Will Rejecting Woman-Protective Justifications for Anti-Abortion Laws Result in an Increase of Harassment and Violence?

Drexel University Thomas R. Kline School of Law

From the SelectedWorks of David S Cohen

November, 2016

Will Rejecting Woman-Protective Justifications for Anti-Abortion Laws Result in an Increase of Harassment and Violence? . David S Cohen

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Will Rejecting Woman-Protective Justifications for Anti-Abortion Laws Result in an Increase of Harassment and Violence?

David S. Cohen1

For abortion rights supporters, the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt2 is nothing but wonderful news. After years of legislative encroachments on the right to choose, the Court’s opinion sent a strong message that legislatures cannot impose a heavy burden on the right to abortion without having support from evidence-based medicine.

This is an unequivocal victory for reproductive rights.

That does not mean, however, that the future will be all rosy for abortion provision because of this decision. Rather, this decision poses a possible risk for abortion provider and clinic safety. In the past, abortion restrictions have been justified on two different theories - protecting the fetus and protecting the woman. In Whole Woman’s Health, the Supreme Court erected a huge barrier in the way of legislatures seeking to restrict abortion in order to protect the woman. In response, anti-abortion organizations and legislatures may be forced to abandon this justification and rely exclusively on fetus-protection. Historically, there has been a connection between fetus-protection justifications for abortion restrictions and extreme violence and harassment against abortion providers and clinics. This article explores this connection and argues that Whole Woman’s Health may increase this risk going forward.

At least since Roe v. Wade,3 there have been two different rationales put forth to support anti-abortion legislation: protecting the fetus and protecting the pregnant woman. The Supreme

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Court in Roe recognized as much when it explained what reasons a state could put forth to restrict the constitutionally protected right to terminate a pregnancy.

The Court first explained that states could restrict abortion in order to protect the pregnant woman. As the Court wrote: “The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.”4 The Court then explained that states could have another interest in restricting abortion - protecting the fetus. The Court wrote that states could have an interest “in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life.”5 According to the Court, this is an interest “beyond the protection of the pregnant woman alone.”6

As Reva Segal has studied extensively,7 since Roe, these two rationales to support anti- abortion legislation have varied in importance. Generally speaking, through the early 2000s, fetus-protective arguments dominated the anti-abortion movement. Then, about that time, there was a strategic shift to arguments in favor of restricting abortion in order to protect the pregnant woman.

Siegel’s scholarship has detailed this shift occurring in the early 2000s, with the seeds being planted in the late 1990s. As Siegel explained, prior to the shift, the dominant view within the anti-abortion movement was that “a human being is formed at conception of equal moral value to born persons; there is (virtually) no justification for ending that life; hence abortion is

Electronic copy available at: http://ssrn.com/abstract=2839460 PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE murder.”8 Legislation proposed by the movement had as its goal to protect this fetal life and was, for the most part, not concerned with the pregnant woman’s welfare. Siegel writes that while this view was dominant, “it was a common complaint of those defending the abortion right that their opponents argued the morality and constitutionality of abortion in ways that completely effaced women.”9

In the late 1990s, the anti-abortion movement re-evaluated its strategy and developed a new strategy based on the other compelling interested noted in Roe v. Wade - protecting women.

Siegel described a movement reformulating its message to appeal to those who care about women. She argued that, to reach these voters, the movement “produced a woman-protective antiabortion argument that mixes new ideas about women’s rights with some very old ideas about women’s roles.”10

At about this time, one of the anti-abortion movement’s thought leaders, David Reardon, urged the movement to take up the mantle of women’s rights as a cover for fetal protection and to show “compassion for women” that the public had not previously believed the movement had.

He explained that movement should “always—ALWAYS—place our arguments for the unborn in the middle of a pro-woman sandwich. Our compassion for the woman must be voiced both first and last in all our arguments, and in a manner which shows that our concern for women is a primary and integral part of our opposition to abortion.”11

In her work on this transformation of the movement, Siegel claimed that this logic, this new woman-protective argument, had “spread throughout the antiabortion movement” by the

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE mid-2000s. Anti-abortion efforts in the 2000s and 2010s show that Siegel is correct about this shift. The Supreme Court’s 2007 decision in Gonzales v. Carhart12 prominently features this rationale. In that case, the Court upheld the federal law banning “partial birth abortions,” reasoning that the law protects women from regret about the procedure.13

