Joshua C. Wilson - The New States of Abortion Politics

Stanford University Press

Stanford, California

2016 by the Board of Trustees of the Leland Stanford Junior University.

All rights reserved.

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Printed in the United States of America on acid-free, archival-quality paper

Library of Congress Cataloging-in-Publication Data

Wilson, Joshua C., author.

The new states of abortion politics / Joshua C. Wilson. Stanford, California : Stanford Briefs, an imprint of Stanford University Press, 2016.

LCCN 2016014109 (print) | LCCN 2016014481 (ebook) | ISBN 9780804792028 (pbk. : alk. paper) | ISBN 9781503600539 (electronic)

Subjects: LCSH: AbortionLaw and legislationUnited States. | AbortionGovernment policyUnited States. | AbortionPolitical aspectsUnited States. | Pro-life movementUnited States.

LCC KF3771 .W55 2016 (print) | LCC KF3771 (ebook) | DDC 342.7308/4dc 3

LC record available at http://lccn.loc.gov/2016014109

Typeset by Classic Typography in 10/13 Adobe Garamond

JOSHUA C. WILSON

An Imprint of Stanford University Press
Stanford, California

After nearly two decades of being upstaged by other political and Culture War issues, abortion politics have clearly returned to national prominence. As Daniel Becker, a leader with the National Personhood Alliance, which is dedicated to fighting abortion and related pro-life issues, recently stated in an interview, I dont think weve seen a more critical election cycle [than 2016].... Everything is coming to a head. While various factors have contributed to the national resurgence of abortion and the current tension over it, two events in 2015 originating from the fringes of the conflict loom large in defining the popular understanding of contemporary abortion politics.

In July 2015 a group called the Center for Medical Progress (CMP) emerged on the national scene with the release of a series of edited amateur undercover videos claiming to show that Planned Parenthood engages in the callous and illegal sale of aborted fetal tissue. The videos, which include secretly recorded conversations and images of fetal tissue, came to dominate the discussion of abortion and led to federal congressional hearings on the matter, ongoing state and federal fights to defund Planned Parenthood, and a near government shutdown. Not surprisingly, the videos have also resulted in state and federal lawsuits regarding the legality of the undercover recordings and allegations that CMP engaged in racketeering, fraud, invasion of privacy, and trespassing.

In November 2015 a lone gunman killed three people and wounded nine others in an hours-long standoff with police at a Colorado Planned Parenthood clinic. The gunman, Robert Lewis Dear, is believed to have referenced the CMP videos by saying, No more baby parts, after being taken into police custody. Less than two months later, in response to the attack, there was talk in Colorado of introducing a state bill to increase penalties for a person convicted of blocking access to health services that include abortions.

These events resonate with the contentious forms the abortion conflict took in the 1980s and 1990s. It was during this time that media coverage of abortion politics was filled with clinic bombings, the murder of abortion providers, sizeable coordinated acts of civil disobedience, and related physical and legal fights between activists. While the rates of large-scale protesting and clinic-related violence dropped off precipitously over the course of the 1990s and into the 2000s, the events of 2015 seem to suggest that they never waned. In fact the CMP videos and the Colorado Springs clinic shooting distort reality and distract from the more significantin terms of broader policyfight over abortion. They distort reality because of their inherent drama, and they distract because the most important disputes affecting present and future access to abortion have been principally taking place out of public view for years.

As the clinic-front activism that publicly defined abortion politics in the 1980s and early 1990s fell into decline, a well-organized and sophisticated set of cause lawyers and related political actors stepped into the vacuum. In doing so they redefined abortion politics. Both sides developed their legal and political resources over time, but earlier in this conflict abortion-rights activists, through standing national organizations like Planned Parenthood, had greater access to such resources. The same was not true for Antiabortion advocates who faced legal problems stemming from their activism, for example, were represented in an ad hoc fashion. Simply put, the movement did not have ready and reliable access to significant numbers of well-organized, specifically dedicated, full-time lawyers.

Steps were taken during the 1990s and into the early 2000s to consolidate many of the leading Christian lawyers into a superbly organized and potent institutional structure. The effect was not only to provide activists with better legal resources but also to change the dominant form and personnel engaged in antiabortion activism. These new well-established and well-organized activist lawyers have been able to challenge abortion, not in front of clinics but in front of judges. The antiabortion movement correspondingly moved away from a seemingly doomed frontal assault on Roe v. Wade (1973) and the unpopular clinic-front activism of the 1980s and 1990s and adopted an incremental strategy of fighting abortion at lower jurisdictional and administrative levels. As such the politics of abortion have largely shifted to increasingly restricting abortion access as opposed to directly ending it all at once. With few exceptions this process starts in state legislatures situated in the more socially conservative regions of the country, and it continues in courtrooms as clinics and their supporting legal organizations immediately challenge the constitutionality of these laws. The process then starts anew as the actors on each side of the conflict work within the constraints established or reaffirmed by the court rulings.

The contemporary form of abortion politics now positions antiabortion activists on the offensive, where they get to experiment with the limits of abortion policy in friendly state forums and dictate the parameters of the conflict. This requires reproductive-rights advocates to respond and play defense in the courts. The former plays a long game, hoping that one day a case will reach and survive challenge in what has predominantly been an increasingly conservative US Supreme Court, potentially changing the abortion policy landscape for the entire country. The latter reacts, fighting a war of attrition, hoping to stave off another attack aimed at making the process of obtaining an abortion more costly and difficult, forcibly closing more clinics, requiring providers to present factually dubious or otherwise contested materials to patients, or stripping the ability to perform another form of abortion. This form of abortion politics, to invoke the activist quoted earlier, is coming to a head with the Supreme Courts hearing of Whole Womans Health v. Hellerstedt (2016).