Abortion, Every Day (12.18.23)

Most Tennessee Republicans & evangelicals want a less restrictive abortion ban

Dec 18, 2023

Criminalizing Care

If you’re a regular reader, you know I’ve been following Brittany Watts’ case really closely—and that it’s followed all of the familiar patterns in the criminalization of pregnancy outcomes.

For example, Watts—who is being prosecuted for ‘abuse of a corpse’ in Ohio because of how she handled her miscarriage—was turned in by a health care provider. Research shows that’s often how these cases start. Watts is Black, and we know that women of color are disproportionately targeted over their pregnancy outcomes. Prosecutors are also using a charge that’s seemingly unrelated to her miscarriage, ‘abuse of a corpse’, in the same way that law enforcement does in so many of these cases. (If/When/How’s most recent report has more on this.)

This weekend, even more information has come out about how Watts was targeted; somehow it’s even worse than what we already knew. Both The Washington Post and the Associated Press have published pieces with details that are just absolutely stomach-churning. Read them both if you can, but here’s the short version:

Watts was 21 weeks pregnant when her doctor told her that her water had broken prematurely and that the fetus wouldn’t survive. He told her to go to the hospital for care because there was a “significant risk” to her health and life. When Watts went to the religiously-affiliated Mercy Health-St. Joseph’s Hospital, she thought she would be induced. Instead, WaPo reports that doctors and hospital officials spent hours debating the “ethics” of giving her care. One doctor wrote, “My recommendation instead of waiting until mom is on death’s door before proceeding with treatment, [is] to deliver this baby.”

Watts’ lawyer Traci Timko says the delay “was the fear of, is this going to constitute an abortion and are we able to do that.” After waiting for eight hours, Watts decided to go home, where she miscarried into her toilet. Content warning: Descriptions of pregnancy loss. Watts tried to scoop out some of what was in the toilet, which was “a mess of blood, stool, tissue and other bodily fluid,” and placed it outside.

When Watts went back to the hospital, she recounted all of this to a nurse. That nurse then called 911 to say that there was a “baby…in a bucket” in Watts’ backyard. Incredibly, when the police came to interview Watts in her hospital room, that same nurse rubbed her shoulders and comforted her as if she hadn’t just made a call that could ruin Watts’ life. When WaPo called Mercy Health for comment, a spokesperson declined to comment “out of respect for patient privacy.” Seriously.

So in short: Watts, in the middle of a health crisis, tried to get help at a religious hospital and couldn’t. Then that hospital turned her into police for going home to have a miscarriage. From Timko:

“I just want to know what (the prosecutor) thinks she should have done. If we are going to require people to collect and bring used menstrual products to hospitals so that they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel.”

And that’s the thing: there is no legal standard for how to handle a miscarriage. Nor should there be! This is not something we want law enforcement or the state involved in. Yet because of misogyny, racism and fetal personhood laws and culture, Watts was mistreated and tortured by the people meant to care for her.

Watts says, “I am grieving the loss of my baby. I feel anger, frustration and, at times, shameful.” And as is so often the case, Ohio prosecutors and law enforcement figured that no one would care: that’s why they go after the most marginalized among us.

In the States

Some better news out of Ohio: With Issue 1 enacted, we’re getting closer to the state’s abortion ban being permanently thrown out. On Friday, the Ohio Supreme Court dismissed the state’s challenge to a ruling that blocked enforcement of the ban—with justices saying it was “due to a change in the law.” That means that the case goes back to a lower court, where abortion clinics are asking a judge to throw out the ban entirely now that abortion rights are protected in the state constitution.

I couldn’t wait to bring you this news: There is some really interesting polling out of Tennessee this week, where voters overwhelmingly want to see the state’s abortion ban made less restrictive. The Tennessean/Siena College Poll shows that 60% of voters support making the ban less restrictive, including by adding in ‘exceptions’. Only 24% said they opposed such a move.

