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How Republicans Are Distorting the Gosnell Case to Push a Federal 20-Week Abortion Ban

12:56 pm in Uncategorized by RH Reality Check

Written by Tara Murtha for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See all our coverage of HR 1797 here.

Kermit Gosnell mugshot

Gosnell: not a valid excuse to ban abortion.

After apparently having exhausted the distortion and exploitation of the Kermit Gosnell case to push targeted regulation of abortion providers (TRAP) laws through state legislatures, anti-choice lawmakers are twisting the facts of the case yet again to suit a new purpose.

This time, they are disingenuously claiming that rolling back the number of weeks after which it is illegal to have an abortion will “prevent more Gosnells.” HR 1797, the bill that passed the U.S. House Tuesday, would ban abortion after 20 weeks post-fertilization, or 22 weeks’ gestation. (Under Roe v. Wade, abortion is legal, with restrictions, until viability, which is considered to be approximately 24 weeks into pregnancy.)

HR 1797

HR 1797 is titled the Pain-Capable Unborn Child Protection Act, even though scientific studies, and meta-analysis of said studies, have found no evidence of fetal pain until the third trimester. Rep. Trent Franks (R-AZ) proposed the legislation, despite the fact that a 20-week abortion ban passed in his state was recently ruled unconstitutional. Grounding the bill in faux science is no surprise, given Franks’ role in founding the Arizona Family Research Institute, a group linked to the notorious Focus on the Family, a devoutly anti-choice (and anti-LGBTQ rights) organization that promotes an anti-science fringe agenda such as teaching “Creationism” and abstinence-only education. As a young politician, Franks reportedly donned a tie tack in the shape of fetal feet.

As the bill was furiously debated in the House Tuesday, hardly a minute went by without a mention of Gosnell. Gosnell, of course, is the infamous Philadelphia doctor recently convicted of the first-degree murder of three babies, voluntary manslaughter of a Bhutanese immigrant named Karnamaya Mongar, and 21 counts of abortion past the legal gestational date (24 weeks in Pennsylvania), among other charges.

“The trial of Kermit Gosnell exposed late abortions for what they really are: relocated infanticide,” Franks in a statement about the bill.

His statement echoes anti-choice rhetoric surrounding the Gosnell case; if Gosnell’s victims had been in a womb, they say, his actions would have been legal—or, as Kirstin Powers put it, it’s “merely a matter of geography.”

But it’s not accurate.

Gosnell was convicted of involuntary manslaughter of Mongar and of first-degree murder of three babies, referred to as Babies A, C, and D in the grand jury report and throughout the trial. From the grand jury report, describing Baby A: “His 17-year old mother was almost 30 weeks pregnant.” Baby C, according to the grand jury report, was “at least 28 weeks of gestational age.” The grand jury did not know the exact gestational age of Baby D, though experts used a review of neonatology charts to conclude that the age was “consistent with viability.” In other words, each of these were third trimester pregnancies.

Gosnell’s “procedures” were illegal under current law. A 20-week post-fertilization ban would not make them any more illegal. If passed into law, HR 1797, or any other 20-week ban, would not prevent another Gosnell.

Meanwhile, abortions performed in weeks 20 through 24 are statistically rare. According to the Centers for Disease Control and Prevention’s latest abortion surveillance report, based on data from 2009, 91.7 percent of abortions were performed at or before 13 weeks gestation. Only 1.3 percent of abortions occurred at or after 21 weeks’ gestation.

“More Gosnells”?

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Texas Congressman: Masturbating Fetuses Prove Need for Abortion Ban

11:09 am in Uncategorized by RH Reality Check

Written by Adele Stan for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

As the House of Representatives gears up for Tuesday’s debate on HR 1797, a bill that would outlaw virtually all abortions 20 weeks post fertilization, Rep. Michael Burgess (R-TX) argued in favor of banning abortions even earlier in pregnancy because, he said, male fetuses that age were already, shall we say, spanking the monkey.

“Watch a sonogram of a 15-week baby, and they have movements that are purposeful,” said Burgess, a former OB/GYN. “They stroke their face. If they’re a male baby, they may have their hand between their legs. If they feel pleasure, why is it so hard to believe that they could feel pain?”

That observation led Burgess to say he had argued for the abortion ban to start at a much earlier stage of gestation, 15 or 16 weeks. (This is less than halfway through a pregnancy.) He appeared to liken Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, to the 1893 Plessy v. Ferguson decision that formally legalized racial segregation, and was not fully reversed until Congress passed the Civil Rights Act of 1964.

The rationale for the Republican bill, which advanced through the House Judiciary last week on a near-total party-line vote, is one scientifically disputed study, touted by Judiciary Committee Chairman Bob Goodlatte (R-VA) in his opening remarks at today’s Rules Committee hearing, that asserts fetuses can feel pain as early as 20 weeks after sperm meets egg.

“Well, I think all the members are cognizant of the fact that this is not a Congress that cares much about science,” said Rep. Louise Slaughter (D-NY), the Rules Committee’s ranking member, in her questioning of Goodlatte, who refuted that claim by saying that since 1973, the year when the Supreme Court legalized abortion, much more had been learned about fetal development.

Major medical bodies in the United States and the United Kingdom have refuted the claim of fetal pain before the third trimester.

The 20-week abortion ban, if passed into law, would set up a direct challenge to Roe v. Wade, which allows abortion up to the point of fetal viability outside the womb, and mandates exceptions for abortions in the case of pregnancies that threaten the life or health of the woman.

When first drafted, the 20-week ban was meant to apply only to the District of Columbia, over which Congress has a great deal of control. But with the arrest and murder conviction of Kermit Gosnell, who ran an illegal abortion clinic in Philadelphia, right-wing forces have sought to use justifiable public revulsion at Gosnell’s actions to further restrict women’s rights—and in contradiction to the common right-wing assertion of state sovereignty.

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Trent Franks, Abortion Bans, and the Fetal Pain Lie

7:53 am in Uncategorized by RH Reality Check

Written by Editor-in-Chief Jodi Jacobson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Trent Franks

Trent Franks & other men, gunning for abortion again.

Wednesday, an all-male panel of House Judiciary Committee members, led by Rep. Trent Franks (R-AZ), passed a 20-week abortion ban. The bill, HR 1797, passed out of the Judiciary Committee by a vote of 20 to 12. The vote count fell along party lines, with the exception of Congressman Pedro Pierluisi (D-PR), the only Democrat who voted in favor.

House Speaker John Boehner (R-OH) has promised a floor vote on the bill next week.

This is a dangerous piece of legislation. It is based on false and completely disproven assertions about “evidence” of fetal pain; it makes legislators, rather than doctors, the arbiters of gestational age; and it would result in the trial and imprisonment of medical professionals who provide safe abortion care. Yet in what can only be called an irresponsible quest for what they call “balance,” many media outlets are assisting in the perpetuation of lies about a critical aspect of reproductive health care in support of policies that will deeply harm women and criminalize providers.

As currently written, Franks’ bill would create an absolute ban on abortions in the United States after 20 weeks post-fertilization, for any reason, under any circumstance, except the imminent risk of death of the pregnant person, which as the cases of Beatriz and Savita Halappanavar have shown is not exactly reassuring. Contrary to misreporting by the Washington Post and the Associated Press, it is not a “reaction” to the trial of Kermit Gosnell, but simply the newest iteration of a bill Franks has been pushing for years — and he is using the Gosnell case as an excuse to expand the bill from a focus “only” on the District of Columbia to a nationwide ban.

It is no secret that the GOP is out to ban all abortions in the United States, no matter the costs to women’s lives and health, nor the costs to families and society writ large. When they are not acting to ban abortions outright, legislatures controlled by the GOP and Tea Party are passing unnecessary and costly regulations intended to close clinics run by legitimate providers of safe abortion care, and creating hoops through which patients must jump to get safe abortion care intended to raise the costs of early abortion and to humiliate and shame women, plain and simple.

The GOP and anti-choice movement’s claims about “caring for women” are belied by the fact that passage of a bill that would create blanket restrictions on safe abortion care, would remove health-care decisions from the hands of doctors and the women who are their patients — and would guarantee that criminal actors such as Kermit Gosnell get plenty of business.

The ostensible premise of HR 1797 — and others like it at the state level — is that a fetus at or past 20 weeks post-fertilization “feels pain.” This is an assertion that has been rejected by every relevant major medical body in the United States and abroad.

