Arkansas Legislature Introduces Texas-Style Abortion Ban

Originally published in Rewire News on December 8, 2021.
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As Arkansas launched a special legislative session Tuesday nominally dedicated to passing income tax cuts, a leading anti-choice Republican in the state senate introduced a copycat version of Texas SB 8, legislation that effectively bans abortions after six weeks and allows any citizen to sue those who help a pregnant person get the procedure.

Reproductive rights advocates have been bracing for this moment for several months, ever since Republican Sen. Jason Rapert, who has sponsored some of the most aggressive bills to restrict abortion access over the last few years, came out in September to praise SB 8.

“What Texas has done is absolutely awesome,” he proclaimed when it first went into effect. The U.S. Supreme Court heard arguments against SB 8 on November 1.

ROE HAS COLLAPSED AND TEXAS IS IN CHAOS.

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Earlier this year, Rapert pushed through an abortion ban that only permitted abortions to save the life of the pregnant person, but did not provide any exceptions for those impregnated by rape or incest. A federal judge in July preliminarily blocked the law, but it was just one of 20 abortion restrictions Arkansas passed this year alone.

In early October, Rapert, who did not return requests for comment for this story, announced that he would be filing a version of Texas SB 8 as soon as Arkansas’ special session launches, which at the time lawmakers thought would be on October 25.

“I am filing the Arkansas Heartbeat Protection Act with a civil cause of action—just like Texas,” he tweeted then. “I invite [Republican Gov. Asa Hutchinson] to put the bill on the call and legislators to co-sponsor.”

According to the state’s legislative rules, since Hutchinson did not include abortion on his “call,” Rapert had to rally two-thirds of his colleagues in order to have his bill considered in the special session. Rapert expressed confidence earlier in the fall that he could reach that support threshold. He also insisted that he must continue to be “creative” in his legislative pushes against abortion access, given that other bills he’s authored have been struck down in court. 

SB 13 was filed Tuesday afternoon with Rep. Mary Bentley as the bill’s other primary sponsor; 28 other Republicans co-sponsored it, clearing the two-thirds threshold.

Hutchinson had declined to say what he would do if the legislature passes copycat SB 8 legislation, but he said he thinks lawmakers should wait to see the decisions the Supreme Court hands down on SB 8 and Dobbs v. Jackson Women’s Health Organization, Mississippi’s 15-week abortion ban that the Court heard a week ago. Rapert has said he’s frustrated with Hutchinson’s stance.

Holly Dickson, the executive director of the ACLU of Arkansas, said trying to bring up a sensitive bill like this outside of the state’s regular legislative session is “unorthodox.” The ACLU has been monitoring the possibility of a Texas copycat law ever since Rapert issued his first threat.

“We’ll oppose any effort to do that and have been advising legislators against this blatantly unconstitutional move,” Dickson said.

Public opinion is somewhat mixed on the idea. In late September, a survey from Talk Business & Politics and Hendrix College, which polled 916 likely Arkansas voters on their opinions of Texas SB 8, found about 46.5 percent of voters would support a similar bill in Arkansas, and about 49.5 percent would oppose it. Only 4 percent of respondents said they didn’t have an opinion at the time. The pollsters found opposition was particularly strong among those under 30 years old, and among people of color.

In early November, the 23rd annual Arkansas Poll was released, which conducted 800 telephone interviews with randomly selected adults across the state, and found 41 percent of all very likely voters support laws that would make it harder to get an abortion. More than a quarter of very likely voters think abortion should be illegal under all circumstances, the highest percentage ever found in this poll, according to Charisse Dean of the Little Rock-based Family Council, a conservative research and advocacy group

Last month the national anti-abortion organization, Americans United for Life, ranked Arkansas as “the most pro-life state” in the country for the second year in a row. Arkansas already requires individuals seeking abortion to undergo a mandatory 72-hour waiting period, as well as to get two in-person visits at an abortion facility. Telemedicine for abortion is banned in Arkansas, and patients can access abortion only up to 20 weeks postfertilization, or 22 weeks’ gestation.

In mid-October, Planned Parenthood Great Plains Votes announced it would be launching an “aggressive statewide campaign” in Arkansas to defeat the proposed Texas copycat abortion ban. Among other things the organization said it had hired additional organizing and communications staff dedicated to the effort, would be hosting in-person and virtual events across the state to educate voters, and would be contacting over 20,000 state residents to discuss the implications.

“We’ve also really been targeting the legislature to help them understand the human impact,” said Emily Wales, the interim president and CEO of Planned Parenthood Great Plains.

Following the passage of SB 8 in Texas, visits by abortion-seekers into Arkansas jumped significantly. In September, Texas patients comprised 19 percent of Little Rock Family Planning Services’ caseload, after being less than 2 percent in August.

Many people are also traveling from Texas to Oklahoma for abortion care, though Oklahoma has passed its own wave of new abortion restrictions. In September, Planned Parenthood filed a lawsuit to block five of these new restrictions, which were set to take effect in November. The litigation has been successful; all five of the Oklahoma laws have been temporarily blocked so far.

More public-facing organizing against a Texas copycat law, Wales said, was delayed in Arkansas because the special session was pushed back from October. Advocates had said in mid-November that they expect in-person events against a copycat ban to pick up if and when Rapert’s bill is formally introduced.

“We will have in-person rallies outside the capitol,” Wales said. “If Texas has taught us anything it’s that you have to be really visible about what the outcomes are. We’re seeing patients in Texas who are shocked that their legislature passed [SB 8] and they weren’t paying attention before.”

In late September, a Republican state representative in Florida introduced the first copycat Texas bill, which almost identically mirrors SB 8. But reproductive rights advocates in Florida say they are less concerned that the bill will become law anytime soon, given the repeated failure of Florida lawmakers to pass a six-week abortion ban.

Karen Musick, the co-founder and vice president of the Arkansas Abortion Support Network, an all-volunteer nonprofit that helps Arkansans access abortion care, said they’ve definitely seen an uptick in donations since Texas SB 8 was passed but that their attention has largely been focused on organizing volunteers.

“People have really come out of the woodwork and said, ‘My home is available if someone needs a place to stay, if someone needs help getting to another place I will take them,’” Musick said. “We’re collecting all these people who have benefited from abortion care in the past and want to do as much as they can now to ensure the next generation has access too.”

Musick said that while there’s less they can do to stop the current legislature from passing new restrictions, they can at least focus on organizing people.

“Our job is to forge as many contacts as we can,” Musick said. “We need to build a base of transportation volunteers, escort volunteers, money and counseling volunteers.”

In The Fight for Reproductive Rights, Don’t Forget the Medicaid Gap

Originally published in The Intercept on October 1, 2021.
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IN ONE OF the grimmest periods ever for reproductive rights, advocates are scrambling to react to a spate of new restrictions on abortion. The Biden Justice Department filed a lawsuit against Texas in the wake of S.B. 8, the state’s new law that invites private citizens to enforce abortion bans through civil litigation. House Democrats passed the Women’s Health Protection Act, a bill that would protect abortion providers and remove barriers for patients. And some advocates see hope in medication abortion, a combination of two drugs — mifepristone and misoprostol — which people can take to safely end pregnancies.

But many states still restrict where providers can mail drugs, and most groups still only service states with relatively friendly abortion laws. Last week, a Republican state representative in Florida introduced a bill that mirrors S.B. 8, and lawmakers in other GOP-controlled states have signaled interest in following suit. The U.S. Supreme Court has refused thus far to block Texas’s notorious statute, and the Women’s Health Protection Act stands little chance of passage in the Senate.

As long as the Senate filibuster remains in place, and the U.S. Supreme Court maintains its anti-abortion majority, advocates in the South say there’s little that Washington can really do to aid their plight. There is one crucial method, though, which often falls off the radar: Medicaid expansion.

“What people have forgotten is [in] this entire swath of the southeast, from Texas and Georgia and Florida, we never got Medicaid expansion, so there’s a lot of people, especially people capable of becoming pregnant, unable to access any sort of insurance,” said Robin Marty, a journalist, activist, and head of operations for West Alabama Women’s Center, an independent abortion clinic in Tuscaloosa. “We need national organizations to remember that we’re still five steps behind. While they’re trying to get new medication abortion programs standing, we’d like to even use the [Affordable Care Act] birth control mandate.”

