New year brings altered landscape for abortion battle
Posted December 17, 2018 6:49 p.m. EST
(CNN) — Those engaged in the battle over abortion in the United States are looking out at the thorny landscape and gearing up for what is on the horizon in 2019.
What they see includes a more conservative US Supreme Court, 85 confirmed judges appointed by President Donald Trump who are reshaping the courts, and legislative bodies -- both state and federal -- transformed by a contentious midterm election.
Experts from four groups dedicated to protecting abortion access spoke with reporters on a conference call Monday afternoon to discuss what lies ahead from their perspective. On the call were representatives from the ACLU Reproductive Freedom Project, the Planned Parenthood Federation of America, the Center for Reproductive Rights and the National Network of Abortion Funds.
They spoke of the more than 400-and-counting restrictions to abortion access that have been enacted at the state level since 2010 and vowed that this is not a time to stop fighting. Even though Roe v. Wade remains on the books, they said, some states forge ahead as if it has been overturned. They also discussed how barriers to abortion access effectively prohibit the procedure for many, especially for low-income populations, people of color and younger people.
"Even today," said Jennifer Davlen, director of the ACLU Reproductive Freedom Project, "the constitutional right to abortion is more theoretical than real."
Court rulings that deny restrictions simply get ignored or appealed, said Julie Rikelman, senior director of litigation at the Center for Reproductive Rights.
She said Louisiana, which has only three abortion clinics, is trying to enact laws to close clinics that are identical to a Texas effort that was struck down by the Supreme Court two years ago in Whole Women's Health v. Hellerstedt.
By instituting "systematic barriers," states are chipping away at what should be protected, said Rachel Sussman, national director of state policy and advocacy at Planned Parenthood Federation of America.
That means the threat to Roe v. Wade remains strong, even as the support of it has grown, they said. Several mentioned a Gallup Poll from the summer that showed nearly two-thirds of Americans -- or 64% -- want to uphold the 1973 Supreme Court decision, including 41% of Republicans.
Sussman pointed out how three states -- Kansas, Wisconsin and Michigan -- kicked out anti-abortion governors. And other states, including New York, Rhode Island and New Mexico, worked to codify protections for abortion access.
"Voters did their jobs at the polls," she said. "Now, we're going to get to work to put their will into action."
The US Supreme Court announced this month that it would not take up a case that might have stopped Medicaid funding to Planned Parenthood. Instead, the court chose to honor two lower court decisions that prohibited cuts to funding in Kansas and Louisiana. The high court's decision was backed by new Justice Brett Kavanaugh, making some wonder whether he might not be as conservative as anticipated.
He and Chief Justice John Roberts appeared to side with the court's liberals, signaling an effort to avoid high-profile abortion-related issues for now.
That said, both justices "likely have serious objections," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. "But such votes seem to be a signal that they would rather avoid contentious, high-profile disputes for now, at least where possible."
A representative from Planned Parenthood insisted Monday that this was a case about Medicaid, not abortion, and that Kavanaugh's "troubling record" showed he couldn't be trusted.
Steven Aden, chief legal officer and legal counsel at Americans United for Life, also refused to take the Supreme Court decision as a sign.
"We're not drawing any conclusions," he said. "There are a number of reasons why the court could have elected not to take the case."
Americans United for Life is a national anti-abortion group that uses legislation, education and litigation to advance its cause. Aden said he's looking ahead with optimism, focusing on the legislative issues and fights that he imagines down the pipeline.
Specifically, he highlighted four model pieces of legislation his organization has written that he hopes will gain traction next year across the country.
The Abortion Reporting Act seeks to require reporting of all abortion-related complications and emergencies, the idea being that the procedure is "practiced in the dark," Aden said. "Only when such a system is in place will we finally be able to unmask the reality of abortion in America."
The Women's Health Defense Act seeks to ban abortions at or after 20 weeks of gestation, except in some cases of medical emergency. "Abortion at 20 weeks is 35 times more dangerous to a woman than carrying to term," he said.
The Prenatal Nondiscrimination Act forbids selective abortions "seeking to target babies," Aden said, based on prenatal diagnostic testing that shows the gender of the baby or a diagnosis such as Down syndrome.
Lastly, Aden pointed to the Unborn Infants Dignity Act, which he said "treats human lives in the womb as just that, human," and requires "cremation or proper burial" of "miscarried, stillborn or aborted infants" and protection from "scientific experimentation."
All of these efforts are precisely what proponents of abortion access are preparing to address. So the two sides can agree on this: No matter what shifts in the landscape, the hot topic of abortion won't cool down in this coming year.