National

The most important abortion case at the Supreme Court in a generation focuses on women, not fetuses

 

Paige Comstock Cunningham helped pioneer an approach to fighting abortion that emphasizes protecting women from harm. “You can’t just focus on the child and not on the mother and her needs,” she says. (Joshua Lott/For The Washington Post)

By Sandhya Somashekhar February 22

 

When the Supreme Court meets next week to hear its first abortion-related case in nearly a decade, the justices will consider the most significant challenge to an argument that has become central to the antiabortion cause: that abortion hurts not just a fetus but also its mother.

That idea wasn’t always at the heart of the movement, which for years spent more time highlighting what it considered the plight of the unborn child. But as the social and legal landscape has changed, the focus on women has taken center stage. And that shift has paid dividends, with state legislatures across the country enacting laws in the name of protecting women from allegedly unsafe conditions at abortion clinics.

At issue in the court case is part of a Texas law that imposes strict new requirements on clinic facilities and the doctors who work in them.

But regardless of how the court rules, antiabortion activists say the woman-centered emphasis isn’t going away.

“You can’t just focus on the child and not on the mother and her needs,” said Paige Comstock Cunningham, a lawyer and longtime antiabortion activist who is a professor at Trinity International University in Illinois. She is a former president of Americans United for Life, a Washington-based nonprofit that helped pioneer the woman-focused approach to antiabortion advocacy.

In this 2013 photo, an anti-abortion rights supporter holds a crucifix and prays while opponents and supporters of abortion rights gather in the Texas State Capitol as lawmakers debated abortion restrictions. The U.S. Supreme Court will soon weigh in on the legality of the law. (Tamir Kalifa/AP)

 

 

The group also helped promote an incremental strategy to opposing abortion, advocating a host of restrictions at the state level over wholesale targeting of the Roe v. Wade decision, which legalized abortion nationally in 1973. Today, versions of its model legislation on matters from parental notification to guidelines for medication-induced abortion have been adopted in many states, including Texas.

Abortion rights groups call these regulations disingenuous attempts to severely limit and ultimately end access to legal abortion, which these activists call one of the safest medical procedures available.
Cunningham had retired from the brutal abortion wars when, she said, in 1993 she was called by her Christian faith to return to the work. “I came with a fresh vision that, for 20 years, we had really focused on abortion from the perspective of the fetus,” she said. “The vision I laid out was a desire that we wake people up to the fact that abortion hurts women, too.”

Others were coming around to the idea as well. Frederica Mathewes-Green, former vice president of a group called Feminists for Life, said she had long doubted that the American public would be swayed only by arguments focused on the suffering of the fetus.
“It took a long time [for the movement] to realize nobody is listening when you say that,” she said. “It’s what they already know. What they want to know is, how is the woman going to get past that?”

The shift to a more incremental, woman-focused approach was strategic as much as anything, said Mary Ziegler, a law professor at Florida State University and the author of “After Roe: The Lost History of the Abortion Debate.”
 
In the late 1980s and early 1990s, abortion rights groups were gaining support with their message emphasizing a “woman’s right to choose.” Americans had become increasingly concerned with women’s equality. The 1992 decision in Planned Parenthood v. Casey — the last time the court considered an abortion case this consequential — allowed states to limit abortion but dashed hopes that Roe v. Wade would be overturned altogether.

From left, women's reproductive rights supporter Elisa Gonzalez speaks with Planned Parenthood volunteer Barbie Hurtado during a tour of the Whole Woman’s Health clinic in San Antonio, Texas earlier this month. As the U.S. Supreme Court prepares to consider the legality of strict Texas abortion restrictions, women’s healthcare providers in the state have launched a campaign to win support to keep their clinic’s open. (Darren Abate/Reuters)

 

Moreover, polling showed that, in the face of clinic bombings, attacks on clinic staffers and aggressive protests, the public was beginning to view the antiabortion movement as “hardhearted,” Ziegler said.

Antiabortion leaders started “recognizing this was a pretty serious public relations issue,” she said. Many were “women who actually believed pretty deeply that abortion hurt women, and the reason that wasn’t getting out was that women didn’t have as much of a voice in the pro-life movement.”

Not everyone in the movement favored the new focus, particularly those who saw the women as complicit in the killing of their unborn children, Cunningham said. “I had someone who called me and said: ‘Why are you doing this? I think every abortion should be fatal to the mother,’ ” she recalled. “I was horrified.”

Groups such as Americans United for Life went on to amplify arguments that abortion causes a litany of harms to women and claimed the existence of a disorder called post-abortion syndrome — a version of post-traumatic stress disorder. They also began highlighting dangers they said women faced as a result of unsafe conditions and a lack of regulations in abortion clinics.

