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Thursday, December 8, 2016

by Nina Martin, ProPublica.

To say abortion opponents are feeling fired up in 2015 would be a massive understatement.

In their first week back at work, congressional Republicans introduced a sweeping prohibition on abortions after 20 weeks of pregnancy (H.R. 36, the Pain-Capable Unborn Child Protection Act), as well as bills that would ban sex-selective abortions, target funding for groups like Planned Parenthood, require abortion providers to have hospital admitting privileges, and let doctors and nurses opt out of providing abortion care, even in emergencies.

In the states, where the 2014 elections gave Republicans control of two-thirds of state legislative chambers, incoming lawmakers also have supersized their abortion agendas.

But abortion is just one issue on the minds of activists focused on reproductive rights. There’s also birth control, conscience clauses and personhood. Here are seven key trends and themes to watch for this year.

1. A New Wave of Abortion Restrictions

Despite the GOP-controlled Congress, a Democrat in the White House means that many of the most significant battles over abortion will continue to take place in statehouses and courtrooms, not on Capitol Hill.

Expect to see a torrent of 20-week bans like the one Congress has proposed (13 states already have similar laws on the books). These bills are being advanced by groups like the Susan B. Anthony List; a report by the group’s research arm, the Charlotte Lozier Institute, recently noted that in most countries where abortion is legal, the procedure is limited to early pregnancy. “The U.S. is in very rare and unsavory company in allowing abortion [after 20 weeks],” Lozier’s president, Chuck Donovan, said in an interview, pointing to China and North Korea as two other outliers. Even if President Obama ends up vetoing some version of the 20-week ban, Donovan said, “It could actually heighten awareness of the issue.”

In a few states, lawmakers are expected to dust off retro theories (a Missouri bill, for example, would require women to get permission from the fetus’ father to have an abortion, an idea ruled unconstitutional in 1992). An Indiana bill that would make it illegal for doctors to perform an abortion based on a fetal abnormality such as Down syndrome echoes abortion foes’ efforts in Ohio, North Dakota and elsewhere to position themselves as protectors of the disabled.

Other bills will be aimed at tightening abortion restrictions already in place — lengthening waiting periods to 72 hours, for example, and making it harder for teens to use judicial bypass procedures to obtain an abortion without their parents’ permission. (A new Alabama law gives the fetus in such cases its own attorney.) “It’s possibly an easier lift to amend an existing law,” said Elizabeth Nash, a senior policy associate at the Guttmacher Institute. “It’s smart.”

Also on the horizon: a likely clampdown on medical abortions (those induced by drugs). Meanwhile, all sides will be watching to see how the 5th Circuit Court of Appeals, and eventually the U.S. Supreme Court, deals with Texas restrictions known as TRAP, or Targeted Regulation of Abortion Providers, laws — rules that purportedly make clinics, and abortion, safer but could shutter most of the clinics in that state. A key question: how many clinics have to shut down before the TRAP laws create an “undue burden” on women’s right to abortion, effectively rendering Roe v. Wade moot?

2. The Rise of Religious Exemptions

This trend has its roots in two recent Supreme Court decisions: last June’s Hobby Lobby ruling and the 2013 Windsor case upholding gay marriage.

At the center of Hobby Lobby was the federal Religious Freedom Restoration Act of 1993, which says that the government can only “substantially burden” the exercise of religion if it has a “compelling state interest.” The Supreme Court’s precedent-shattering interpretation — that RFRA applied to closely held companies like the retailer Hobby Lobby, whose owners objected to the Affordable Care Act’s contraception mandate on religious grounds — was “a minefield,” Justice Ruth Bader Ginsburg warned.

And sure enough, the past six months have brought an explosion in religious-exemption challenges involving everyone and everything from a Missouri lawmaker who didn’t want his teenage daughters to have access to birth control to Native Americans battling federal rules that make it illegal to possess the feathers of certain types of endangered eagles without a permit. (The feathers are used in religious ceremonies.)

Some state lawmakers, meanwhile, have taken inspiration from the Hobby Lobby decision to fight back against the stunning gains of the marriage equality movement since Windsor. They have introduced a deluge of RFRA-type bills that would allow business owners, local government officials, and health care professionals to refuse to provide services to gay people — rent a banquet hall, issue a marriage license, perform in vitro fertilization — that violate their religious beliefs. Same-sex marriage may be the immediate target, but state RFRAs would likely have a much broader impact, said Katherine Franke, co-director of the Center for Gender and Sexuality Law at Columbia, granting “a kind of blanket indemnity from compliance with all sorts of otherwise applicable laws.” That could erode not just reproductive and gender rights but eventually, Franke said, protections against race discrimination as well. Catholic hospitals — engaged in high-profile battles with the ACLU in Michigan and elsewhere over limits on reproductive care — would also benefit.

3. Conscience Clauses for Non-Religious Groups

Back in Washington, anti-abortion groups have been working to extend religious-type “conscience” exemptions to non-religious organizations — starting with themselves.

Last summer, March for Life — the organization behind the demonstrations in front of the Supreme Court every January 22 on the anniversary of Roe v. Wade — filed a lawsuit demanding an exemption from the ACA’s contraception mandate, arguing that it “fundamentally violates” the group’s core principles.

