Advocates for reproductive health and rights are bracing for a big fight as soon as Donald Trump takes office.
Trump has promised to appoint “pro-life” justices to the Supreme Court who could overturn Roe v. Wade. His administration will be full of people like Tom Price — who would lead the nation’s health department while opposing basic health coverage for women under the Affordable Care Act — and Vice President-elect Mike Pence, who was once the Congress member responsible for launching the GOP’s war on Planned Parenthood in the first place.
Whatever 2017 has in store for reproductive rights, it will be eventful. But as big a challenge as the Trump administration poses to pro-choice advocates, the fight won’t be as one-sided as you might think.
Congress could really, actually defund Planned Parenthood this time. Will it?
Speaker of the House Paul Ryan said Thursday morning that before this year is out, Republicans in Congress will, in fact, seek to defund Planned Parenthood at the same time that they repeal the Affordable Care Act — using a budget reconciliation process that Democrats will be powerless to stop unless at least a few Republicans join them.
The move wouldn’t kill off Planned Parenthood, but it would mean cutting off basic health care options for hundreds of thousands of women. Planned Parenthood’s $500 million in federal funding doesn’t come in a lump sum, and it doesn’t cover abortion; it’s paid out through Medicaid reimbursements and family planning grants, which cover services like birth control or cervical cancer screening. That means the mostly low-income women who rely on those programs would suffer the harshest consequences of defunding.
It’s hardly a secret that the GOP has been trying for years to defund Planned Parenthood and repeal the ACA. It’s also hard to say whether they can muster the unified political will to go through with it: Planned Parenthood is actually quite popular, whereas taking health insurance away from 20 million Americans probably won’t be.
The exact details of both the “defunding” bill and the ACA “repeal” aren’t clear yet. If Republicans keep both promises, though, it will be a double-whammy for women’s health: gutting the nation’s family planning safety net, plus denying women the ACA’s comprehensive, no-cost coverage for preventive health care.
Congress might also pass a national abortion ban that challenges Roe v. Wade
With Republican House and Senate majorities, and a president who seems more than willing to go along with their socially conservative agenda, it wouldn’t be at all surprising to see the reappearance of national proposals to ban abortion before a fetus is viable outside the womb — which would directly violate the Supreme Court’s 1973 decision in Roe v. Wade, and could trigger a high-stakes court challenge to that decision.
Two such laws were introduced in Congress last year, and may appear again this year. One would ban the safest, most common method of second-trimester abortion; another would ban almost all abortion after 20 weeks of pregnancy.
The GOP’s high-profile attempt to pass the 20-week ban last year fell apart when Republicans disagreed on how to handle rape exceptions. The bill also stood no chance of being signed by President Barack Obama or overcoming a Democratic filibuster in the Senate.
The Democratic filibuster could definitely still block bills like these in 2017 and beyond — assuming Republicans don’t change the rules, that is. But there’s also no telling which bills might get attached to must-pass legislation, or get forced through in other ways.
One big caveat, though: Even if one of these bills passed, it’s still unlikely that the Court would uphold the law — much less use it as a tool to overturn Roe v. Wade. After all, the Court still has a five-justice majority that just voted to strengthen abortion rights in 2016. And the power of precedent is strong enough that even Chief Justice John Roberts might be reluctant to overturn a decision as well-established as Roe.
Still, that calculus could change dramatically if Trump gets the chance to appoint two or three new justices instead of one.
The pro-choice movement is going on offense, and it could score some big wins even in the Trump era
The stakes for abortion rights in America are already high. State restrictions have been slowly eroding the landscape of abortion access for decades — but a flood of new restrictions since 2010 (when Republicans swept state legislatures in the midterm elections) has made abortion access, in some states, not much better than in the days before Roe v Wade.
In the courts, though, reproductive rights advocates are already using this summer’s big pro-choice Supreme Court victory to fight some of those new (and even old) laws. In states like Wisconsin, Mississippi, Louisiana, Alabama, Indiana, and Florida, the new Supreme Court case has helped block laws that would have forced clinics to close, or would have put other unconstitutional “undue burdens” on women seeking an abortion. There will be more of these kinds of legal fights, and possibly a lot more pro-choice wins, to come in 2017.