The record number of anti-abortion restrictions that have been passed by state legislators since also fit within this shift, as most of them have been justified under the woman-protective rationale. For instance, a large number of states have passed laws requiring counseling before an abortion that either forces a woman to have and view an ultrasound or requires a medical professional to inform a woman having an abortion that she faces an increased risk of breast cancer, depression, and/or suicide (even though evidence-based medicine does not support these claims). These laws are not about protecting the fetus but rather are about, as the anti-abortion movement has argued, protecting women from being uninformed about their abortion.14

The two provisions at issue in Whole Woman’s Health also are representative of this trend. In 2013, Texas passed a law that required doctors who perform abortions to have admitting privileges at a hospital within thirty miles of the abortion clinic and abortion clinics to meet the exacting requirements of ambulatory surgical centers. The rationale behind these requirements was not to protect the fetus. After all, if doctors and clinics met the requirements, they can still perform abortions and end the life of the fetus. Rather, the stated rationale from the state of Texas and the abortion opponents supporting it was to protect women from medical practitioners who were not qualified (admitting privilege requirement) and facilities that were not safe (ambulatory surgical center requirement). Texas pressed this argument repeatedly before

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE the Supreme Court, arguing over and over that the two laws were meant to reduce abortion complications for women.15 In other words, the goal was to protect women, not to protect fetuses.

In a detailed opinion, the Supreme Court rejected Texas’ woman-protective argument.

The Court insisted that, if the state of Texas really wanted to protect women, it had to have medical evidence to support its claims. The Court concluded, with respect to the admitting privileges requirement, that there was “nothing in Texas’ record evidence that shows that, compared to prior law [], the new law advanced Texas’ legitimate interest in protecting women’s health.”16 Similarly, for the ambulatory surgical center requirement, the Court found

“considerable evidence in the record” that “the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary.”17

It is easy to envision this reasoning being broadened to apply to other states’ anti-abortion laws that are passed ostensibly to protect women. These laws must now be based on medical evidence that proves that women are actually benefitted. As a general matter, the anti-abortion regulations that have been passed in the name of protecting women have no research to support them which means Whole Woman’s Health’s rationale should lead to a reversal of the trend

Seigel noted. Without evidence to support women-protective arguments, the anti-abortion movement will now likely move back to fetal-protective arguments.

If the movement does make this shift, it will be building on a change that was apparent in the Planned Parenthood smear videos released in the summer of 2015.18 In those highly

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE manipulated and misleading videos, the Center for Medical Progress claimed that Planned

Parenthood was illegally selling fetal tissue and manipulating the abortion procedure in order to produce better fetal tissue samples. The outrage CMP intended to spark (and did spark among anti-abortion politicians) was not about protecting women from unscrupulous abortion practices.

Rather, the outrage was about protecting fetuses from being mistreated and sold. These videos pre-date the Supreme Court decision by almost a year, but they are consistent with the shift the decision signals.

This shift back to fetus-protective justifications should help reduce sham legislative attempts to restrict abortion; however, it poses a distinct risk of increasing the incidence of violence and harassment of abortion providers. Over the past several decades, when the anti- abortion movement has focused on fetus-protection as its justification for restricting abortion, violence and harassment of abortion providers has been high; conversely, when it has focued on protecting women, violence and harassment have dropped.

The changes in the justifications used by the anti-abortion movement as sketched above -

- fetus-protective through the late 1990s; woman-protective from the early 2000s until 2015; fetus-protective starting again in mid-2015 -- very closely track the trends in extreme acts of anti-abortion violence and harassment over the years. The 1980s and 1990s, when fetus- protective arguments were at the forefront, saw some of the most extreme acts of violence and harassment. According to the National Abortion Federation, the leading source for anti-abortion violence statistics, through 2001, there had been 7 murders of abortion providers, 17 attempted

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE murders, 41 bombings, 165 incidences of arson, 82 attempted bombings or arsons, 100 butyric acid attacks, 351 death threats, and 565 bomb threats.19

The logic behind this violence is not hard to surmise. If the ostensible focus of the anti- abortion movement is to protect the helpless fetus from being murdered, then some extremists within the movement are going to see their mission as protecting the fetus at all costs. As Carol

Mason has explained, for the extremists, there is a “total identification with the baby,” so that they feel they must take extreme measures to not only save the fetus, but save themselves.20

Violence, threats, terrorism, and harassment are all geared toward doing just that -- stopping abortion providers and clinics in order to stop the murder and save the fetus.