In the findings section of the bill, for example, the text asserts the following (condensed here):

After 20 weeks, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling…. In the unborn child, application of such painful stimuli is associated with significant increases in stress hormones known as the stress response…. Subjection to such painful stimuli is associated with long-term harmful neurodevelopmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral, and learning disabilities later in life.

It further states (emphasis added):

The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than 20 weeks after fertilization predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

The intention here is clearly to deceive.

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Abortion in Ireland: The Injustice and Day-to-Day Terror Faced by Countless Women

11:38 am in Uncategorized by RH Reality Check

Written by Sarah Fisher for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See all our coverage of the tragic case of Savita Halappanavar here.

Ireland's abortion policies cause widespread misery.

As an organisation that hears first-hand from the women who bear the burden of Ireland’s archaic abortion laws, the tragic death of Savita Halappanavar was shocking and sickening.

And yet not as surprising as you’d think.

Given that abortion laws in Ireland are among the strictest in the world, a tragedy of this kind wasn’t so much a matter of if, but when. The circumstances in which Savita died are truly abhorrent. Admitted to hospital experiencing a miscarriage at 17 weeks, despite being told that the fetus “wasn’t viable” she was made to suffer for days, left begging for an abortion that she was refused as long as there was a foetal heart beat.

Haunted by the harrowing details of Savita’s death we’re left to wonder how many more women in Ireland may have lost their lives as a result of being denied a life-saving abortion.

If Savita’s family hadn’t bravely made the decision to go public, would her senseless death have come to light? Have the lives of more women been sacrificed because a fetus was deemed more important? Even when it was known that the fetus would not survive? When, technically in Ireland an abortion is permitted if there is a “real and substantial risk to the life of the mother?” These are questions that we cannot ignore and questions that demand answers.

Savita’s death is the worst illustration of what happens when abortion is highly restricted, and the worst way for the ‘pro-life’ lobby to be proved wrong. How often do we hear that abortion is never necessary to save the life of a woman? A protester at a vigil for Savita hit the nail on the head with a placard stating ‘Pro-Life beliefs killed Savita Halappanavar — Ireland needs abortion rights.’  So did Kartha Pollit in her compelling reflection on the case When ‘Pro-Life’ kills.

But what has been absent from the mainstream media coverage of Savita’s death has been the mass, day-in day-out misery and discrimination experienced by women as a result of the near-total ban on abortion in Ireland.

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Savita Had a Heartbeat, Too

1:20 pm in Uncategorized by RH Reality Check

Written by Shivana Jorawar for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See all our coverage of the tragic case of Savita Halappanavar here.
For days now, I’ve been putting myself in Savita Halappanavar’s shoes.

I’m expecting. Seventeen weeks in, piercing pain sends me to the hospital. For three days, I’m miscarrying. There’s no hope for my child and my own health is fading. For three days, I’m in physical agony and doctors refuse my pleas to terminate the pregnancy to save my life. The child won’t survive, but there is a “heartbeat” and doctors fear terminating will violate my country’s laws. The unthinkable happens.

The tragedy that ended Savita’s life put a human face on the abortion issue. People are demonstrating in droves and even the Indian government is pressuring Ireland to change its laws. One demonstrator held a placard reading, “Savita had a heartbeat, too.”

For many of us, the disregard for women’s human rights in the name of religion just became personal. When I see Savita’s face, I can’t help thinking that she looks like me and, like me, was educated and could afford health care — but she still suffered this indefensible fate. Everyone knew the child could not survive, but that Savita could with proper care.

What does it say about a society when it leaves a woman to die in the name of “life?”

Where is the respect for women’s lives? This irony pervades the politics surrounding women’s health in my own country, the United States. Right-wing calls for abortion bans not only keep women from living full lives of our choosing, but often fail to include exceptions for our health or death. Most of those backing these so-called “pro-life” measures are also the ones blocking efforts to provide equal pay, health care, and safety net programs women and children rely on. It seems their concern for life ends when a baby is born.

And, if this can happen to someone like Savita, a doctor herself, what about more vulnerable women? As U.S. conservatives rush to eliminate the right to choose, it is poor women, disproportionately of color, who are seeing that right fade most quickly. It is these women who often cannot afford abortions, or do not have the time and know-how to see a provider during their first trimester. Twenty-week bans and funding cuts are not only sexist, but covertly racist and classist, too.