As Congress considers proposals to include in the upcoming reconciliation bill — a $3.5 trillion social spending package that Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va., are threatening to derail — Democrats are weighing at least two measures that would expand Medicaid access in the 12 states that have refused. One pathway, led by Democratic Sens. Raphael Warnock and Jon Ossoff of Georgia and Tammy Baldwin of Wisconsin, would create a program that’s like Medicaid but administered by the federal government rather than by individual states. Their proposal would require the Centers for Medicare and Medicaid Services to offer coverage to those eligible in the 12 holdout states. Texas Democratic Rep. Lloyd Doggett also has a bill that would allow cities and counties to expand Medicaid in states that have refused. And some powerful lawmakers, including House Majority Whip Jim Clyburn, D-S.C., have cited Medicaid expansion as a top priority for inclusion.

Sen. Jon Ossoff, D-Ga., speaks on Medicaid expansion and the reconciliation package during a press conference with fellow lawmakers at the Capitol in Washington, D.C., on Sept. 23, 2021.

The cost for expansion so far is estimated at potentially $250 to $300 billion, but the price could shrink if legislators put an expiration date on their plans. Clyburn suggested last week that he would back a few years of Medicaid expansion, which he said could be harder to strip away once it’s in place.

Lawmakers are under pressure to reduce the cost of the reconciliation package — despite the fact that the $3.5 trillion price tag would be spread over 10 years and partially covered by raising taxes on the wealthy — and several health care priorities are competing for space. These include expanding Medicare, bolstering Obamacare subsidies, and ensuring access to in-home care for the elderly. A Washington Post report on Thursday made the chances for a permanent Medicaid expansion look less likely: Some advocates and Democratic senators expressed concern that it might reward recalcitrant GOP lawmakers, or even incentivize states that have expanded Medicaid to reverse course, potentially forcing the federal government to pick up the tab for states that had previously expanded Medicaid.

THERE ARE MORE than 2 million poor, uninsured adults in the so-called Medicaid gap. Of those, roughly 800,000 are women of reproductive age. Most people who fall into the gap are unlikely to afford insurance on the individual marketplace because they’re ineligible for premium subsidies, which help offset high monthly costs. And while the Affordable Care Act applies to most private insurance plans, according to the Guttmacher Institute, 13 percent of workers in 2019 were enrolled in “grandfathered” plans exempt from the ACA’s protections — including the mandate for contraception coverage.

In Washington, D.C., and 38 states that have expanded Medicaid since 2014, public health researchers found an immediate and large increase in insurance coverage for low-income women of reproductive age. Health and economics researchers also found that low-income women in expansion states were more likely to use effective birth control methods during their postpartum period than their counterparts in holdout states, and were more likely to use long-acting reversible contraception, considered among the best methods for preventing unwanted pregnancies. The proposed Medicaid expansion plans would increase access to birth control and reproductive services in the remaining 12 states.

On Tuesday, Planned Parenthood Federation of America issued new fact sheets detailing what Medicaid expansion would mean for each state that has until now resisted broadening coverage. In Alabama, for example, Planned Parenthood says 51,000 women of reproductive age would gain access to affordable health insurance, including more than 20,000 Black women. In Texas, more than 324,000 women of reproductive age would gain affordable health insurance and access to services, including 48,000 Black women and 1930,000 Latina women.

“I can’t tell you how many people I’ve seen who wanted birth control and were not able to get it,” said Marty. “The county health departments are booked two to three months in advance, so by the time they get there it’s too late; and then we have patients who do have private doctors, but the doctors are denying them the coverage.”

Jamila Taylor, the director of health care reform and a senior fellow at the Century Foundation, said expanding Medicaid could definitely help support women who fall into the coverage gap, who lack insurance or access to comprehensive maternal services. “We know this affects people not ready to be parents, and those who are ready to have children,” she said.

So if either the Ossoff-Warnock-Baldwin plan or the Doggett proposal passes, the changes could expand access to contraception for thousands of currently uninsured people. But would they allow Medicaid to cover solutions like medication abortion? Thanks to the Hyde Amendment — a prohibition on using federal funds to cover abortions outside of the exceptions of rape, incest, and endangerment to a woman’s life, which Congress has reauthorized every year since 1976 — the answer is still no.

There is legislation pending in the House and Senate, called the Equal Access to Abortion Coverage in Health Insurance Act of 2021, or EACH Act, that would overturn the Hyde Amendment — but like the Women’s Health Protection Act, it stands little chance of passage with the filibuster in place. On Wednesday, Manchin told the conservative National Review that he was open to considering Medicaid expansion as part of reconciliation — but only if the package includes the Hyde Amendment. States can, however, still opt to use their own Medicaid funding to cover abortions, and 16 primarily blue states already do.

As long as the Hyde Amendment remains in place, those living in regions at odds with reproductive health access will have to rely on more difficult and sometimes risky measures to terminate their pregnancies. If the amendment were repealed, Medicaid funds could potentially be used to prescribe medication abortion, offering an alternative in places where clinics are closed. But many hostile states have broadened their anti-abortion measures to cover mifepristone and misoprostol. Since April, lawmakers in Republican-led states, working closely with anti-abortion groups like the Susan B. Anthony List, have moved to pass even more restrictions on medication abortion.

Marty, who authored “Handbook for a Post-Roe America” in 2019, said for now people should consider obtaining medication abortion pills before they are pregnant, a process known as advanced provision. Some are are already doing this in Texas through Aid Access, an organization based in Europe that a Dutch doctor started in April 2018.

“At this point [activists] do not believe that someone who takes this step is under threat of a lawsuit because pregnant people are explicitly excluded from [SB8], but it could be a potential lawsuit if that person who ordered it gave it to someone else,” said Marty.

But shipping pills from Europe can result in delays. “Hypothetically, there might be people who try get ahold of medication abortion from one of these online retailers despite living in a different city,” said Marty, referring to U.S.-based telehealth organizations like Abortion on Demand. In those cases, which could also present legal risk, women might ask contacts they know living in more abortion-friendly states to obtain the medication and then quietly mail them the pills.

“As an author and activist, I firmly believe that all people need to be [ready] for when abortion is completely illegal and inaccessible,” said Marty. “It’s become clear to me that abortion will mostly disappear in red states.”

Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment

Originally published in Rewire on December 16, 2020.
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Amy Coney Barrett has been a Supreme Court justice for less than two months, yet Arkansas lawmakers wasted no time introducing an anti-abortion bill aimed squarely at the Court, whose new conservative supermajority puts the future of abortion rights in serious jeopardy.

Advocates have called the Unborn Child Protection Act, introduced in November ahead of Arkansas’ next legislative session, “so egregious”—particularly in light of the COVID-19 pandemic that continues to ravage the country with no federal relief bill in sight.

Arkansas already has a law banning abortion should the Supreme Court overturn Roe v. Wade20 other states have similiar laws in place.

The same lawmaker who sponsored the state’s so-called trigger ban last year, Republican state Sen. Jason Rapert, introduced this latest bill that he said was meant to more directly challenge Roe. He did not return multiple requests for comment.

SB 6 would ban all abortion unless a woman’s life was in danger, and like the trigger ban, it has language unusually directed to the nation’s high court.

“The State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” the legislation reads.

ACLU of Arkansas Executive Director Holly Dickson issued a statement calling Rapert’s bill “cruel and blatantly unconstitutional.” She urged state lawmakers to shelve the bill and focus on COVID-19 relief.

“Let’s be clear: if passed, this brazenly unconstitutional abortion ban will be struck down in court, and legislators who passed it will have achieved nothing but having wasted taxpayer dollars on an unlawful measure and diverted scarce resources from the urgent needs our communities face in the midst of an ongoing and devastating pandemic,” Dickson said.

Gloria Pedro, Planned Parenthood Great Plains Votes’ regional manager of public policy and organizing for Arkansas and Oklahoma, said the bill is the “equivalent of a demand letter to the Supreme Court, which is not how the Supreme Court works. And there’s already a trigger law passed, which is why this is so egregious.”

Patients can access abortion in Arkansas up to the 20th week postfertilization, or 22 weeks’ gestation. There are two clinics in the state, both in Little Rock, though only one provides procedural abortions.

Advocates for reproductive rights in Arkansas have had their hands full fighting back against anti-choice legislation over the last decade, with some bills landing in multiyear battles in federal court. Conservatives have long eagerly eyed the Eighth Circuit, a federal appellate court with jurisdiction over Arkansas, as a way to bring a challenge against Roe to the U.S Supreme Court. Back in 2015, Eighth Circuit appellate judges recommended the high court “reevaluate its jurisprudence” on abortion, and urged for more state discretion over reproductive decision-making.

One such challenge began in 2017, after Arkansas legislators passed new laws to criminalize doctors who perform dilation and evacuation (the most common second-trimester abortion procedure) and require a patient inform the person who got them pregnant before they could get an abortion. The ACLU of Arkansas and the Center for Reproductive Rights sued over those laws and additional state restrictions, like requiring doctors to notify local law enforcement when patients under 17 years old seek to terminate a pregnancy. The laws were temporarily enjoined.