But here’s where it gets juicy: 65% of Republicans want to see the ban made less harsh—as did 56% of those who identified as conservatives, and 54% who identified as Evangelical. This really goes to show the popularity of abortion rights—and how fucked Republicans are. They’re losing on abortion with conservative evangelicals in Tennessee!!

The Kentucky woman who challenged the state’s abortion ban has withdrawn her suit now that her pregnancy isn’t viable. The ACLU of Kentucky is going to continue to look for plaintiffs in what they want to be a class action lawsuit against the state, but pointed out that their options are limited because of a state Supreme Court decision that said abortion providers can’t sue on behalf of their patients.

The Lexington Herald-Leader has more on that hurdle—which is a big part of why it’s so difficult for people in Kentucky to bring challenges against the abortion ban. Law professor and friend-of-the-newsletter David Cohen told reporters, “Kentucky has made it harder than in every other state to challenge its abortion laws.” He points out that the state Supreme Court decision essentially puts the burden on individual pregnant women:

“It’s really hard to find people who are willing to give up their privacy amidst a difficult personal time, whether it’s someone who’s pregnant and doesn’t want to be, or someone who wanted to be pregnant but has a medical complication.”

Speaking of those brave enough to come forward: Law professor Greer Donley has an excellent op-ed in The New York Times about Kate Cox. She writes that what Texas did to Cox is completely predictable, and outlines the way in which ‘exceptions’ are basically useless. Donley writes that one of the problems with laws around risks to a pregnant person’s life—and how they define such a thing—is that the “categorization misses is that pregnancy is inherently risky.” And that when you’re talking about fatal fetal anomalies, “there is no categorical way to distinguish the diagnoses that are worthy of exemption in anti-abortion laws and those that are not.”

Dr. Andrea Palmer told NPR something similar in an interview about Cox: “A medical emergency is a pretty nebulous designation.” She said that the problem with legislating medical care is that health is nuanced and a law can’t account for everything that might go wrong. “That's why taking the decisions out of the hands of the patient and the physician is just really dangerous and scary,” she said.

One of the women harmed by Texas’ abortion ban—Taylor Edwards, a plaintiff in the case brought by Center for Reproductive Rights—shared her story today with the Austin American Statesman. Edwards’ fetus had a fatal condition, but was still forced to leave the state for care. She also spoke to reporters about what it’s been like for her to watch Kate Cox’s case, so similar to her own:

“It has been infuriating to watch this happen again, and to have the state show that this is what their intention is and they know what they're doing, and they never intended for exceptions to actually exist.”

In more cruelty-is-the-point news, let’s talk about Idaho. A lawyer for the state wants a judge to throw out a challenge to the state’s abortion ban, because, he says, the women who brought the suit are no longer pregnant. Somehow, it gets worse.

The four women who brought forward the suit—which wants clarity on the ban’s medical ‘exceptions’—all had to leave Idaho for abortions even though they had dangerous and complicated pregnancies. But James Craig with the Idaho Attorney General’s office says that because the women are no longer pregnant, any complications or health dangers are “hypothetical” and therefore irrelevant. From plaintiff Jennifer Adkins:

“It’s easier for them to pretend that we don’t exist, to ignore the trauma and tragedy that we have been through as a family. We are casualties that they’re comfortable with.”

They’re expecting a ruling in the case next month.

In Pennsylvania, Democrats pushing for an abortion rights amendment to the state constitution, with the House Judiciary Committee holding its first meeting on the effort last week. As WSKG points out, the path forward will be hard because Republicans control the Senate—but I’ll keep you updated as I find out more.

Maine lawmakers are also pushing an abortion rights ballot measure. Sen. Eloise Vitelli’s bill says that “every person has a right to personal reproductive autonomy, which is central to dignity and the liberty to determine one’s own life course.” If the bill passes, the question would then be put to voters.