As I plan my own future and explore whether parenthood is right for me, I am thankful I live in a place where abortion is legal and safe, and that I can afford the right to choose. I am thankful that women have always been resilient in my country, and that we have a long history of fighting for and winning reproductive rights.

With strength and courage, women in the United States have come a long way. But our journey is not complete. Too many women are still left out and too many lawmakers threaten to send us back to a time when Savita’s story could happen here. That’s why I work to not only preserve the rights I have, but to expand them for all women — because we all have a heartbeat, too.

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Women’s Lives Matter: It’s Time to Hold Governments Accountable for Safe Abortion Care

12:49 pm in Uncategorized by RH Reality Check

Written by Patty Skuster for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.
See all our coverage of the tragic case of Savita Halappanavar here.

The news of Savita Halappanavar’s tragic death after being denied an abortion has been heard around the world by now. Protesters have gathered in her honor, vigils will continue to be held and, perhaps, the end of her life will be a wake-up call. Women’s lives matter and laws should protect them — not cost them their lives.

In Ireland, abortion is against the law in most cases. But Savita should have received a legal abortion; under the constitution abortion is allowed when a woman’s life is in imminent danger. And Savita’s husband reports that doctors told them an abortion wasn’t an option, despite her repeated requests and severely declining health, because Ireland “is a Catholic country.” What that meant for Savita was that the health-care providers at Galway University Hospital made decisions based on their values (as dictated by the Catholic Church) and disregarded the value of her life.

The lack of implementation of the abortion law in Ireland is very similar to so many countries where Ipas works. In most countries, abortion is permitted for one or more reasons. Human rights authorities — including at the United Nations and ICPD–agree that governments must take steps to make legal abortion available. In fact, in 2010, the European Court on Human Rights ruled that Ireland must implement its abortion law. But when governments don’t fulfill their obligations to protect women’s reproductive rights, women can’t access safe abortion services and die as a result. Just like Savita.

We have to hold governments accountable. Laws must be clear on abortion and guidance and training need to follow. And make no mistake, these laws and policies must include regulation of providers’ refusal of service — to ensure that a woman can receive an abortion from a willing colleague through referrals or some other mechanism. And never should a woman’s life hang in the balance because of someone else’s moral objection to abortion.

Savita isn’t alone. There are so many women whose deaths are never reported or don’t have access to hospitals and die because they can’t get safe abortion care. Why? Because the laws are not implemented, people are unwilling or untrained to provide service, and abortion stigma permeates legal systems, health systems, communities and even families. For years, Ireland has failed to enact mechanisms for legal abortion because of political and social sensitivities. Without clarity about what’s permitted and what isn’t under the law, doctors and other health-care workers tend, as they did in Savita’s case, tragically, to play it really safe — for them, that is, not for the women who are affected.

At Ipas we have worked throughout the world to help governments clarify and implement abortion laws. We partner with health-care providers, civil society organizations, and health ministries to pass guidelines that enable access to legal abortion. We support the training of health-care providers and partner with community organizations and the legal sector to promote an understanding of local abortion laws.

Let’s not forget; a woman is dead after doctors refused to terminate an already unviable — yet wanted — pregnancy for a woman in incredible pain. Her husband is left to question the decisions made by these doctors — and to grapple with her death, which could likely have been prevented.

Photo by infomatique under Creative Commons license.

Silence and Denial Don’t Work: Ireland, Malta, the European Union and the Lessons of Savita’s Death

1:49 pm in Uncategorized by RH Reality Check

Written by Johanna Westeson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See all our coverage of the tragic case of Savita Halappanavar here.

Much has been said about the tragic death of Savita Halappanavar in Galway, Ireland last month. Even before seeing the outcome of the official investigation we can conclude that her death was the result of a combination of factors: inhumane laws, lack of guidelines on how to apply the laws that do exist, fear of prosecution on behalf of doctors, medical incompetence, influences of the most conservative wing of the Catholic Church over hospitals, and — as pointed out recently by Jodi Jacobson — a general climate of misogyny, poisoning both the medical establishment and society at large.

Twenty years ago, the Irish Supreme Court established that abortion is legal when a pregnant woman’s life is in danger. More specifically, it ruled that termination of pregnancy is lawful “if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by a termination of the pregnancy.” Please note how restrictive these words are: “real and substantial risk” and “life, as distinct from the health.” With due respect for a court that took a courageous step forward in a country where the issue of abortion is and was taboo under any circumstance, it is remarkable how the ruling goes out of its way to make this exception to the abortion ban as narrow as possible. Anyhow, these are the parameters. It is the law of the land.

