answers to this increasingly complicated question.  But continuing to stand by and watch Roe evaporate slowly and painfully is becoming an unacceptable reality for the women being subjected to these laws in so many states.  Furthermore, it is also an unconscionable option for women that are being jailed around the country as fetal rights supplant the basic rights and freedoms of pregnant women.

Does the reality of the current makeup of the Supreme Court mean that pro-choice groups must continue to play defense instead of offense?

Recently, the Guttmacher Institute reported:

Recent changes in the membership of the U.S. Supreme Court have led some state policymakers to consider the possibility that Roe v. Wade could be overturned and regulation of abortion returned to the states.  Some state legislatures are considering banning abortion under all or virtually all circumstances; these measures are widely viewed as an attempt to provoke a legal challenge to Roe, while other states are considering abortion bans that would go into effect in the event that Roe is overturned.

So, what can pro-choice advocacy organizations do to fight back?  How do we defend against the unconstitutional attacks and attempts to dismantle the very precepts of Roe v. Wade?

Bans on abortion after 20 weeks directly contravene Roe v. Wade.  Nevertheless, such bans are imminent in Alabama, Iowa, and Indiana.  And Oklahoma’s Governor Mary Fallin (R) just signed a 20 week ban into law this past Wednesday, joining Nebraska, Idaho, and Kansas.  The 20 week ban in Nebraska has gone unchallenged since November 2010.  Anti-abortion groups are systematically pushing these laws in states all around the country in the hope that pro-choice groups will react with legal challenges that will then end up in front of the conservative leaning Supreme Court.  These anti-abortion groups are “…lay[ing] the groundwork for the next challenge to Roe v. Wade – a battle they believe they can win.”

This concern about the makeup of the Supreme Court is a reasonable one considering the Court’s decision in Carhart v. Gonzalez (2007), upholding the Federal Abortion Ban.  The swing vote that remains a major concern is that of Justice Anthony Kennedy.  In Carhart, Justice Kennedy stated, “[s]tates … have an interest in forbidding medical procedures which, in the state’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”

Yet, not all reproductive rights advocates believe that Kennedy will be the deciding vote that overturns Roe v. Wade.  Instead, the concern is that the current Court will further burden access to abortion that may not overturn Roe directly but will do enough significant damage to abortion rights that millions of vulnerable women will bear the greatest burden; effectively dismantling abortion rights for these women.

Recent statements from representatives for the Center for Reproductive Rights and the National Women’s Law Center have indicated an unwillingness to challenge these onerous laws due, in part, to the fact that these laws only impact “…a small number of procedures that occur later in the pregnancy.”

Nancy Northrup, president of the Center for Reproductive Rights, recently explained, “[w]e’re focused on pursuing cases that ensure that women have access to all abortion services.  They’re trying to move the agenda to a small percentage of cases, but we’re not fighting on their turf.”

Still others think the Supreme Court “…has absolutely no desire to overturn Roe v. Wade.  In fact, despite all of the anti-choice laws being flung at it…  [some believe]… that these cases could likely reaffirm the ruling, not invalidate it.”

Lawyer Paul Benjamin, an anti-choice activist that has often provided anti-choice groups with legal assistance, recently commented on North Dakota’s proposed complete abortion ban.  Benjamin believes that North Dakota’s Defense of Human Life Act “…did not deserve the support of the pro-life community and was properly tabled.”  And contrary to what many have been warning about Justice Kennedy, Benjamin believes, “…there is no reason to believe that Justice Anthony Kennedy…would vote to uphold a ban on abortions before viability.”  His reasoning is based on the fact that in Carhart, Justice Kennedy, “…acknowledged that the federal Partial-Birth Abortion Ban Act would have been unconstitutional if it had prevented pregnant women from obtaining second-trimester abortions.”  Accordingly, Benjamin believes the anti-abortion movement should not be pushing “…to have Roe reaffirmed yet again…”  He concludes therefore that enacting laws that completely ban abortions, except in the cases to save the life of the mother, are in effect “…an exercise in futility.”

At the other end of the anti-abortion movement, activists are indeed pushing to enact laws that will directly conflict with Roe.  In Louisiana, Rep. John LaBruzzo (R) has introduced House Bill 587 which would establish a complete abortion ban “…designed to take on the 1973 U.S. Supreme Court ruling, Roe v. Wade that made abortion legal in the United States.”  “LaBruzzo said he filed the bill after being approached by a conservative religious group he did not name…[and]…that ‘all abortions at any and all stages of the unborn child’s development’ should be banned in the state.”

But even if the Supreme Court does not hear a challenge to one of these unconstitutional state laws, are women still being deprived of their constitutional rights under Roe by the very fact that these laws are permitted to stand unchallenged?  Isn’t there some obligation to protect women who are being denied their rights in so many states around the country?

For instance, do the women of South Dakota simply have to accept the fact that the 72 hour waiting period recently enacted deprives them of their constitutional rights?  The reality for many low-income women in South Dakota is that a 72 hour waiting period functionally extinguishes their right to reasonable abortion access.  So, how can these women be protected?

Slate’s Dahlia Lithwick recently reported that, “…Rev. Pat Mahoney, director of the Christian Defense Coalition, told CBN news: ‘[w]e don’t have to see Roe v. Wade overturned in the Supreme Court to end it…We want to.  But if we chip away and chip away, we’ll find out that Roe really has no impact.  And that’s what we are doing’.”

Lithwick went on to explain:

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints.  The new game lies in expressly violating Roe and Casey, at the state level, in the hopes of either forcing the issue at the Supreme Court or making abortion unobtainable as a matter of fact.  Either way, abortion opponents believe they will win—and here pro-abortion rights groups may actually agree.

Speaking with Rachel Maddow, NOW’s Terry O’Neill explained that “…the fear that Justice Samuel Alito would vote to overturn Roe is so deep that reproductive rights groups may be opting to leave the state bans in place.  And…wherever unconstitutional state abortion bans go unchallenged, they become law.”

When these laws continue to advance and impact women unchallenged, are the rights of these affected women in states like South Dakota, North Dakota, and Florida being ceded “…over a judicial hypothetical?”

Lithwick agrees with some other commentators that the Supreme Court is in reality uninterested in overturning Roe v. Wade, believing that the public “…backlash would be staggering.”

Lithwick concludes with the following observation:

The conservatives on the court are much happier with the status quo, allowing abortion as a matter of federal law while the states effectively outlaw it as a matter of fact.  If the states continue to hollow out Roe from the core, there will be no reason for the court to hear an abortion case ever again… and fear of Samuel Alito is preventing anyone from challenging the host of increasingly invasive, paternalistic, and degrading state abortion regulations, it’s not just abortion foes who are getting what they want.  The court is, too.  Abortion will have become all but impossible in America—for poor, minority, and rural women in particular—in direct contradiction to a Supreme Court decision, and the court itself will have done nothing to stand in the way.

Should advocates of reproductive justice continue to allow this gutting of Roe for so many millions of vulnerable women across the country, or should something be done about it?  Is it time to risk a legal challenge before the current Supreme Court?  How many more states will have to enact laws that deny these vulnerable women their fundamental constitutional rights before reproductive rights groups act to defend them?

Moreover, doesn’t the federal government also have an obligation to stand up for women who are being deprived of their fundamental constitutional rights in so many states around the country?  Shouldn’t the federal government stand up for the rule of law and defend Roe v. Wade as the law of the land?