Also in 2017, many states are likely to continue a growing trend of passing bills to expand reproductive rights, rather than restrict them. The Center for Reproductive Rights tracked nearly 300 bills in 2016 that would expand or improve access to reproductive health care services.
Bills that make it easier for women to get birth control are a major trend right now; nearly every state considered, and eight states passed, some kind of pro-contraception bill. These include allowing pharmacists to dispense birth control without a prescription (which is already the law in California and Oregon, and passed this year in red-state Tennessee); allowing women to pick up a 6- or 12-month supply of birth control in one pharmacy visit (passed in Maryland, Vermont, Hawaii, and Illinois), to codifying and expanding ACA-style contraceptive benefits at the state level (Maryland banned co-pays for contraception and sterilization). These kinds of laws could be especially important if Republicans get rid of Obamacare’s coverage for women’s health.
The intense attacks on reproductive rights in recent years have sprung advocates out of a decades-long defensive crouch. Now they are proactively fighting for abortion to be treated as a routine medical practice and a basic human right for women, not some shameful secret.
Planned Parenthood is launching a huge campaign to fight back against the defunding threats against it in Congress. Most Americans favor Planned Parenthood — and astonishingly, almost half of Trump supporters oppose defunding it. It’s conceivable that enough public pressure could have a real impact.
Meanwhile, a national campaign is pushing harder than ever to restore federal funding for abortion by repealing the Hyde amendment. The Hyde amendment, activists say, discriminates against low-income women and women of color in particular and makes it harder for them to afford an abortion.
Repealing Hyde would have been an achievable goal under Hillary Clinton — but that doesn’t mean activists are letting up the pressure under Trump. Far from it: The All Above All campaign to repeal the Hyde amendment just announced a six-figure ad buy in Washington, DC, urging lawmakers to “be bold” by ending the 40-year ban and saying that women won’t be “punished” — a reference to Trump’s infamous line about what might happen to women if Roe v. Wade were overturned.
Meanwhile, states will keep passing more anti-abortion laws
States have passed 338 abortion restrictions in just the past six years, according to the Guttmacher Institute, a research organization for reproductive rights. That’s 30 percent of the 1,142 laws that states have passed to limit abortion since Roe v. Wade was decided in 1973.
In 2016 alone, 18 states enacted 50 new abortion restrictions. It’s a steady trend that certainly won’t vanish overnight.
And if Congress can’t or won’t defund Planned Parenthood, a bunch of states will try to do it themselves. At least 24 have already tried in one way or another, and many have succeeded. But some of those efforts, like in Florida this year, have been blocked because they’re illegal; kicking Planned Parenthood out of Medicaid, for instance, violates patients’ right under federal law to receive family planning services from the health care provider of their choice.
Some states have already passed so many anti-abortion laws, they need to think of new ones. But they will.
The Guttmacher Institute identifies 10 major types of abortion restrictions that states most often pass:
- Medically inaccurate or misleading pre-abortion “counseling”
- Medically unnecessary waiting periods that sometimes require two trips to the clinic
- Medically unnecessary ultrasounds before an abortion
- Banning state Medicaid funds from covering abortion except in cases of life (but not health) endangerment, rape, or incest
- Restricting abortion coverage in private health plans
- Imposing medically inappropriate restrictions on medication abortion
- Unnecessary regulations on abortion facilities that are difficult to comply with
- Imposing an unconstitutional ban on abortion before viability (like a 20-week ban) or limits on abortion after viability
- Preemptively banning abortion just in case Roe v. Wade is overturned
Guttmacher considers states that have passed four of these 10 laws “hostile” to reproductive rights, and “very hostile” if they’ve passed six or more. And in just the past decade, as the above graphic shows, the number of “hostile” or “very hostile” states has skyrocketed.
If a state is already “very hostile” to reproductive rights, though, chances are that its lawmakers have already passed most of the restrictions they want. So the breakneck pace of lawmaking should slow down eventually.