“Because they aren’t a religious organization, they can’t claim an exemption under RFRA,” said Casey Mattox, senior counsel at Alliance Defending Freedom, the conservative legal powerhouse that brought the suit. The same is true for many other anti-abortion organizations. “We think we have a conscience claim beyond religious belief,” the Lozier Institute’s Donovan said. Their argument: Denying abortion opponents the same exemption given to religious groups violates their constitutional right to equal protection.

4. Battles Over Contraception

One of the most striking aspects of the March for Life suit is its assertion that birth control — the hormonal kind, as well as intrauterine devices — are “abortifacients” (meaning they cause abortions). Indeed, the Lozier Institute published a paper last year arguing that emergency contraception is essentially no different from abortion because it purportedly prevents implantation of a fertilized egg. (Women’s groups and their allies say the scientific evidence proves otherwise.)

The arguments are part of a larger strategy that reproductive rights advocates say has been gaining strength in recent years, with a major boost from Hobby Lobby. “Birth control is very much in the [anti-abortion] movement’s cross-hairs,” Guttmacher policy researcher Joerg Dreweke wrote in a recent analysis, “and antiabortion advocates are working to stigmatize contraception by blurring the lines between contraception and abortion.”

The U.S. Catholic bishops, meanwhile, also are also likely to zero in on birth control and sterilizations as they begin the process of revising their rules governing Catholic health care.

5. A Revamped Personhood Playbook

Last November was supposed to be a turning point for the personhood movement, which argues that establishing the legal rights of “pre-born humans” is the key to overturning Roe. And the 2014 election was a turning point — but not in the way supporters had hoped. A “human life amendment” to North Dakota’s constitution that had been expected to win overwhelming approval ended up being trounced at the polls; ditto for a ballot measure in Colorado. The election results triggered what Gualberto Garcia Jones, national policy director for the National Personhood Alliance, called “an existential crisis” for the movement. In a tough-talking post-election analysis on LifeSite News, he warned, “[A] lot has to change.”

One sign of change is the emergence of NPA itself. Instead of the statewide ballot measures favored by Personhood USA, the heretofore leader of the movement, NPA will promote what Garcia Jones called “asymmetrical tactics … engaging the enemy in municipalities and counties that we know we control.” Daniel Becker, NPA’s Georgia-based president, said he’s looking for “opportunities to personalize the child in the womb” via fetal rights legislation on everything from inheritance to adoption. He also favors statutes like those in Alabama and Tennessee that target drug use during pregnancy.

A key goal, Becker said, is “to create tension in the law” that would require courts — and eventually the U.S. Supreme Court — to act. Part of that strategy, he added, is to identify potentially sympathetic judges like the ones on the Alabama Supreme Court (see ProPublica’s story about one of those justices here).

As the personhood movement regroups, expect reproductive rights organizations to start talking more about personhood, too — the personhood of the mother-to-be.

“When you look at [these laws] collectively, you cannot miss the fact that people with a capacity for pregnancy have a second-class status in this country,” said Lynn Paltrow, executive director of National Advocates for Pregnant Women, which fights measures like the ones Becker supports “They haven’t achieved full personhood. That is what the battle really is.”

6. A Broader Agenda for Reproductive Rights Activists

For years, protecting Roe v. Wade has been the almost singular focus of reproductive rights advocates. But more recently, many have become convinced that narrow focus could spell doom. The ideological divide over “choice” vs. “life” “doesn’t fit the reality of many families,” said Denicia Cadena of the New Mexico group Young Women United. In many parts of the country, even among those who favor abortion rights, abortion is a topic that “stops conversations,” said Monica Simpson, executive director of SisterSong, which focuses on the South. “It shuts people down.”

The soul-searching — some of it painfully public — has led to a shift that will become more evident in 2015.

Advocates in a number of states are focusing on proactive bills that aim to improve the lives of women and children by raising the minimum wage, requiring paid sick leave, strengthening protections against pregnancy discrimination, and pressing for education and criminal justice reforms. More groups are talking about the intersection between LGBT and reproductive issues, often in the context of transgender health. There is, said Simpson, less talk about “choice” and more about “justice.”

Meanwhile, groups such as the recently formed CoreAlign are working with allies in conservative areas to develop a 30-year strategic plan that might reframe reproductive rights issues and transform public opinion. One part of the plan: Training a new generation of leaders — many from communities of color — who can see it through. Andrea Miller, president of the National Institute for Reproductive Health, a think tank that supports state activists, pointed out that anti-abortion groups did much the same thing, with considerable success. “They started local. They made a coordinated effort to work their ways into the legislative and political process, and eventually they created a tipping point,” Miller said.

Which is not to say that reproductive rights groups are abandoning their core issue. Last year saw the introduction of more new state laws protecting abortion than at any time since 1990.

7. The California Exception

For reproductive rights advocates, California has been one of the few bright spots in recent years. In 2013, for example, the state passed a law that allowed trained non-doctors to perform first-trimester abortions — the largest expansion of abortion access in the U.S. in a decade. Researchers affiliated with the University of California-San Francisco are expected to publish more studies on abortion safety — as well as the real-world consequences of preventing women who want abortions from having them. This research has been influential well beyond the state’s borders.

Which is one reason anti-abortion groups are paying such close attention to the next big California case on the horizon: A determination by insurance regulators last year that every health plan in the state must cover all maternity-related services, including abortion — even plans offered by Catholic schools and hospitals. Americans Defending Freedom has filed a complaint with the U.S. Department of Health and Human Services, and religious and anti-abortion groups are girding for an epic battle.

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