Abortion rights groups counter that abortion is one of the safest medical procedures available, citing research showing that abortions in the first trimester, when the vast majority of abortions occur, have very little risk of major complications that might require hospitalization. 

Since a Republican sweep of legislatures and governor’s mansions in 2010, states have enacted nearly 300 abortion restrictions, according to the Guttmacher Institute, a reproductive rights think tank. Many of those laws are predicated on possible harms that may come to women from unsafe conditions at abortion clinics.
The restrictions range from multi-day waiting periods and state-approved counseling to mandatory ultrasounds and regulations governing the physical nature of abortion clinics.

Among the questions the Supreme Court will ponder in the Texas case, Whole Woman’s Health v. Hellerstedt, on March 2 is: When considering such laws, do courts have to look at the scientific evidence supporting them? A lower court concluded that they do not and that legislatures have broad leeway to make these decisions.

One of the Texas provisions at issue requires abortion clinics to meet the standards of ambulatory surgical centers. Typically, abortions early in pregnancy are performed in settings more closely resembling doctor’s offices.

Supporters of this rule say the invasive nature of surgical abortions suggests they must be done in hospital-like environments. Critics, however, with the backing of major medical groups such as the American Medical Association, argue that such requirements are unnecessary. They call this regulation a smokescreen to force clinics, particularly low-volume clinics in rural areas that can’t afford to comply, to shut down.

The other provision in question requires doctors to obtain admitting privileges at local hospitals, which would allow the doctors to treat patients there in case of emergency. Supporters call this another common-sense measure to protect women. But opponents note that hospitals will accept any patient in an emergency. Moreover, they say abortion providers often can’t get such privileges because they live too far away or because hospitals are unwilling to jump into the abortion debate, among other reasons.

Abortion rights activists say they have watched the evolution of the antiabortion strategy with deep skepticism.

“I think those who oppose abortion have been consistently opportunistic since the ’80s and will promote whatever argument gets them closer to overruling Roe and, as a practical matter, making abortion unavailable,” said Dawn Johnsen, a law professor at Indiana University and a former Clinton administration official who long worked in the abortion rights arena.

These activists call the idea that women need protection from their own decisions condescending and deeply offensive.

“Women see right through it,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, a chain of abortion clinics that is the plaintiff in the case before the Supreme Court.

She said 70 percent of the women who come to her clinics are mothers, meaning they are well aware of what it means to terminate a pregnancy. As they go through the hoops necessary to obtain an abortion in Texas — a state-approved counseling session, followed by a 24-hour waiting period and a mandatory ultrasound — they often become upset, she said.

“They get super-offended,” she said. “And it’s because they know women are completely capable to face the moral and ethical ramifications of what they’re doing. They don’t need coddling or protection.”

Even as this strategy is being litigated, abortion foes are pushing a new raft of state bills, many of which echo the days when the fetus was more often at the center of their arguments. These measures gained momentum last summer after an antiabortion activist mounted an undercover “sting” targeting Planned Parenthood, the large women’s health nonprofit and abortion provider, purporting to show that the organization illegally sells fetal tissue for a profit.
So far, state and federal investigations have turned up no evidence of wrongdoing on the part of Planned Parenthood, but a grand jury in Texas indicted the activists behind the project for falsifying government documents as part of their ruse.

Several states are considering bills to require “humane” disposal of fetal tissue, in some cases mandating that the material be buried or cremated.

Other states, citing concerns for the fetus, are considering bans on abortion after 20 weeks of pregnancy or earlier. Some states are cutting off funding to Planned Parenthood.

At least two states are considering bills that would bar women from obtaining abortions if the reason is a prenatal diagnosis of Down syndrome. If enacted, these bills would create a paradox — allowing abortion if no reason is given but barring the procedure if the reason is the fetal anomaly.

The return to these types of laws is by no means a radical departure for the antiabortion movement, said Ziegler, the Florida law professor.

“The movement’s ultimate focus has always been fetal rights,” she said. The anti-Planned Parenthood videos simply “reminded the movement of how much leverage they can get from fetal rights arguments.”

Cunningham and others acknowledge that, in their hearts, they believe in the full humanity of the fetus from the moment of conception and would like to see abortion ended in this country. But they object to the idea that the regulations are simply a means to that end.

“Why could we not care about how women are being hurt in abortion clinics and still be pro-life?” said Charmaine Yoest, current president of Americans United for Life. “It’s designed to shut our voices down.”

Sandhya Somashekhar is the social change reporter for the Washington Post.