Then again, sometimes it may not. Pro-life activists and lobbyists are constantly dreaming up new laws to limit abortion. And pro-life state legislators are usually game to try to pass them.
The anti-abortion movement is changing tactics. Some of the results have been bizarre. 2017 could get even weirder.
Elizabeth Nash, state issues manager at the Guttmacher Institute, said she noticed “a big shift in rhetoric” in the pro-life movement in 2016. Instead of justifying abortion restrictions because they allegedly improve “women’s health and safety,” she said, activists have started using “more inflammatory language or graphic imagery” as their main argument against abortion rights.
In part, this trend was inspired by the propaganda videos that spun Planned Parenthood’s fetal tissue donation program into an illegal, for-profit conspiracy to “sell baby parts.” Not a single state, federal, or media investigation could substantiate the videos’ claims — but they still had a huge influence on policy in 2016, and probably will in 2017 too.
Eight states banned fetal tissue donation or research in 2016. Indiana, Texas, and Louisiana tried (but ultimately failed in court) to require all fetal tissue to be cremated or buried — which was both an indirect way of banning fetal tissue donation, and a visceral appeal to treat fetuses just like born-alive infants. (Ohio Attorney General Mike DeWine tried to promote a similar law using false, inflammatory claims that Planned Parenthood improperly threw “steam-cooked” aborted fetuses into landfills.)
Gross-out posters and protest tactics aren’t new. But gross-out policy seems to be getting more common. Instead of quietly regulating abortion out of existence using obscure “admitting privileges” or “ambulatory surgical center” laws, anti-abortion activists are shifting back to visceral, often misleading rhetoric that both humanizes the fetus and demonizes abortion.
In 2016 Indiana and Louisiana tried, and failed in court, to ban abortions that supposedly “discriminated” against a fetus based on race, sex, or genetic anomalies. Ohio joined 15 other states to ban abortion after 20 weeks, based on a very medically dubious theory of “fetal pain.” Four states banned the dilation and evacuation (D&E) procedure — the safest and most common method for performing a second-trimester abortion — and colorfully rebranded it as a “dismemberment abortion.”
The D&E ban, which was blocked in Alabama and Louisiana but still stands in Mississippi and West Virginia, is basically an indirect ban on second-trimester abortion (after 14 weeks). It forces doctors to choose between not performing the procedure at all, losing their medical license for performing it correctly, or putting their patients at risk by using a legal, but less safe or reliable, method. Utah passed a similar indirect ban on abortions after 20 weeks, by passing a “fetal anesthesia” law that was pure medical gibberish.
Many of these laws are an obvious violation of Roe v. Wade because they ban or severely restrict abortion before a fetus is viable. But some of them are also just bizarre. Fetus funerals? Fantasy medical procedures? Suggesting that black women who get an abortion are actually engaging in racial discrimination?
In some ways, though, it’s a strategic shift that makes sense. As long as Roe v. Wade stands, you can’t legally block a woman from getting an abortion before her fetus is viable. You can regulate abortion to a certain extent — but as the Supreme Court affirmed this summer by striking down two major Texas laws, you can’t pass bogus “regulations” that just close a bunch of clinics without improving health or safety.
So if what you really want is to outlaw abortion, pretty much all that’s left after that decision is finding a different way to move the legal goalposts back. Find reasons that the rights of the fetus might trump the rights of the woman before it can survive outside her body — by, say, convincing courts to replace the standard of “fetal viability” (which happens around 24 to 26 weeks of pregnancy, give or take, but has to be determined by a doctor) with “fetal pain” (a theory that defies credibility by claiming fetuses can feel pain at precisely 20 weeks of pregnancy).
The pro-life movement has been painted into a tricky legal corner, and its new fetus-focused strategy faces very long constitutional odds. Even though some new laws won’t be challenged or struck down, they still won’t do nearly as much to limit abortion access as the old “women’s health and safety” laws did.
Then again, passing the weird new laws also means investing in a long shot that just might pay off someday, and even reverse Roe v. Wade.