Quick hits:

The campaigns for and against Ohio’s Issue 1 spent a combined $70 million;
More Wisconsin Planned Parenthoods are resuming abortion care;
We’re still waiting on an abortion ruling in Wyoming;
More on the women-led businesses that filed an amicus brief in support of the challenge against Texas’ abortion ban;
And while most Minnesota voters would support an abortion rights amendment, a new South Dakota poll shows mixed results on support for the same.

“In our case, there are arguments against why we don’t have standing. One of the reasons they said we don’t have standing is because, for example in my case, I am unlikely to be able to get pregnant again. And so this law won’t affect me because I probably can’t get pregnant again. And what they fail to realize is that the reason I probably can’t get pregnant again is because of what happened to me, because of the laws that they have enacted.”

- Amanda Zurawski, lead plaintiff in challenge against Texas’ abortion ban. Zurawski nearly died after going septic after being denied an abortion.

America Supports Abortion—and Republicans Don’t Care

Yesterday, The New York Times published a piece that got into all of the stuff we’ve been covering at Abortion, Every Day—from the attacks on democracy and ballot measures to just how pro-choice Americans really are. They even covered my favorite ever PerryUndem poll!

The short version of reporter Kate Zernike’s piece? Yes, Americans support abortion—but will it matter if they can’t vote on it?

POLITICO gets into a similar question today, looking at all of the various ways that Republicans and the anti-abortion movement are trying to keep abortion off the ballot. Steven Aden of the powerful anti-choice group Americans United for Life says, “All options should be on the table…we don’t believe those rights should be subjected to majority vote.”

Of course they don’t: because they know they’ll lose. And that’s why they’re launching local “decline to sign” efforts even though the petitions aren’t a vote in support of a pro-choice ballot measure—just an affirmation that you think voters should have a say.

The head of the Nebraska Catholic Conference, for example, told supporters to try to talk up petitioners in order to waste their time and ensure they can’t gather signatures. And as Abortion, Every Day reported a few months back, a group in Florida asks people to alert them when they see canvassers so that their anti-choice activists can rush down to the location.

POLITICO also reports on the efforts in states like Florida to attack proposed measures on their ‘viability’ language. As you know, Republican Attorney General Ashley Moody wants the state Supreme Court to reject a pro-choice amendment because she says the ‘viability’ standard is deliberately misleading.

That’s part of the reason I was so pleased to see in-depth coverage of the PerryUndem ‘viability’ report in the Times piece. For those who need a reminder: The polling group presented people with two ballot measures, one that that had a viability limit and one that didn’t. The one without the language about viability did better—by 15 points! Which is just another reminder that one way to get around the Republican attack on ‘viability’ language in ballot measures is to not include any.

What’s more, the Times reports that when PerryUndem did follow-up interviews, they found that respondents who had heard post-Roe horror stories about women being denied care were much more likely to support a ballot measure—including nearly 60% of Republicans:

“Even 46 percent of voters who said abortion should be illegal in most cases were likely to support a ballot measure establishing a right to abortion, if they had heard these stories. And over and over, voters explained their preference by saying they did not want the government involved in deciding who gets an abortion.”

This is why Republicans are so terrified of Kate Cox’s story, and of what’s happening to women like Brittany Watts. These stories are deeply resonated with voters. As Undem said, “Is it complex, is there a lot of gray? Yes. That’s why they don’t want politicians making their decisions.”

In the Nation

The New York Times released an investigation this weekend into the years-long internal SCOTUS fight that led to Roe being overturned, and it’s a must-read piece. A few of the details that stand out:

The leak of the Dobbs decision undercut Chief Justice Roberts and Justice Breyer’s attempts to halt the decision or find a compromise; Samuel Alito lied about his wishes to overturn Roe in his 2006 confirmation hearings; Neil Gorsuch either didn’t read the draft opinion before signing on (or secretly viewed the draft before the other justices); and Brett Kavenaugh lobbied the court to postpone the Dobbs announcement until months after Ruth Bader Ginsburg’s death to help the court’s image.