This past August, a three-person Eighth Circuit panel ruled against the plaintiffs, citing Chief Justice John Roberts’ concurrence in the Supreme Court’s recent June Medical Services v. Russo decision. In that case, the Supreme Court ruled that a Louisiana law placing hospital admission requirements on abortion clinic providers was unconstitutional, echoing its 2016 position in Whole Woman’s Health v. Hellerstedt.

But in his concurring opinion, Roberts argued that while he agreed with his four liberal colleagues that the Louisiana case was virtually identical to Whole Woman’s Health, he believed the “undue burden” standard used to decide that case was wrong, and should not involve weighing costs and benefits of an abortion restriction when judging its legality.

“We don’t agree that one justice’s opinion can change the precedent set by Whole Woman’s Health that clarified the undue burden standard requires this balancing standard,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, who asked the Eighth Circuit to review the decision en banc. (That means the case will be heard before the entire bench of judges, rather than a three-person panel.)

Schneller said “there’s always a chance” a case like this could wind up at the Supreme Court, but for now they’re just waiting on the Eighth Circuit.

That wait came to an end Tuesday afternoon when the Eighth Circuit summarily rejected the en banc request in a one-page order. Without further court intervention Arkansas’ restrictions could take effect as soon as December 22.

Meanwhile, reproductive rights advocates have also been dealing with harassment related to the pandemic. Arkansas health officials earlier this year sent a cease-and-desist letter to Little Rock Family Planning Services, arguing their procedural abortions were “elective” and should wait until after the public health crisis ends. State officials also tried to force patients to get negative COVID-19 tests within 48 hours of getting an abortion, even though tests were in short supply.

While advocates have successfully fended off some of the worst restrictions, reproductive rights groups concede there are more anti-choice bills passed every legislative session than could possibly be challenged.

“We can’t challenge every single restriction and those restrictions are continuing to stack on the books,” Dickson said. “They join together to create substantial obstacles and burdens for patients.” There was a 30 percent decline in the Arkansas abortion rate between 2014 and 2017, and according to the state’s health department, 2,963 abortions took place in Arkansas in 2019.

Pedro of Planned Parenthood Great Plains Votes noted that Arkansas has the fourth highest maternal mortality rate in the nation and one of the highest infant mortality rates. In 2016, Arkansas had the highest teen pregnancy rate in the country, and public schools in the state still do not provide comprehensive sex education and primarily endorse abstinence-only instruction.

“It’s not just that these bills take away reproductive rights, which is crucial, but they’re also having a real tangible impact in our state, and things are getting worse,” Pedro said.

Pedro and Dickson say the most helpful thing would be for residents to pressure their state representatives to avoid wasting energy and resources on more anti-choice bills.

“Arkansas does not need to fly the trial balloon and be the trendsetter on setting regressive law,” Dickson said. “We have so many other things that we need our state to focus on.”

Strategies for a Post-Roe America — and for Post-Roe American Women

Originally published in The American Prospect on March 11, 2019.
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Independent journalist Robin Marty, one of the nation’s top reporters covering reproductive rights, has published a new book—Handbook for a Post-Roe America—with practical advice for women who might actually need to terminate a pregnancy in the future and for people who support abortion rights. While reproductive choice is at risk regardless of what happens at the Supreme Court, there’s little question in Marty’s mind that the landscape will soon look different in a world where Roe is overturned. The faster people accept that, she argues, the faster people can start preparing. This conversation has been edited and condensed.

Rachel Cohen: So, to get started, do you think we are headed for a post-Roe America?

Robin Marty: I am so certain at this point that I will even tell you it will be overturned in 2021. Abortion opponents already have all the cases they need, I’m fairly certain at this point it will be a case on banning D&E [dilation and extraction, a surgical abortion procedure typically performed during the third trimester or the later part of the second trimester] and that will be the case they use to overturn Roe. We know the Fifth Circuit is looking at it right now, and we’re pretty sure that court is going to say it’s not unconstitutional for Texas to do a D&E ban. And that would leave a split circuit decision, which would let the Supreme Court weigh in.

The Supreme Court will pick a case where lawyers can be extraordinarily gruesome. Abortion opponents love D&E bans because they’re so grotesque and no one can defend them without saying you have to pull out a limb.

I expect 2021 because they won’t have a case before the next presidential election, they know that’s the only way they can get the same evangelical voters out to get Trump re-elected. Once the election is over, they will go ahead and move as quickly as possible.

You’ve notably said you think the end of Roe would be a good thing.

I’m quite excited. Roe being overturned is the best thing that could happen to our movement. We’ve been treading water since 2010, we’ve seen all these red states that have been chipping away at access, but it took until Trump was elected and Roe was in honest-to-God jeopardy for all the really privileged and white people to understand that abortion could be cut off for everyone, not just the people who have already lost access. Ending Roe will put everyone on the same level.

Does that mean you supported Gorsuch’s and Kavanaugh’s confirmations?

Oh God, no! They are such a disaster for civil rights and more, even beyond just abortion.

Don’t you think privileged women in states like Massachusetts, New York, and California will continue to feel like the rollback in access doesn’t mean much for them personally?

But they will still be able to see the impacts more directly. Just being able to see people put in jail for accessing their own care—I mean people will get abortion pills, people will get caught, and there will be stark consequences—I think that will be the turning point. It’s like [in 2012] in Ireland when Savita [Halappanavar] died from a septic miscarriage after having been denied an abortion. That was a turning point for the country.

When we go post-Roe, what we’re going to have to decide as a movement, and as activists in general, is what is our new standard? What is accessible? Why does it have to be at a clinic? Why does it have to cost $500 out of pocket at a minimum? We’ve been so busy trying to protect this right that honestly isn’t that great. Is it worth protecting anymore? I don’t know that it is.

Would you say this is a mainstream view among pro-choice leaders?

It’s not a mainstream view, per se, but it’s something that I’ve been talking to audiences about as I’ve done my book tour. Everyone’s first thought is: How could you say Roe coming to an end is a good thing?! And then we talk about it, how now everyone will be in the same position as these marginalized communities that have one clinic in their state and a 72-hour waiting period, and once people understand that abortion is already inaccessible, and maybe it’s time to just get rid of Roe and start fighting for the human right to decide, people get it.

National organizations don’t like any of this, it would be dismantling the power of national organizations and effectively redistributing those resources to local groups. A lot of my work is about why we need to take abortion outside of clinics.

You mean to do more abortions at home?

Yes. In some way, what we’re seeing is the same debate we saw around home births and midwives. This isn’t very different from that, but there’s a resistance to the idea that we don’t need to do this procedure at a clinic, that we don’t have to have formal medical intervention. A lot of this can be left up to us. If we’ve already proven it’s not dangerous—which we have at this point, over and over—then we should be more forceful in pushing for that.

Your book was very practical and concrete. Can you talk about some of the specific suggestions you laid out for emergency contraception?

Emergency contraception was actually how the book started. As soon as [Justice Anthony] Kennedy announced his retirement, I saw a ton of people saying online they were going to give money to Planned Parenthood and stock up on emergency contraception. And my first thought was, “Whoa, now.” That led to Huffington Post piece where I tried to say how you can do things like that in a more responsible way, which turned into this book.

Sterilization came up in your book as one way women could prepare for a post-Roe America. I was a bit surprised to see that. In your research, are you finding that’s already happening?

Yes, I am finding that women who have already decided they would not be interested in having children, or more children, are looking at this. The problem is it’s quite difficult to get sterilized—doctors don’t like to do it. It’s kind of a paternalistic thing, like saying you surely haven’t met the right man, or you’ll regret not being a mother. There are also a lot of rules—like you have to give consent for the procedure two weeks before you get it done. I have kids and I’ve also been sterilized.

In a chapter focused on organizing, you urged readers to focus on city councilmembers. I feel like the conversations around abortion restrictions has been focused heavily on state legislators and the U.S. Supreme Court.

The reason this book exists is to help take our attention off the bigger picture—which we’ve been paying attention to for a really long time. But national solutions are just not the best place for us to use our resources right now. My book is about drilling down as local as you can get, investing in your state, in your city, and in your local clinics.

One thing we’ve noticed about how power works is the more directly you’re involved in the area in which you can have real power, the more exponentially powerful that is. So for city councils, we’ve seen they are often the last bastion of protecting or ending access to abortion. We saw that when Whole Woman’s Health was trying to open a medication abortion clinic in Indiana. At first it was the city council that tried to block it, then the mayor overrode it, and then the city council tried to block it again. It’s now still going through lawsuits.

City councilmembers have say over things like zoning and noise ordinances, ensuring that buffer zones can be upheld. If there is a city council that is friendly toward abortion rights, that often impacts how the police will deal with people who protest and attend clinics.

Can you talk about the Pregnant Women’s Dignity Act?

The one thing we really need to do is get abortion out of the criminal code. One way to do that is through this law, the Pregnant Women’s Dignity Act, which is promoted by the Public Leadership Institute. It says if a person has any kind of poor birth outcome—it’s not her fault, it’s not something that should be investigated, this is not something that has a place of blame. It doesn’t matter if she did it on purpose, if it was by accident—it’s just a personal medical thing that has occurred and it does not involve the police or the courts.

You explore the idea of creating a new kind of infrastructure of housing, transportation, safety, and financial support for women who need to travel to get abortions in a post-Roe America.

I’ve been thinking about this a lot. Say that Roe is overturned and in Kentucky the state makes abortion completely illegal, and there’s just one remaining clinic. What happens to that clinic? Would that be a good place that you can then set up a hostel for women who need to then travel out of state to get an abortion? If Roe is overturned there will be no abortion in the entire Gulf area, no abortion in most of the Rust Belt. We’re talking about humongous chunks of the country. People are talking about how to make states like New York and Colorado these safe havens where people can go, but what’s the best way we can get people together so they can actually do it efficiently?

Can we bring all the people in the state of Kentucky together so they can all take a bus to Chicago together? Then none of them will have to worry about needing to drive. We have to think about how to work with systems that will be left, and how best to use it especially for those who aren’t going to have the funds to do long-distance travel.

Do you think we’ll increase the number of clinics in the future?

I’ve heard some people say, “Okay, we should build abortion clinics next to airports, so people can get off, get the procedure, and go right back home,” and my first thought was: Have these people tried to open a clinic lately?!

Just last [month] there was a piece in The Austin Chronicle about Whole Woman’s Health losing their Austin office, and they had spent months trying to find a new place they could move into. And this is in liberal Austin! There’s just so much pressure, no one wants to sell or lease their property to an abortion clinic.

I think for the most part what we have for clinics is as much as we’re going to get. And I don’t think that matters—I don’t think we should need as many abortion clinics. If people could just do it at home, as they should be able to especially with telemedicine, then we just need to have enough clinics that people can do follow-ups for later abortion or for people who can’t do it.

But haven’t studies shown that women prefer surgical abortion if they have the choice?

I totally understand why people would choose surgical abortion—you don’t have to worry about the follow-up, you don’t have to see the procedure, but if you look at Iowa, they had an extraordinarily successful telemedicine abortion program until [legislators] took it down. And what they discovered in Iowa was it didn’t increase the number of people having abortions, they just were able to have them earlier.

Your book also looks at the question of civil disobedience and direct action in a post-Roe America.

Yes, I think we’re going to see a lot more civil disobedience. There was a Mother Jones article recently about a woman who sold medication abortion online for years, and that finally got shut down by federal agents. The only thing that made the police finally get involved was because a man used the medication he bought from her to commit a crime.

As I was reading it I thought, how many people would need to start online websites, offering medication abortion for sale, before the FDA threw up their hands and said I can’t keep up with them all? That’s the kind of thing I’m thinking about. What’s the critical mass where so many people are breaking the law that it’s no longer feasible for authorities to keep up? And who are the right people to do it and how do we organize en masse?

What are some other examples of civil disobedience that you can imagine?

There’s a bill that was just reintroduced in Congress, and it comes up every year, the Child Interstate Abortion Notification Actor CIANA, which would make it a crime to transport a minor across state lines to get an abortion without parental consent. One of the best things NARAL ever did was they dubbed this the “Jail Grandma law.” They brought to mind a picture of a young girl who goes to a different state to get an abortion, and for some reason her parents couldn’t take her so her grandma takes her across the border. Are we really going to throw grandma in jail? That ground everything to a halt, and that is a perfect example of why we need old white ladies to do civil disobedience.

So the last thing I wanted to ask you about was surveillance, and why being conscious of that will be important in a post-Roe America.

One of the reasons it’s really important to pay attention to what you’re saying over open phone lines, over what you’re searching on Google, over text messages, is that when Purvi Patel was arrested in Indiana for allegedly inducing her own abortion, the state went back and forth on is this murder? Is this feticide? A lot of what they used against Patel were texts in her own phone. We need to be aware that if we do decide that it’s time to organize outside the legal bounds, or if someone is going to try to do an abortion outside of a legal clinical setting, that person will need to be really careful about what they put down in writing.

I’m someone who generally hated being pregnant, I did not have comfortable pregnancies. I don’t know how many times I texted someone saying, “God, I wish I wasn’t pregnant.” If I had had a miscarriage, what would stop some suspicious doctor or some overzealous prosecutor to say, hm, she had a miscarriage, I wonder if she induced her own abortion, and then found that text?

 

Arkansas’ Medication Abortion Ban Was Hit With a Temporary Restraining Order. Here’s What’s Next.

Originally published in Rewire News on June 20th, 2018.
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A federal judge on Monday granted a brief reprieve from an Arkansas law that dramatically restricts abortion access in the state by effectively banning medication abortion.

The first-of-its-kind statute would limit abortion access at all but one Arkansas health center. The law had been in effect since May 29, when the U.S. Supreme Court declined Planned Parenthood’s request to hear the case. The plaintiffs filed for emergency relief following the high court’s dismissal, and U.S. District Judge Kristine Baker agreed to grant them a two-week restraining order, which will expire at 5 p.m. on July 2.

But the battle to stop the law is far from over.

This fight began in the spring of 2015, when the GOP-majority Arkansas legislature passed Act 577, requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said there is “no medical basis” for such requirements, and abortion providers, especially those in conservative states, typically struggle to find hospitals willing to partner with them.

The law was set to take effect at the start of 2016, but on December 28, 2015, Planned Parenthood sued to block it. A temporary restraining order was issued on December 31 of that year, and three months later, Judge Baker issued a preliminary injunction as Planned Parenthood Great Plains continued with their lawsuit against the state.

An Eighth Circuit Court of Appeals panel in July 2017 lifted Baker’s injunction, asserting she would need to more concretely show how Arkansas women would be harmed by the admitting privileges law. A year earlier the Supreme Court overturned a package of abortion restrictions that included requirements for admitting privileges. The justices determined the rules posed an unconstitutional burden on Texan women seeking to end their pregnancies.

Planned Parenthood says that if the law were to take effect, its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion. Neither of those facilities provide surgical abortions.

The health care provider requested the Eighth Circuit’s full bench of judges review the panel’s July ruling, but in late September, the appellate court declined the request. The Eighth Circuit is one of the most conservative appellate courts in the country; two years earlier its judges recommended that the U.S. Supreme Court “re-evaluate its jurisprudence” on abortion, urging for greater state power over reproductive health.

The next step for the plaintiffs was petitioning the Supreme Court to review the Eighth Circuit’s decision. The appellate court agreed to keep the preliminary injunction in place in the meantime, which meant the law has not been enforced all year. But at the end of May, the Supreme Court finally responded to Planned Parenthood’s petition and declined to intervene. This set the law into immediate effect.

Planned Parenthood quickly filed for a temporary restraining order, a request which was finally granted this week. In a press statement, Planned Parenthood said that beginning on May 29, “health center staff were forced to immediately call patients to inform them they would no longer be able to access their medication abortion.”

Some patients, according to Planned Parenthood, were already en route to their appointments, and others were “left scrambling to alter their work and child care schedules, and to secure additional funds required to undergo the state-mandated counseling process over again for a surgical abortion or to travel out of state, further delaying care.”

Emily Miller, director of communications for Planned Parenthood Great Plains, told Rewire.News that the next steps are not clear, though at least until July 2, when the temporary restraining order lifts, providers will again be able to provide medication abortion.

“We’re approaching it like we have a temporary restraining order that will run for fourteen days, and then we’ll focus on our next step which is the preliminary injunction,” Miller explained. “But we don’t know exactly what course the state will choose to take.” The state might try to skip the preliminary injunction step and go straight to a full hearing. Miller says if that does happen, the two-week restraining order could be extended.

Ever since the Eighth Circuit demanded the plaintiffs more clearly show how the admitting privileges law would affect patients, Planned Parenthood has worked to collect and document that information, Miller said.