But nobody knows how this rule should be understood because there is no further guidance. No written law, no guidelines, no official interpretation. So doctors in Ireland, whether pro- or anti-choice, whether in Catholic hospitals or elsewhere, must navigate around this. It may be that in Savita Halappanavar’s case, the situation was crystal clear: her life was in danger, the situation was acute, an abortion would probably have saved her, and doctors refused her care because they favored the life of her unviable fetus over hers. It is even likely that this was the case. But in most situations, threats to the life and health of the pregnant woman cannot be so clearly distinguished. Usually, a threat to life is preceded by a threat to health. So is a doctor to wait until a critical health situation turns into a life-threatening situation? It appears that way. How does this correspond with medical ethics? It doesn’t. I do not envy ob/gyns in Ireland. I cannot imagine the agony that they, or many of them, must experience when a woman shows up with pregnancy-related complications. This is not to take away any of the responsibility from those doctors or the hospital that treated, or mistreated, Savita Halappanavar. It is only to shed light on the context in which they are operating.

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The Death of Savita Halappanavar: A Tragedy Leading to Long Overdue Change?

10:23 am in Uncategorized by RH Reality Check

About Ten Thousand People Attended A Rally In Dublin In Memory Of Savita Halappanavar

About Ten Thousand People Attended A Rally In Dublin In Memory Of Savita Halappanavar

Written by Carole Joffe for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The tragic and unnecessary death of Savita Halappanavar — a 31-year old Indian woman who was denied a life-saving abortion in an Irish hospital — has sparked reactions across the globe. Thousands have marched in Dublin. Demonstrations have taken place in India and elsewhere. An international day of protest is called for November 21. Tense meetings between Indian and Irish government officials are taking place. The overriding question now is: what will be the legacy of this horrible event, beyond the unspeakable grief of Savita’s loved ones? After the demonstrations have stopped, will Irish hospitals — where abortion remains illegal but is permissible in life-threatening conditions — proceed differently in the future? Will the country finally move toward legalizing abortion?

This heartbreaking incident has led me to contemplate the long history of abortion struggles around the globe and under what circumstances, change takes place. It is not an exaggeration to say that throughout history millions of women have died and even more have been injured because of the lack of safe abortion. But only some of these tragedies capture the public’s attention and become catalysts for change.  And sometimes public attitudes are affected even when a woman’s death is not involved.

Consider the history of abortion in the United States. Two events that occurred in the 1960s were instrumental in moving much of the country toward an endorsement of legal abortion. The first, in 1962, involved Sherri Chessen Finkbine, a Phoenix woman pregnant with her fifth child, who learned that the Thalidomide pills she had been using as a sleep aid were strongly associated with severe birth defects. Her doctor was able to arrange a “therapeutic” (i.e. approved) abortion for her at a local hospital, but Finkbine, in an act of decency that would prove costly, went public with her story as she hoped to warn other women who were in her situation. Her interview with a journalist created a media sensation, and nervous hospital authorities cancelled her abortion. Ultimately Finkbine, unable to find an abortion anywhere in the United States, obtained one in Sweden, where she delivered a fetus with missing limbs. Doctors told her the fetus would have had no chance of survival. Finkbine’s story spread beyond Phoenix to become a national story, including a cover on Life magazine. This incident, particularly the unprecedented visibility of abortion on the cover of the leading news magazine of the 1960s, “had a galvanizing effect on public opinion,” in the words of the journalist Linda Greenhouse, a longtime observer of the trajectory of abortion rights in the United States.
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Death in Ireland is a Wake Up Call to Fight Bans on Later Abortions Here at Home

1:07 pm in Uncategorized by RH Reality Check

Written by Susan Yanow for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Recent press about the death of Savita Halappanavar, admitted to a hospital in Ireland with medical complications in a 17-week pregnancy, is a grim reminder about the impact of abortion restrictions on women’s lives.

In Ireland, abortion is legal only to save a woman’s life. In the last two years in the United States, nine states have passed laws banning abortion after 20 weeks (in Arizona abortion is banned after 18 weeks) except to save a woman’s life. But as the death of Ms. Halappanavar so poignantly illustrates, “risk to a woman’s life” in emergency situations is extremely difficult to assess.