This logic does not have the same resonance when the anti-abortion movement is focused on protecting women. In fact, part of the reason the movement shifted to woman-protective arguments was because of this violence. Jack Willke, the head of the National Right to Life

Committee, explained this clearly based on market research the movement conducted. “The public felt that pro-life people were not compassionate to women and that we were only ‘fetus loves,’ who abandoned the mother after the birth. They felt that we were violent, that we burned down clinics and shot abortionists.” The solution, according to Willke, was “to convince the public we were compassionate to women.”21

This shift corresponds to a drastic change in the statistics with respect to extreme violence and harassment. After the anthrax threats following September 11, 2001 (over 500 received by abortion providers), anti-abortion violence dropped precipitously. Arsons,

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE bombings, shootings, threats never fully disappeared, but the numbers are drastically lower than the pre-2001 numbers.22 Notably, the one murder that took place in this time period -- the assassination of George Tiller in Wichita, Kansas -- occurred against a provider closely scrutinized by the anti-abortion movement for harming fetuses throughout all stages of pregnancy.23 The movement’s new focus on protecting women, while very effective in generating policy reform from anti-abortion legislatures, did not generate the same amount of extreme violence and harassment.

Whether by a well-orchestrated strategy or just the acts of one rogue operative, this changed in mid-2015 with the release of the anti-Planned Parenthood videos that focused once again on the fetus. Almost immediately, there was a huge spike in violence. In 2014, there was one reported death threat against an abortion provider; in 2015, there were 94 direct threats of harm against providers. In 2015, there were also four arsons and 67 acts of vandalism, some extreme enough to shut down clinics during repairs.24 The worst violence occurred on

November 27, when three people were murdered and nine others shot at the Planned Parenthood affiliate in Colorado Springs.25 During the attack, the gunman shouted “no more baby parts.”

Tellingly, he did not shout “no more harming women.”

To be entirely clear, this is not an argument of causation, but rather one of overlapping trends that have a very logical connection. When anti-abortion extremists are focused on protecting the fetus from being, as they see it, murdered, they will resort to violence to protect it.

However, when they are focused on protecting women, they are not willing to go to the same

PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE extremes. Stated differently, women are worth protecting, but not at all costs. Fetuses, on the other hand, are worth protecting at all costs.

These overlapping trends -- of fetus-protection arguments and anti-abortion violence and harassment -- are one concern that abortion advocates should have following the Whole

Woman’s Health decision. If the anti-abortion movement takes its cue from the Supreme Court and shifts away from woman-protection and back towards fetus-protection, the consequences for the safety of abortion providers and clinics could be severe.

1 Professor of Law, Drexel University Thomas R. Kline School of Law. Conflicts of interest: none. 2 136 S. Ct. 2292 (2016). 3 410 U.S. 113 (1973). 4 Id. at 150. 5 Id. 6 Id. 7 See, e.g., Reva B. Siegel, The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 Duke L.J. 1641 (2008); Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991. 8 Siegel, The New Politics, supra note 6, at 1014. 9 Id. 10 Id. at 993. 11 Id. at 1018 (quoting David C. Reardon, Making Abortion Rare: A Healing Strategy for a Divided Nation (1996)). 12 550 U.S. 124 (2007). 13 Id. at 159-60. 14 Elizabeth Nash et al., Laws Affecting Reproductive Health and Rights: 2015 State Policy Review, available at https://www.guttmacher.org/laws-affecting-reproductive-health-and-rights-2015-state-policy-review 15 136 S. Ct. at 2300-01. 16 Id. at 2311. 17 Id. at 2315. 18 Jackie Calmes, Planned Parenthood Videos Were Altered, Analysis Finds, N.Y. Times, Aug. 27, 2015, at A11. 19 Nat’l Abortion Federation, 2015 NAF Violence and Disruption Statistics, available at http://5aa1b2xfmfh2e2mk03kk8rsx.wpengine.netdna-cdn.com/wp-content/uploads/2015-NAF-Violence-Disruption- Stats.pdf 20 Carol Mason, Killing for Life: The Apocalyptic Narrative of Pro-life Politics 80 (2002). 21 Siegel, The Right’s Reasons, supra note 6, at 1670-71 (citing J.C. Willke, Life Issues Institute Is Celebrating Ten Years With a New Home, Life Issues Connector, Feb. 2001, at 1). 22 Nat’l Abortion Federation, supra note 18. 23 Stephen Singular, The Wichita Divide: The Murder of Dr. George Tiller and the Battle over Abortion (2011). 24 Nat’l Abortion Federation, supra note 18. 25 Richard Fausset, For Robert Dear, Religion and Rage Before Planned Parenthood Attack, N.Y. Times, Dec. 1, 2015, at A1.