What’s clear is that the conservative justices were well aware that the decision would erode public trust in the Court, and that they tried to save face as the decision came hurling down the pikeway. This, paired with yet another new ProPublica report on even more violations of court ethics by Justice Clarence Thomas, show just how far SCOTUS is departing from norms and traditions.

For a good analysis, check out Slate’s Dahlia Lithwick and Mark Joseph Stern, who write that the investigation makes clear that the conservative legal movement had “no regard for precedent, doctrine, or the appearance of legitimacy.”

Meanwhile, Sens. Elizabeth Warren and Tammy Baldwin have introduced a resolution with 38 other Senators supporting the FDA’s approval of mifepristone after the Supreme Court’s announcement last week. The resolution expresses how the abortion pill is “safe and effective,” and the FDA’s authority should be upheld.

Rep. Jan Schakowsky and Ellen Gaddy, granddaughter of the late Sen. Jesse Helms, are urging the Biden administration to use their power to go after the Helms Amendment—the policy that restricts the use of US foreign assistance for abortions, even in countries where abortion is legal. They argue the White House could ease how it's implemented, and Schakowsky has introduced legislation to overturn the amendment.

Finally, Adam Serwer wrote an incredible piece at The Atlantic about the ongoing attacks on abortion and what they mean for the real people behind the stories.

“Once you understand how dangerous pregnancy is, how many things can go wrong, and how hard it is for everything to go perfectly right, these incidents in which state commissars see mothers and their families as little more than props in their own ideological holy war become even more perverse.”

Indeed. (Adam also gives Abortion, Every Day a nice shout out.🙂)

Quick hits:

Elon Musk and Mark Zuckerberg are set to provide a House briefing on abortion misinformation and disinformation this week;
Molly Jong-Fast writes about the post-Roe horror show in Vanity Fair;
Doctors across the country continue to fear legal risk while trying to provide reproductive health care for their patients;
And if you missed ABC News’ special on read the women’s stories here and watch the full episode on Hulu.

2024

If Republicans were on their heels on abortion rights after November, last week knocked them on their asses. With post-Roe horror stories gaining international attention and conservative lawmakers and activists doing anything possible to avoid answering questions about the issue, it’s never been clearer that the GOP has their work cut out for them in 2024.

In anticipation, Democrats are going all-in on abortion rights. (Remember when they refused to talk about this in any meaningful way??) USA Today reports that House Democrats are highlighting GOP dysfunction, especially when it comes to abortion. And Business Insider says that Dems are putting their weight behind efforts to flip state legislative conservative majorities—strongholds that have banned abortion in spite of voters’ wishes.

Heather Williams, president of the Democratic Legislative Campaign Committee (DLCC), for example, told The Guardian that they’re looking to elections like the last one in Virginia as proof for why focusing on abortion is a winning tactic:

“In the lead-up to the elections in Virginia, voters knew that, if they went to the polls on Tuesday and woke up with a Republican trifecta in their state legislature, there would be an abortion ban. That very clear line of stakes has resonated but also motivated people and we’re seeing more interest, engagement, enthusiasm, participation in legislative races.”

Meanwhile, the Biden campaign wants to tie all the post-Roe horror stories that are resonating so much with voters to Donald Trump. Campaign spokesman Michael Tyler told CNN, “We will make sure that the American people know that Donald Trump is to blame…If Trump is reelected, we will face the reality of a nightmare scenario—and that’s a national abortion ban.”

I’ve said it before and I’ll say it again: We need more proactive messaging and plans on abortion rights. Biden has to go beyond “Trump bad.” Look at the polling! Look at what voters told PerryUndem! As I wrote this weekend, this is Democrats’ chance to do the right (and smart) thing.

Abortion, Every Day in the News

If you missed me on MSNBC last week, I spoke to Alex Wagner about abortion bans and how Republicans are doing their best to run from the consequences of their cruelty: