Imani Gandy (ABL)

I wrote this post about twenty-week abortion bans for RH Reality Check, and it explains what a circuit split is, so if you ever wanted to know what that means, you should read this! But you’ll have to click outside the blog which I know causes some of you great consternation. You have been thusly warned. Also, hello everyone! -ABLxx

In the “war on women,” 20-week abortion bans have become a rallying point for both pro- and anti-choice camps alike. While Texas’ recently-enacted law, which among other things bans abortions after 20 weeks, may have garnered most of the media attention in recent weeks, so far 13 states have passed similar bans, and three states have passed even more restrictive laws, prohibiting abortions as early as six weeks’ gestation. Nevertheless, these 20-week abortion bans have been gaining traction.

Much has been written about the politics behind these laws—especially the false claims that they are designed to protect women—but so far, there has been relatively little coverage of the anti-choice litigation strategy in relation to these bans. For instance, how do anti-choice campaigners intend to persuade the Supreme Court to reverse Roe v. Wade? Of all the various state anti-abortion laws, which one is most likely to be used as the test case at the national level?

The Supreme Court won’t review its long-standing abortion jurisprudence unless it has to. Given the controversial nature of abortion, a simple appeal from a state to clarify abortion law probably won’t prompt the Court to act. (The Oklahoma supreme court recently tried this tactic when it struck down Oklahoma’s ultrasound law and practically begged the U.S. Supreme Court to hear the case; the Court didn’t bite.) What will prompt the Supreme Court to act is a conflict between the laws that apply in one circuit and the laws that apply in another.

“Circuit” is a fancy legal term for a group of states. The country is split into eleven circuits, plus the D.C. Circuit, with one federal appeals court in charge of setting the law for each of the circuits. If one circuit court sets law that is different than the law that applies in another circuit, then a legal mess—or, as it is sometimes called, a “circuit split”—results. And since the Supreme Court likes to have laws that bind the entire country, it will intervene to resolve the circuit split.

The push for 20-week abortion bans is part of a national strategy implemented by anti-choice advocates to create exactly the sort of legal mess that will force the Supreme Court to reconsider Roe v. Wade and Planned Parenthood v. Casey, and to revisit the viability standard that has served as the constitutional foundation for abortion rights for 40 years.

An analysis by RH Reality Check suggests that the strategy deployed by anti-choicers is deeply subversive. It capitalizes on personal feelings and anti-abortion hostilities by enticing judges and legislatures to abandon empirical science in favor of biased, agenda-driven science or, as it is sometimes called, “junk science.” Proponents of junk science, which has become a cottage industry among anti-abortion advocates, confuse the issue of fetal viability, invent claims about fetuses feeling pain (or masturbating in utero), and call into question established medical standards.

The strategy is a smart one, to be sure. Anti-choicers understand that once junk science has been incorporated into legislation, courts are not inclined to question those scientific findings—no matter how agenda-driven they are—and will simply apply the law to those “facts.” In cases when junk science is presented to a court, a judge (or justice) hostile to abortion rights requires only the flimsiest reasoning to ground their legal opinion in fact, even if those “facts” are anything but factual.

It is hard to fathom that any court would find these pernicious bans constitutional. After all, the Constitution guarantees a right to choose abortion up until the point of fetal viability, which occurs well after 20 weeks’ gestation. Nevertheless, anti-choice advocates are alarmingly optimistic about their chances in making these bans stick—at least, some are.

The 20-week abortion ban enthusiasts are confident that the key to a reversal of Roe v. Wade rests with Justice Anthony Kennedy. In his majority opinion in Gonzales v. Carhart, Kennedy made it clear that he finds certain abortion procedures to be terrible, and that he is very concerned about the mental state of women who would dare to seek them. What about the bonds of love between mother and child, he wonders in his opinion. What if women come to regret their choice to abort the “infant life they once created and sustained”?

Since Anthony Kennedy’s 2003 opinion in Gonzales, anti-choice litigators and advocates have smartly tailored their litigation strategy to suit Kennedy’s sensibilities. Drawing upon the junk science that anti-abortion advocates like David Reardon and frequent co-authors J.M. Thorp and Priscilla K. Coleman have been developing for decades, anti-choice advocates are weaving junk science into the very fabric of state-level 20-week abortion bans.

[read the rest at RH Reality Check]

20-Week Abortion Bans and the Pathway to the Supreme CourtPost + Comments (36)

Last week, the North Carolina GOP attached a bunch of abortion restrictions to an anti-sharia law. The outrage was such that Governor Pat McCrory vowed to veto it unless significant changes were made to the bill. Hooray!

Except, no — not really.

Even though it appears that Governor McCrory will keep his word and veto the sharia law/abortion hybrid bill (HB 695), he will likely sign a new motorcycle safety/abortion hybrid bill should it pass the House and Senate and reach his desk. Yes, you read correctly. Stop rubbing your eyes.

Early this morning, the North Carolina GOP (the House Judiciary Committee, to be precise) added sweeping abortion restrictions to a bill — SB353 — that was approved by the Senate in April and which was supposed to increase fines and penalties for drivers who endanger motorcyclists on the road. So sneaky were the Republicans in this maneuver that some Democrats in the House didn’t know what the hell was happening until a few minutes before the committee meeting began.