Last month, research was released that sought to systematically evaluate the availability of abortion care and distance from all major U.S. cities. The study’s objective was to describe abortion facilities and services available in the country from the perspective of a potential patient searching online, and to find out which cities are farthest from available abortion care.

Alice Cartwright, project director at Advancing New Standards in Reproductive Health and co-author of the study, told Rewire.News that their research is exactly the kind of data plaintiffs could refer to if they returned to court.

“We found that abortion access is better in the northeast and western part of the country and one reason is they were more likely to have a higher proportion of clinics that were only providing medication abortion,” said Cartwright.

The organization’s research team worked to determine the number of cities with at least 50,000 people where patients would have to travel 100 miles or more to reach the closest abortion provider. As of spring 2017, they found 27 such cities in the US. Cartwright says if this Arkansas law were to take effect the number of cities could increase much more.

The rate of medication abortion has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. The procedure typically involves using both Mifeprex—often referred to as “the abortion pill”—and a second drug, misoprostol. With access to surgical abortion diminishing at a rapid clip, medication abortion is recognized as a safe, much-needed health care alternative, especially for those living in rural and medically underserved parts of the US.

Arkansas and Hawaii Lawsuits Present Challenges and Opportunities For Medication Abortion

Originally published in The American Prospect on November 3, 2017.
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The U.S. abortion rate recently hit its lowest level since Roe v. Wade, but medication abortion—non-surgical abortions induced through drugs—has increased in popularity since the Food and Drug Administration first approved Mifeprex in 2000. (Medication abortions typically involve using both Mifeprex—colloquially known as “the abortion pill”—and another drug, misoprostol.)

Yet despite the proven efficacy of medication abortion for safely terminating early-stage pregnancies, a series of regulatory and statutory restrictions have prevented many women from being able to use this abortion option. Two different legal battles taking place right now—in Arkansas and Hawaii—illustrate why.

In 2015, Arkansas passed a law requiring physicians who prescribe drugs for non-surgical abortions to secure contracts with a second doctor who has hospital-admitting privileges. The American College of Obstetricians and Gynecologists and the American Medical Association have both said that there is “no medical basis” for such mandates.

It can be difficult for abortion providers—especially ones in conservative states like Arkansas—to obtain admitting privileges, because hospitals tend to avoid partnerships that could produce a backlash from anti-choice groups. When Texas passed a law in 2013 requiring all abortion clinics to obtain hospital-admitting privileges and to meet ambulatory surgical center building standards, nearly half of the state’s clinics shut down soon afterward. The U.S. Supreme Court overturned the package of restrictions in 2016, concluding they posed an unconstitutional burden on Texan women seeking to end their pregnancies.

In March 2016, U.S. District Judge Kristine Baker issued a preliminary injunctionblocking the Arkansas admitting-privileges law from taking effect while Planned Parenthood Great Plains sued the state. But this past July, an Eighth Circuit Court of Appeals panel lifted Baker’s injunction, concluding that she would need to show more specifically how Arkansas women would be harmed by the law. Planned Parenthood maintains that its two abortion facilities in Little Rock and Fayetteville would no longer be able to provide medication abortion if this law were to take effect, and that neither of those centers provide surgical abortions.

Following the July decision, Planned Parenthood requested that the Eighth Circuit’s full bench of judges review the panel’s ruling. But in late September, the Eighth Circuit declined to do so. “The extremists who put this law into place will now be responsible for the lives they’ve put in harm’s way,” said Aaron Samuleck, the interim president and CEO of Planned Parenthood Great Plains, after the September decision.

The Eighth Circuit is one of the most conservative appellate courts in the country. In 2015, its judges recommended that the U.S. Supreme Court “reevaluate its jurisprudence” on abortion, urging the high court to return greater reproductive decision-making power to the states.

Now Planned Parenthood Great Plains has notified the U.S Supreme Court that it intends to file what’s known as a petition for a writ of certiorari, which essentially means that the organization plans to ask the high court to review their case. When they do file their petition, Planned Parenthood also plans to also ask the Supreme Court to issue a preliminary injunction to block the admitting-privileges law from taking effect. Planned Parenthood has also gone back to the Eighth Circuit to ask that the appellate court refrain from enforcing the law while they petition the Supreme Court—a request the Eighth Circuit granted in mid-October. So for now, the law remains on hold.

Meanwhile, a very different sort of medication abortion challenge is under way in Hawaii. The FDA has Mifeprex (mifepristone) on its Risk Evaluation and Mitigation Strategies list (REMS), a designation the government uses when it determines that increased restrictions are necessary for a drug’s benefit to outweigh its risks. Because the abortion pill is on the REMS list, the FDA can require that only certified medical professionals in hospitals, medical offices, or clinics administer it. In other words, women can’t fill a prescription for Mifeprex at their local pharmacy. But just as it can be difficult for abortion clinics to obtain hospital-admitting privileges because of political objections, many medical centers also encounter political resistance to stocking and distributing Mifeprex.

In early October, the American Civil Liberties Union filed a lawsuit against the FDA, charging that the agency was both violating its own statutory authority, as well as the Constitution’s due process protections, by preventing commercial pharmacies from filling Mifeprex prescriptions. The lawsuit was filed on behalf of a Hawaiian doctor on Kauai, who cannot stock Mifeprex in his office or direct women to nearby abortion clinics since there are none on the island. If patients come to him seeking early-stage abortions, he has to tell them to fly to another island for the procedure—something that can both increase a patient’s costs, as well as delay it for weeks, if not entirely.

Reproductive rights advocates say there’s no reason for the FDA to put Mifeprex on the agency’s list of particularly risky drugs. In 2016, the American Congress of Obstetricians and Gynecologists stated that putting the abortion pill on the REMS list “is inconsistent with requirements for other drugs with similar or greater risks, especially in light of the significant benefit that mifepristone provides to patients.” In their new lawsuit, the ACLU argues that the restrictions are unscientific and onerous. They note that blood thinners, Viagra, and other drugs carry greater risks than Mifeprex, yet local pharmacies can fill prescriptions for these medications.

In an interview with The American Prospect, Julia Kaye, a staff attorney with the ACLU’s Reproductive Freedom Project, says the Arkansas and Hawaii cases target different issues, but ultimately revolve around the same core problems: “unconstitutional and unjustified” restrictions on reproductive health care.

Moreover, despite the FDA’s stated concern about possible risks, the agency does not even require patients to take Mifeprex at a designated health-care setting; they only must obtain it there. “There is simply no safety benefit to requiring that a patient be handed a pill at a clinic to then swallow it home, rather than [receiving it] at a pharmacy,” says Kaye. (Some health-care facilities prefer patients to take the medication on site, but the FDA doesn’t require it.) The FDA’s own research also concludes that medication abortion “has been increasingly used as its efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.”

“Often health-care providers are unable to stock the abortion pill because of bureaucratic hurdles, or because of opposition to abortion by co-workers,” explains Kaye, who adds that health-care providers must navigate multiple layers of institutional approval before they can administer the drug. “The process is not only complicated and time-consuming, but because there are so many individuals who need to sign off on procurement, even a single individual who objects to abortion can significantly delay or even derail stocking this medication,” she says.

While research suggests that women generally prefer surgical abortions (which tend to be faster procedures that involve less bleeding) over medication ones, many women are unable to access surgical abortions, due to the diminishing number of abortion clinics, as well as restrictions such as mandatory waiting periods. Medication abortion provides women with much-needed reproductive health-care alternatives—especially low-income women, and women living in conservative, rural, and medically underserved parts of the country.

An ACLU win in the Hawaii case would affect FDA restrictions on Mifeprex nationwide.

Late-Stage Abortion Provider Won’t Succumb To Protestors Who Forced Him Out of His Last Maryland Clinic

Originally published in The Intercept on October 30, 2017.
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For seven years, protesters had targeted LeRoy Carhart and his abortion clinic in Maryland, one of just three places in the country women could go for late-stage abortion care. Two months ago, the protests finally worked, as Carhart’s landlord abruptly bowed to pressure and shuttered the clinic, selling the space to anti-abortion protesters instead.

But Carhart is back, with a new Maryland clinic.

Since 2010, he has commuted weekly to Maryland from his home in Bellevue, Nebraska. Carhart is a 76-year-old retired Air Force surgeon who has also owned and operated a Bellevue-based clinic with his wife Mary Lou since 1992. He began traveling to Maryland regularly when Nebraska passed the nation’s first 20-week abortion ban in 2010. Carhart’s mentor, George Tiller, used to provide later-stage abortions at his clinic in Wichita, Kansas, but was murdered in 2009 while attending church.