Savita Halappanavar was 31 years old, and had a wanted pregnancy. She began suffering severe back pain, was admitted to the hospital and was told that she was miscarrying. As the pain increased and her health worsened, she and her husband requested that the pregnancy be terminated. Because the fetus still had a heartbeat, however, she was denied her right to a safe abortion. After three days in the hospital, Savita Halappanayar died. The doctors attending her did not determine that her life was sufficiently at risk to warrant performing an abortion.

Could this happen in the United States? In short, it certainly could. Let’s remember the 1988 case of Michelle Lee, a resident of Louisiana who had a serious heart condition and was waiting for a heart transplant. She became pregnant, and because of her medical condition could not be seen at an outpatient abortion clinic. She was sent to the only hospital in Louisiana with appropriate services, Louisiana State University. However, as reported at the time:

A committee of five LSU doctors concluded that Lee’s chance of dying was not greater than 50 percent. And under Louisiana law, a public hospital could not perform an abortion on Lee unless her life were endangered. They decided her case didn’t meet the test.*

What must the chance of dying be for a woman to “qualify” for a life-saving abortion? In Louisiana, a 50 percent chance of death was not enough. Who knows how the doctors in Ireland assessed the risk to Savita Halappanavar?

In the states that have passed limits on when an abortion can be performed, lawmakers are expecting physicians to juxtapose their assessment of medical risk to a given woman with the legal risk of prosecution if, after the fact, there are “second guesses” about whether the woman was at sufficient risk to trigger the legal exception the abortion ban.  This untenable intrusion of law makers into medicine puts physicians into an impossible situation. 

We have a sobering lesson to learn from Ireland – when doctor’s medical judgement is compromised by restrictive abortion laws, it is women’s health and women’s lives that suffer.

*Activists mobilized and raised $8,000 to help Michelle Lee get a life-saving abortion in Texas. Today, Texas is one of several states considering a ban on abortions after 20 weeks in the next legislative session.

Photo by ge’shmally under Creative Commons license.

The So-Called Personhood and Fetal Pain Bans, and the Race to the Supreme Court Steps

12:18 pm in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Chief Justice Roberts

Chief Justice Roberts

In their bid to undo Roe v. Wade, anti-choice activists are in a race to see which of their abortion-restrictions can find its way to the Roberts Court first.  So far two distinct avenues to get Supreme Court review have emerged, the push to recognize fertilized eggs as persons under the law, and and 20-week “fetal pain” bans. And while “personhood” initiatives are designed by their nature to challenge Roe directly, it is the fetal pain bans that are most likely to undo the decision altogether.

To understand why personhood won’t likely doom Roe but fetal pain bans will we have to look at not just the language of these two abortion restrictions, but the legal strategy afoot in their passage. Take the most recent legal battle over fertilized eggs-as-people in Oklahoma.

Last spring Personhood Oklahoma circulated a proposed ballot initiative that would have amended the state constitution to define a person as “any human being from the beginning of biological development” which as the state attorney general explained, meant fertilization. The matter was immediately challenged by the ACLU and Center for Reproductive Rights. The state Supreme Court, in a unanimous opinion, declared the initiative “void on its face” because it directly contradicted precedent from Roe, through Planned Parenthood v. Casey and beyond and was therefore, in the court’s words, “constitutionally repugnant.”

Now, while the Oklahoma personhood initiative obviously conflicts with federal law recognizing a woman’s fundamental right to privacy (which includes a right to chose abortion), neither the ballot initiative process nor the ruling from the Oklahoma Supreme Court that blocked it addressed any issues of federal law. This point was made by Ryan Kiesel of the ACLU of Oklahoma in an interview with RH Reality Check:

“This case never presented any federal issues for the U.S. Supreme Court to consider,” Kiesel said. “For the Supreme Court to have intervened it would have to hold that the Oklahoma Supreme Court’s interpretation of Roe and Casey was so flawed that they could jump in.”

Kiesel explained. “States have reserved to them right to afford their state citizens the opportunity to hold a referendum or initiative on their own, and the federal courts have said that states have lots of leeway in running that process. For example, states can limit the ballot or initiative process to measures related only to revenue and taxation. In Oklahoma we have a restriction on the initiative process that prevents it from being used as a weapon to create a test case. Which is exactly what was being done here.”

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