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 David S Cohen Available at: https://works.bepress.com/david_cohen/14/ PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE Will Rejecting Woman-Protective Justifications for Anti-Abortion Laws Result in an Increase of Harassment and Violence?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 The Supreme 1 Electronic copy available at: http://ssrn.com/abstract=2839460 PRE-SUBMISSION DRAFT - DO NOT CITE - PRE-SUBMISSION DRAFT - DO NOT CITE Court in Roe recognized as much when it explained what reasons a state could put forth to restrict the constitutionally protected right to terminate a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 2 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 3 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 4 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 5 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.