Maryland is one of the most supportive states in the nation when it comes to access to abortion at all stages of a pregnancy, according to Diana Phillip, the executive director of NARAL Pro-Choice Maryland. Nebraska, on the other hand, is one of the more restrictive.

Earlier this month, the U.S. House of Representatives voted along party lines in favor of a 20-week abortion ban based on the dubious scientific claim that fetuses can feel pain at that stage of gestation. A similar bill passed the House in 2015 but was blocked by Senate Democrats. Senate Majority Leader Mitch McConnell has promised to bring this new bill to a vote, and President Donald Trump has also said he strongly supports it. Though reproductive rights advocates say any 20-week federal ban would face immediate constitutional challenge, the measure nonetheless targets abortion providers like Carhart, who could face up to five years in prison for their services.

Carhart is undeniably committed to his work. In addition to the four days he spends working in Maryland, the physician works out of his Nebraska clinic two or three days per week, meaning he spends 26 out of every 28 days on the job.

“I just know it needs to be done, and it doesn’t bother me,” Carhart told me, as we sat together in his new clinic, located at the Wildwood Medical Center in the Washington, D.C., suburb of Bethesda. The walls are adorned with art and posters championing female resilience. “Feminism is the radical notion that women are people,” reads one framed poster hanging on a wall. “Females are strong as hell,” says another.

Carhart’s former Maryland clinic – Germantown Reproductive Health Services, located about 11 miles away – had been owned by Todd Stave and his sister, Nancy Stave Samuels. The two inherited it and another Prince George’s County abortion clinic from their parents; their father had been a gynecologist and obstetrician who long provided health services including abortions in the D.C.-area. While the Staves and their abortion facilities have always faced harassment, including a clinic firebomb in 1982, the pressure ramped up in 2010 when Carhart started working in Maryland. The Maryland Coalition for Life, an anti-abortion advocacy group, formed that year in response to Carhart’s arrival.

In addition to regular protests outside the clinic, calls to the landlords’ homes dramatically escalated over the last few years. A group of protesters even picketed Todd Stave’s daughter’s middle school in 2011, holding up gruesome signs along with her father’s picture and contact information.

The Maryland Coalition of Life helped raise money to close both the Germantown and the Prince George’s County clinics in one fell swoop. About half of the $1.2 million offered to Stave and his sister came from an anonymous Christian businessman, who now owns the property, and the other $600,000 from roughly 400 donors, according to Rewire.

In interviews, Stave said he felt conflicted about the move to close the two clinics, but that at the end of the day it was a dollars-and-cents decision. “There’s a lot of sadness, yeah, a feeling that we’re letting the public down,” Stave told the Washington Post“It’s a tough thing to do, there’s no question about it.” He said the rising costs of security and the declining demand for abortion ultimately drove his decision. The Guttmacher Institute reported this year that the abortion rate has fallen to its lowest level since Roe v. Wade, though the exact reasons are unclear.

It wasn’t easy for Carhart to find a new location for his clinic. “We looked at other spaces and unfortunately it’s really hard to find contractors, vendors, and landlords for abortion clinics because of the harassment,” said Chelsea Souder, a spokesperson for Carhart’s Bethesda and Bellevue clinics.  “We had two other possible places and they both fell through when the [anti-abortion activists] got wind of where and started making threats. We were really lucky to find this place.”

“I’ve got a really, really supportive landlord,” Carhart added. “I can say he’s definitely pro-choice. I have no idea if he’s pro or anti-abortion for himself, but he’s pro-choice, and that’s my ideal. That is the middle ground.”

In some ways, the new facility is more secure than the previous Germantown one. According to Souder, local police officers canvas the building and parking lot on a regular basis, and they also also coordinate with local and federal law enforcement. While anti-choice activists still plan on staging regular protests – and have already started – they can’t stand on the medical center property or outside the adjacent SunTrust bank, which has the same owners. The closest anti-choice activists can stand is on the main road, which is far enough away that they can’t be seen or heard from inside the medical facility. “And our patients have to park in the back so they don’t have to walk by protesters,” Souder said.

“We will definitely maintain a prayerful presence on the sidewalk there,” Maryland Coalition for Life Regional Director Andrew Glenn told The Intercept.

Before protests successfully bought out Carhart’s Germantown clinic, they tried other tactics to shut his facility down. In 2013, a 29-year-old teacher from White Plains, New York, died from complications resulting from a late-stage abortion Carhart performed. The activists blamed Carhart and urged the state to close his clinic, but the autopsy report produced by the state’s Office of the Chief Medical Examiner found that the woman’s death resulted from natural causes, not medical malpractice.

The Maryland Coalition for Life also bought a building across the street from Carhart’s Germantown clinic in 2012, launching Germantown Pregnancy Choices, a so-called crisis pregnancy center. CPCs are facilities that work to persuade women against having abortions, providing them with resources and support, but also often disseminating misleading or patently inaccurate medical information. With an estimated 3,500 nationwide, crisis pregnancy centers outnumber abortion clinics 3-to-1.

Shortly after Carhart’s clinic was bought out, Germantown Pregnancy Choices closed too. Janet Kotowski, the crisis pregnancy center’s former manager, told The Intercept that their focus had been on connecting women who came in from outside Maryland with supporters back where they came from. (More than two-thirds of Carhat’s Germantown patients were from out-of-state.) “Because we have multiple other pregnancy centers in Maryland that offer ultrasounds, counseling, and post-abortive services for women, we felt ours was no longer needed,” she said.

When asked if she expects a new crisis pregnancy to open near Carhart’s Bethesda clinic, Kotowski said she doesn’t know. “I know that people are motivated to help these women, and we have seen women who change their minds when we offer help, so we would like to have that opportunity again,” she said.

Glenn of the Maryland Coalition for Life also said the group is currently exploring all its options with regards to opening a new crisis pregnancy in Bethesda.

According to data from the Centers for Disease Control and Prevention, a little more than 1 percent of abortions in the United States occur after the twentieth week of pregnancy, which is halfway through a woman’s second trimester. Carhart’s website states that the clinic’s most common reasons for providing later-stage abortions include “the very late diagnosis of a pregnancy in a woman with a severely compromising medical condition, very young maternal age, rape and incest.”

Anti-abortion advocates insist that Carhart and the services he provides are dangerous.

“I’ve been tracking Mr. Carhart since the mid-1990s and he’s one of the most ghoulish individuals you’ll ever meet,” Troy Newman, president of the anti-choice Operation Rescue, told The Intercept. When asked if he worries the procedure will become even less safe for women if it’s forced underground, Newman shot back that it’s already unsafe. “There’s nothing safe about abortion, certainly not for the baby,” he said. “Carhart is a butcher.”

Kotowski agreed, pointing to a lawsuit filed in 2016 by a former patient alleging negligence and misconduct, but the suit settled out-of-court, with no admission of liability. And Carhart’s new clinic is licensed by the Maryland Department of Health and certified by the National Abortion Federation.

Newman of Operation Rescue spoke excitedly about the progress his allies have made in restricting access to abortion across the country. “We got Trump elected – we put a lot of effort into that, we’re putting Supreme Court justices in place, and now stacking legislation that is going to end abortion as we know it,” he said. “I think these guys should be very worried they’ll soon end up in jail.”

Despite years of threats and harassment, and the escalating anti-choice political climate, Carhart remains undeterred in his commitment to providing abortion care. One goal he has set for his new clinic is to train new abortion providers, both to increase the number of doctors who can perform the procedure across the country, and also to help him balance his substantial workload. There are fewer and fewer places that offer abortion provider training opportunities to medical residents, especially later-stage abortion care, according to Phillip of NARAL Pro-Choice Maryland.

“I’m looking to train two or three other doctors to work with me here [in Bethesda] and then start a training program for residents and fellows to work wherever they want to work,” Carhart said.

“Morale is good, it’s really good,” Souder added. “Everyone feels really excited to get back to work.”

A Legal War in Arkansas Threatens Abortion Rights Everywhere

Originally published in VICE on September 7, 2017.
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When Donald Trump ran for president, despite his long history of pro-choice positions, he essentially offered evangelical Christians a dealHelp elect me, and I will appoint pro-life, conservative justices to the Supreme Court. Sure enough, less than three months into his presidency, Trump’s first SCOTUS appointee—Neil Gorsuch—was confirmed, and anti-choice advocates seemed to be one step closer to their ultimate goal of overturning Roe v. Wade.

It may take another appointee to truly tilt the scales of justice against reproductive rights in America’s highest court. But in the meantime, conservatives have been eyeing the Eighth Circuit Court of Appeals, based in St. Louis, Missouri, as a vehicle to bring such a challenge. That’s where, in 2015, appellate judges urged the nation’s highest court to revisit existing abortion jurisprudence, and turn matters over to the states, as conservatives have long dreamed.

