ALISA VON HAGEL & DANIELA MANSBACH REPRODUCTIVE RIGHTS IN THE AGE OF HUMAN RIGHTS - Reproductive Rights in the Age of Human Rights Alisa Von Hagel • Daniela Mansbach Reproductive Rights in the Age of Human Rights Pro-life Politics from Roe to Hobby Lobby Alisa Von Hagel Daniela Mansbach University of Wisconsin University of Wisconsin Superior, WI , USA Superior, WI , USA ISBN 978-1-137-53951-9 ISBN 978-1-137-53952-6 (eBook) DOI 10.1057/978-1-137-53952-6 Library of Congress Control Number: 2016937740 © The Editor(s) (if applicable) and The Author(s) 2016 This work is subject to copyright. 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New York CONTENTS 1 The Reproductive Rights Debate in the Age of Human Rights 1 2 The Fight over Abortion: Fetal Rights in the Post-Roe Era 29 3 Love Them Both: Pro-life Is Pro-women 87 4 Defending the People: Third-Party Interests in the Debate over Reproductive Rights 141 5 Between Conservatism and Libertarianism: Pro-life Strategy After the ACA 183 6 The Future of Reproductive Rights in the Age of Human Rights 213 Court Cases, Appeals, and Briefs 237 Federal Law 239 v vi CONTENTS Proposed Laws 241 State Laws 243 Proposed State Laws 245 Index 247 LIST OF FIGURES Figure 5.1 Chip Bok Editorial Cartoon used with the permission of Chip Bok and Creators Syndicate. All rights reserved. 197 vii LIST OF TABLES Table 1.1 Pro-life arguments in The New York Times and Washington Post 7 Table 1.2 Pro-life websites 9 Table 1.3 Typology for public policy 11 Table 1.4 Federal (proposed and enacted) and state (enacted) legislation, including pro-life and pro-choice policy 12 ix CHAPTER 1 The Reproductive Rights Debate in the Age of Human Rights 1 INTRODUCTION In June 2014, the Supreme Court handed down their ruling in Burwell v. Hobby Lobby, a case involving a challenge to the 2010 law, the Patient Protection and Affordable Care Act (PPACA, which will here-in after be referred to as ACA). For-profi t corporations challenged the require- ment that health insurance plans with prescription coverage include all Food and Drug Administration (FDA)-approved forms of contracep- tion. These corporations argued that this mandate violates the protec- tions of religious liberty established in the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The court ruled in favor of the plaintiffs, fi nding the requirement was a violation of federal law, because it created a substantial burden on the religious beliefs of the corporate entities in question. The ruling opens the possibility for further restrictions on abortion that are based on the protection of individuals’ right to religious liberty. Thus, although the case focused specifi cally on the employer mandate, many in the pro- life movement view this ruling as a victory in their struggle to limit—and eventually eliminate—the right to abortion. The debate over abortion has always included discussion of the rights of third-party actors who are secondary in the procedure itself; the right of medical professionals to refuse to participate in abortion or abortion- related services had been established since the 1970s. Specifi cally, the Church Amendment was adopted in 1973, prohibiting government © The Editor(s) (if applicable) and The Author(s) 2016 1 A. Von Hagel, D. Mansbach, Reproductive Rights in the Age of Human Rights, DOI 10.1057/978-1-137-53952-6_1 2 REPRODUCTIVE RIGHTS IN THE AGE OF HUMAN RIGHTS offi cials from requiring physicians to perform abortion or sterilization based upon moral or religious objections to the practice. Further, restrictions on public funding for abortion were also fi rst enacted during the 1970s, with the fi rst prohibition on government funding for abortion passed in 1976. The Hyde Amendment, attached to the 1976 spending bill for the Departments of Labor, Health and Human Services, and Education, pro- hibited funding for abortion, primarily affecting Medicaid programming. Both conscience clauses and funding restrictions on abortion continue to be enacted at both the federal and state levels. Furthermore, both types of policies have greatly expanded over time in terms of the effect and breadth of the protections and restrictions imposed. These two types of public policies have proven to be the most effective means for restricting or limiting access to abortion, particularly at the fed- eral level. Nevertheless, until the case of Hobby Lobby , the pro-life strategy rarely focused on the rights of third-party actors. Prior to the Hobby Lobby case, the pro-life movement centered its attention on the rights of the fetus and the rights of women, the two subjects involved in the abortion procedure. In advocating for fetal rights, the primary focus and intent of the pro-life movement has been to eliminate access to abortion and secure the overturning of the decision in Roe v. Wade . This strategy, based upon the belief in the sanctity of life and the assumption that life begins at the moment of fertilization, represented the central focus of the move- ment until the mid-1990s. The failure to secure this goal—the complete elimination of the right to abortion—as well as the inability to produce any substantial change in public opinion regarding abortion led to the adoption of a new strategy. This new strategy focuses on women’s rights and well-being, arguing that abortion physically and emotionally harms women. As a result, this strategy focuses on limiting access to abortion rather than eliminating it altogether. The development of the women- centered strategy has demonstrated that the pro-life movement is adaptable to changing circumstances and contexts, using new arguments and strategies to promote their cause. The passage of the ACA in 2010, and the Hobby Lobby ruling in 2014, led to the adoption of new strategy by the pro-life movement, which complements the fetus-centered and women-centered strategies. This latest strategy advocates for the rights of third-party actors such as employers, with a special focus on the argument of religious liberty. As such, the ruling in Hobby Lobby introduces two main changes into the ear- lier pro-life discourse and its related public policy. First, the ruling shifted THE REPRODUCTIVE RIGHTS DEBATE IN THE AGE OF HUMAN RIGHTS 3 attention from rights that were traditionally at the heart of the debate over reproductive choices—such as the right to life, women’s liberty and autonomy, and reproductive rights—to religious liberty. Specifi cally, both the fetus- centered and women-centered discourses aimed to change peo- ple’s opinion on abortion through emphasis on the sanctity of life as well as the harm abortion causes women. The focus on freedom of religion, however, shifts the argument away from the debate over the meaning and implications of abortion; in this case, supporting the pro-life movement does not require people to oppose abortion, only to agree that individuals have the right to freedom of religion, or, more generally, freedom from government control. In addition to the changing argument, the focus on religious liberty also represents a shift in pro-life strategy; while the movement has historically been driven by religious adherents who believe in the sanctity of life because of biblical dictates, the movement as a whole has worked to minimize the use of religious arguments, particularly in their public campaigns and fetus-centered discourse. Including religious liberty as a right that is violated during the course of an abortion adds to the issues that are part of the debate over reproductive rights, while also allowing the pro-life movement to further distinguish their work from that of the pro-choice movement. Second, this ruling introduces a new set of actors in need of protection in the practice of abortion. Initially, the pro-life movement focused solely on the protection of the fetus, placing the movement in opposition to the pro-choice movement, which advocates for women’s reproductive choice and autonomy. This fetus-centered discourse often defi ned women as the source of the threat, situating them in direct confl ict with the fetus that needs to be saved. Through subsuming women’s rights and health within their discourse in the 1990s, the pro-life movement was able to address the critique of pro-choice activists, as well as others who demanded that women’s complex decision-making process is taken seriously. With the Hobby Lobby ruling, the pro-life movement expands the participants they will protect, adding employers to the other third party actors they aim to protect.