Sneaking bills through the legislature without public notice! That’s the North Carolina way, apparently.

So now in addition to protecting motorcyclists, SB 353 bans telemedicine abortion, places burdensome regulations on abortion clinics, and will force many clinics to close.

How does McCrory feel about the new abortion/motorcycle hybrid bill?

He’s fine with it, of course. After all, it’s a different bill — sort of — than the one he promised to veto. No fuss, no muss!

Robin Marty at RH Reality Check has more:

Republican North Carolina Gov. Pat McCrory announced Wednesday morning that unless significant changes were made to HB 695, a bill ostensibly created to bar Sharia law in the state but which would greatly reduce access to safe, legal abortion in North Carolina, he would veto it. However, within a few hours of that announcement a new bill, SB 353, was reviewed by a house subcommittee, and it was rewritten to add nearly identical anti-choice amendments as those found in HB 695. Unlike the previous bill, SB 353 has the approval of the governor.

As originally written, SB 353 is a motorcycle safety act that would increase fines and penalties for drivers who endanger motorcyclists on the road. The bill had remained dormant for much of the legislative session until Judiciary Subcommittee B was informed it would be on the calendar Wednesday morning. Not all of the committee members were informed prior to the meeting that the bill had been amended to add modified versions of abortion restrictions that were inserted earlier this month into HB 695.

(read the rest)

The war on women is getting downright absurd, wouldn’t you say?

Oy.

[via RH Reality Check; Think Progress]

#MotorcycleVagina: It’s a Thing Happening in North CarolinaPost + Comments (89)

Texas Senator Wendy Davis is currently on hour 4 of her 13 hour filibuster of #SB5, a pernicious bill that will result in all but five clinics being closed in Texas, and will ban abortion after 20 weeks. (You can watch the livestream here.)

For the past several days, there have been protests at the Capitol, and Texas anti-choicers have been doing everything they can in order to ram SB5 through the legislature. The bill passed the House at around 3 am on Monday morning (to loud screams of “SHAME! SHAME!”) Then yesterday, Lieutenant Governor Dewhurst attempted to leverage the death of the father of one of his colleagues in order to suspend the 24-hour rule in the Senate and bring the bill to an immediate vote. (He failed.)

Senator Davis’s filibuster and the repro rights fight in Texas hasn’t been getting much play in the media, so if you want to read up on what’s going on, check RH Reality Check‘s coverage here. RHRC’s Andrea Grimes has been a warrior on the ground. Another repro rights warrior, Jessica Luther of Flyover Feminism has a post detailing what you can do to stand with Texas women even if you don’t live in Texas. (You can read that post here.)

Also, President and Editor-in-Chief of RHRC, Jodi Jacobson, is organizing a massive food delivery to all the men and women who are camping out at the capital to show their support for Wendy Davis. On Sunday, RHRC provided more than $800 worth of food to more than 1,000 people. We expect the crowd to be even larger tonight.

If you want to donate to that effort, click here.

Go, Wendy, go!

P.S. If you’re thinking about typing “Women should just move out of Texas!” please don’t.

*** You can follow Jessica Luther on Twitter — @scaTX. you can follow Andrea Grimes on Twitter — @andreagrimes. You can also follow the hashtags #TxLege, #SB5, #HB16, and #HB60 for the most up-to-date news.

Senator Wendy Davis is Filibustering Anti-Choice Legislation in TexasPost + Comments (142)

Via RH Reality Check:

The Inter-American Court of Human Rights in San Jose, Costa Rica, the highest human rights court in the Americas, handed down Thursday a decision ordering the government of El Salvador to provide Beatriz with life-saving care. It ordered the state to provide the measures necessary to protect her life, health, and well-being, as well as refrain from interfering with the actions the doctors consider appropriate.

Beatriz, a 22-year-old woman who suffers from several life-threatening health problems, is 25 weeks pregnant with an anencephalic fetus, meaning it is missing part of its brain and will likely die at birth or shortly thereafter.  Her doctors recommended she receive an abortion, and she requested one on April 11. However, abortion is illegal under all circumstances in El Salvador.

The spokesperson for the Inter-American Court, Paola Ugaz, explained that the case is not going through formal channels; rather, the Inter-American Commission on Human Rights asked the judges to issues an immediate order to the Salvadoran government to avoid irreparable harm to Beatriz. This is the first case on abortion that the court has considered. The government has until June 7 to present a first report to the court on its compliance with the measures ordered.

~snip~

According to the Center for Justice and International Law (CEJIL), the court’s decisions carry a mandatory requirement for governmental compliance since El Salvador is a member state of the Organization of American States and signed the American Convention on Human Rights, which includes acceptance of the court’s competency.

This is good news, but obviously, we’ll have to wait and see what happens, since the government has until June 7 to report on its compliance with the order.

[via RH Reality Check]

Update on #SaveBeatriz: El Salvador Ordered to Provide Beatriz Access to Life-Saving CarePost + Comments (27)