Now that same federal appeals court, which may be more hostile than any other to abortion rights, is getting a bunch of new opportunities to go after a woman’s right to choose in Arkansas—and maybe even set the stage for the end of Roenationally.

Over the past several years, legislators in Arkansas—one of seven states under the Eighth Circuit’s purview—have passed some of America’s most restrictive abortion laws. Already in 2017, Arkansas passed a statute that would criminalize doctors who perform dilation and evacuation (the most common second-trimester procedure), and also permit husbands to sue to doctors to prevent their wives from obtaining abortions—with no exceptions even for rape or incest.

Set to go into effect on July 30, the law was blocked after the American Civil Liberties Union, the ACLU of Arkansas, and the Center for Reproductive Rights sued over it and three other recently-passed abortion restrictions. Lawyers brought the suit on behalf of a physician working at one of the last two abortion clinics in the state, and argued the laws posed unconstitutional burdens on a woman’s right to choose.

On July 28, federal judge Kristine Baker blocked the laws’ enforcement, and Arkansas Attorney General Leslie Rutledge filed for an appeal two weeks ago. A spokesman for the AG did not return multiple requests for comment.

What should worry abortion-rights advocates is that there’s plenty of reason to suspect the Eighth Circuit will be sympathetic to Rutledge’s challenge. In March 2016, Judge Baker issued another injunction against a 2015 Arkansas lawrequiring physicians who prescribe abortion-inducing drugs to secure contracts with doctors with hospital admitting privileges—a high bar to meet in the increasingly conservative state, and one the American College of Obstetricians and Gynecologists and the American Medical Association said had no medical basis. This past July, the Eighth Circuit lifted Baker’s injunction, ruling she would need to more concretely prove that a sizable number of women will face harm under that law.

In an interview with VICE, Steve Aden, chief legal officer and general counsel for Americans United for Life, said he felt the Eighth Circuit’s request for “some real math” was reasonable. He also defended the admitting privileges requirement as a common-sense measure to protect women’s health, noting that other outpatient surgical procedures generally require it. “If you or I go to a clinic and get Lasik or a colonoscopy, chances are really good that the doctors will have admitting privileges,” he said.

Meanwhile, the US Supreme Court last year heard arguments for Whole Woman’s Health v. Hellerstedt, widely considered to be the most significant reproductive rights case in nearly 25 years. In a 5-3 decision, the justices ruled that a package of Texas abortion restrictions imposed an unconstitutional burden on women seeking to end their pregnancies.

Fatima Goss Graves, the president and CEO of the National Women’s Law Center, told VICE anti-abortion opponents haven’t been much deterred by that outcome. On the contrary, she said, they are eagerly working to put more abortion cases before the Supreme Court as soon as possible. “They are still purposely trying to pass extreme laws that conflict with Whole Women’s Health, with Roe, so they’ll [then] be challenged in court,” she said. “That is the strategy.”

Another Arkansas case that could reach the Supreme Court concerns conservative boogeyman Planned Parenthood. In 2015, following the release of doctored videos purporting to show Planned Parenthood illegally profiting from the sale of fetal tissue, Arkansas Republican Governor Asa Hutchinson announced he would be terminating Medicaid contracts with the women’s health organization. Judge Baker blocked the move that September, but last month, a three-person panel on the Eighth Circuit decided Arkansas could cancel its Medicaid contract with Planned Parenthood—a notable departure from rulings in the Fifth, Seventh and Ninth Circuits. On August 30, the plaintiffs appealed to make their case again before the entire Eighth Circuit.

Aden, of Americans United for Life, thinks this case stands a shot of reaching the Supreme Court given the Eighth Circuit’s first decision diverged so sharply from other Appeals Courts nationwide.

I asked Bonyen Lee-Gilmore, a spokesperson for Planned Parenthood Great Plains (an affiliate overseeing Arkansas, Kansas, Missouri, and Oklahoma), if they would appeal to the Supreme Court, should the full Eighth Circuit uphold the Medicaid ruling. “When it comes to next steps in the legal world, we really play it one step at a time,” she said. “Every time a decision comes down, we’re evaluating all our legal options, and the reality is we could end up in the Supreme Court, but we’re not there yet. Right now we’re just seeing if we can successfully secure an en banc appeal.” (To hear a case ‘en banc’ means before the entire bench of judges, rather than a three-person panel.)

It’s worth noting that even though Arkansas’s governor cancelled state Medicaid contracts with Planned Parenthood over the 2015 fetal tissue videos, three Republican-led congressional investigations and 13 state-level probes—including one by a Texas grand jury—found no evidence of wrongdoing.

Gillian Metzger, the Stanley H. Fuld Professor of Law and vice-dean at Columbia Law School, thinks the Eighth Circuit “has really pushed the envelope” on constitutional retraction of reproductive rights in America. But whether these specific cases make it to the Supreme Court, she said, comes down—as always—to how willing justices are to engage with the abortion issue again. “The bigger question is does the Court have an appetite for this after 2016? And my guess it might wait a little bit to see how the Whole Women’s Health decision plays out,” she said.

In the meantime, President Trump will have the opportunity to fill three vacancies on the Eighth Circuit. If all are confirmed, according to longtime legal writer Rox Laird, only one of the Eighth Circuit’s eleven judges will have been appointed by a Democratic president, making it “the most ideologically lopsided of all the US Court of Appeals.”

Even if pro-choice advocates secure Medicaid funding for Planned Parenthood and defeat this round of abortion restrictions in the Eighth Circuit—by no means a safe bet —advocates aren’t expecting legislators to slow down their anti-abortion efforts any time soon. In mid-August, Planned Parenthood Great Plains and the ACLU argued yet another case in Arkansas federal court, protesting a law mandating the suspension of an abortion provider’s license for any minor error found during an inspection. That rule doesn’t apply to any other licensed health center in the state.

“We’ll be on high alert when the legislature returns in 2019 and continue to fight these extreme attacks on women and their rights,” said Rita Sklar, the executive director of the ACLU of Arkansas. “Often, the only way to get Arkansas politicians out of the exam room is to take them to court.”

Indiana Court Overturns Purvi Patel’s Feticide Conviction

Originally published in The American Prospect on July 25, 2016.
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The Indiana Court of Appeals last week overturned the 20-year prison sentence for Purvi Patel, the first woman in the United States to be convicted under a feticide law for having an abortion. The 3-0 decision marks a victory for reproductive rights advocates, who argued that using feticide laws to convict women who end their pregnancies sets a dangerous precedent for abortion rights and criminalizing the procedure.

Legal experts warned that if the conviction were upheld pregnant women would be prosecuted for all sorts of things—from self-inducing an abortion to smoking cigarettes, or even slipping down the stairs. Feticide laws are on the books in 38 states, and were originally passed to protect pregnant women who were victims of domestic violence.

Indiana strengthened its feticide law in 2009, after a pregnant Indianapolis bank teller was shot during a bank robbery, and lost the twin girls she was carrying. In the appeals decision, the judges wrote, “We hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions.” They called Patel’s conviction under a feticide statute “an abrupt departure” from earlier cases.

However, while Patel’s Class A felony charge was vacated, the judges did not drop the second charge in the case. She is still left with a neglect conviction—a felony offense—though the court said it should be reduced from a Class A neglect charge to a Class D one. The minimum sentence for a Class D neglect felony is six months, and the maximum is three years. Patel has already been sitting in jail for more than a year.

Attorneys for both sides continue to review the decision; neither has indicated whether they planned to appeal to the state’s Supreme Court.

Kate Jack, an Indiana-based attorney who has provided legal advice to the National Advocates for Pregnant Women, told The Indianapolis Star that while the issue is not entirely closed, she does think the decision “will really give pause” to anyone considering bringing future feticide charges against pregnant women.

The decision comes on the heels of the Republican National Convention, where Donald Trump picked Indiana Governor Mike Pence as his running mate. Reproductive rights groups have already been organizing against Trump’s incendiary rhetoric around women and abortion rights, and the selection of Pence as his vice president has only angered advocates further.

Aside from being the chief executive of the only state to convict a woman who ended a pregnancy under a feticide statute, Pence has also achieved notoriety for supporting other reproductive health-care limitations. While serving in the U.S. House of Representatives he backed an unsuccessful 2011 federal effort to defund Planned Parenthood. When Pence became governor of Indiana in 2013, he continued to attack the organization. By 2014, state funding for Planned Parenthood had been reduced by nearly half of its 2005 funding levels: Nearly a decade of cuts forced the closure of five clinics.

In March, Pence went even further, signing an omnibus bill that included some of the strictest abortion measures in the country, including a ban on women who wish to end their pregnancy if their fetus has genetic abnormalities, such as Down syndrome. The law also called for prosecuting doctors who provided abortion services to women suspected of wanting to terminate a pregnancy based on genetic problems. A federal judge blocked this law from taking effect last month, saying it was likely unconstitutional.

While reproductive rights groups say they are heartened that the court reversed Patel’s feticide conviction, they disagree with the judges’ decision not to drop the neglect conviction. Yamani Hernandez, the executive director of the National Network of Abortion Funds, issued a statement saying that the court’s new decision does not go far enough to restore full justice. By allowing the prosecutors’ argument that Patel could have prevented the death of her child to stand, Hernandez says, the judges have rejected “both medical science and compassion for a woman who needed medical care, not to be sent to prison.” She argued that ultimately people of color will “bear the brunt of unscientific laws and misplaced moral outrage.”

Patel remains in prison for now, and advocates are continuing to call for her release. Reproaction, a group focused on abortion access and reproductive justice, released a statement calling upon Mike Pence “to be pro-life for real and release her immediately.” They add that the state of Indiana “owes Purvi Patel a profound apology.”

Q&A: The Abortion Battle’s Next Phase

Originally published in The American Prospect on July 12, 2016.
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In a landmark ruling last month, the Supreme Court struck down a package of Texas abortion restrictions known as Targeted Regulation of Abortion Providers (TRAP) laws. Such laws, which have proliferated around the country, typically restrict abortion access by imposing rigid and expensive hospital-style mandates on clinics. The Court’s ruling in the case, known as Whole Woman’s Health v. Hellerstedt, found that the restrictive Texas TRAP laws were unconstitutional because they placed an “undue burden” on women, and marked a major victory for the reproductive rights movement. The American Prospect’s Rachel Cohen spoke with Ilyse Hogue, the president of NARAL Pro-Choice America, which helped lead the challenge to the Texas TRAP laws, to ask about the ruling’s implications for abortion access and for the upcoming election. This is an edited transcript of that conversation.

Rachel Cohen: Now that the Supreme Court has struck down TRAP laws, what’s next on the agenda for anti-choice opponents?

Ilyse Hogue: Over the years, [abortion opponents] have realized that honesty can only get them so far in terms of achieving their goal of ending legal abortion. TRAP laws were really a way to deceive the public, cloaking their efforts around the idea of protecting women’s health. The Supreme Court just eviscerated the anti-choice posturing that TRAP laws are in any way about women’s health.

So one of their favorite tools just got taken away from them. They are reeling, but they are not the type to take their ball and go home. We’re anticipating them pushing forward on a number of different fronts. I think they will step up their harassment at clinics—harassing patients and doctors. And we’ve seen some really insidious things from state legislatures, like recently an effort in Missouri to force clinics to turn over their private medical records to the state. I think we’re going to see anti-choice opponents continue to pour resources into crisis pregnancy centers, which are just another way to deceive women.

How will the reproductive rights movement respond?

We are pushing back on their crisis pregnancy center efforts. In California last year, legislators passed the Reproductive FACT Act, which sets a national model for requiring all crisis pregnancy centers to be really clear with their patients about what they do and don’t do. Other states are looking at California’s law, and I think it’s very much at the top of legislators’ minds for the beginning of 2017.

We’ve also seen states where pro-choice legislators are filing to appeal TRAP laws that are already on the books, like Daylin Leach, a Democratic state senator, in Pennsylvania. And we’re working as a movement to step up litigation and public education to repeal the rest of those laws around the country. Importantly, we’re really moving to a position where we will not just fight anti-choice lies and deception, but where we can actively push for legislation that expands access to abortion. For example, a number of states are looking at medical abortion, and allowing nurse practitioners to provide abortion services. California already has that and other states are looking at it.

On top of this, we’ve got two pieces of federal legislation that are picking up momentum. The Women’s Health Protection Act, which would enforce and protect the right of a woman to decide for herself whether to continue or end a pregnancy, and the Equal Access to Abortion Coverage in Health Insurance Woman Act, which would repeal the Hyde Amendment and ensure that abortion services could be covered under federal health insurance.

NARAL recently released a statement calling the Democratic Party platform “the strongest platform for reproductive freedom we have ever seen.” What’s so significant about it?

The platform is a symbolic statement of values, as well as a navigation tool for what kinds of legislative and public policy remedies there are for the issues that we face. So the fact that it explicitly calls for the repeal of the Hyde Amendment, as well as the Helms Amendment, [which restricts U.S. foreign aid from paying for abortion services] is huge. It acknowledges that there have been discriminatory practices both here and abroad against women who want to control our own reproductive destiny.

The reproductive justice movement deserves an enormous amount of credit for getting us here. Reproductive freedom in the 21st century is acknowledging that we are whole beings. There is not one group of women who gets abortions, and others who go on to be parents. We are just the same women at different times in our lives, making the decisions that are best for us and our families. That the platform takes a step towards acknowledging that is a real testament to the economic and reproductive movements that have come together.

How long will it take Texas and the other states with TRAP-style restrictions to restore abortion access to women?

I’m really glad you asked that question. The answer is too long and it varies state by state. Texas is five times the size of other states, so it will take longer there. But what’s important in answering that question is acknowledging that in the minds of the extreme anti-choice minority, this was a scorched-earth strategy. They always knew they could lose at the Supreme Court, but the amount of damage they were able to do in the meantime, in terms of clinics on the ground, in terms of women who could not access services—that’s significant damage that can never be fully undone.

While it’s important to win, we can’t actually let them gain such ground in the future. We can’t just depend on Supreme Court strategies when it comes to ensuring women access to our basic rights.

That brings us to the election. What role do you expect abortion and reproductive health to play in state and federal races?

We have to be very focused, not only on getting our champion into the White House, but on the down-ballot races, because the harm is coming disproportionately from state legislatures.

We’ve been doing a lot to hold incumbents accountable for the unbelievable amount of times they’ve tried to restrict access to abortion. Their constituents did not elect them to do that, especially at the expense of all the important business that has not gotten done. In both the federal election and for local and state races, we’re making sure voters have the information to hold their officials accountable.

This is a long-term project. We’ve got to make gains in 2016, and come 2020 and 2022, I think we’re going to start seeing some of these state legislatures really shifting on these issues.

In the 2012 election, Todd Akin, a Republican candidate from Missouri lost his race, in large part because of his outrageous comments about “legitimate rape.” Are we seeing similar types of remarks from Republicans this year?

I think people have been trained to be more careful, because when they speak their truth they find themselves at odds with the majority of their constituents. These anti-choice candidates don’t want to talk about their position once they get to a general election because they know they’re on the wrong side, and they don’t win elections if they do. We saw that so clearly in 2014 when Scott Walker, three weeks before his Wisconsin election, ran an ad saying he supports legislation to provide women with more information and to leave the final decision to a woman and her doctor. This is coming from a man who had done more to legislate abortion out of existence than every previous governor before him.

But I think what’s changed between 2012 and 2016 is that back then, the pro-choice movement was able to leverage those off-the-cuff Republican statements. But we’re not going to wait for them now. We’re going straight to the voters to remind them about their officials’ records. We did that really recently in New Hampshire with an  ad campaign targeting Republican Senator Kelly Ayotte, reminding her constituents about all the anti-choice work she spent her time working on, when they didn’t want her to.

What about Donald Trump? He went so far as to say that women should be punished for getting abortions, but then quickly walked it back.

Donald Trump is not playing by the anti-choice or the GOP rulebook in any way, and we know that. One thing that’s super important to me from where I sit at NARAL, but also as an American, and as a mom, is just the way he’s giving voice and credibility to deeply-held misogynistic ideas. I think he will do tremendous damage whether he wins or not, because he has given permission to this very dark underbelly that does not represent what we need to be or what we can be. This is especially true when it comes to his misogyny, and his willingness to dehumanize women. I think particularly because he is facing a woman opponent we’re going to see a new wave of misogynistic activists who feel like they have the high ground.

How has Obama been on reproductive rights? NARAL endorsed Hillary Clinton in January. Might Hillary be different from him?

Obama has been a great backstop against the endless assault by the anti-choice majority in Congress. He has vetoed every bill we’ve needed him to veto in no uncertain terms. But what we need now is a leader in the White House who centralizes these ideas about reproductive freedom as human rights, integral to the health and security of women and families in America. That’s not really been the center of his presidency, and I think it will be the center of Hillary Clinton’s.