Abortion, Every Day (12.28.23)

Another South Carolina bill to make abortion punishable by the death penalty?

Dec 29, 2023

Criminalizing Care

South Carolina is at it again! It appears that a Republican lawmaker wants to bring back the bill that would allow abortion patients to be punished with the death penalty. I’m sure you remember the “Prenatal Equal Protection Act”—legislation co-sponsored by two dozen Republicans that would characterize abortion as a homicide. (Abortion, Every Day was first to break the news about the bill.)

The legislation caused a firestorm both in the state and around the country—after all, it put a spotlight on the hypocrisy of Republicans who claimed women wouldn’t be punished for having abortions. After sustained outraged, Republican co-sponsors started dropping like flies, and the bill didn’t go anywhere.

This week, however, one of that bill’s original sponsors, Rep. Jordan Pace, says he’s pre-filed the “Equal Protection Bill”—which sounds eerily similar to the death penalty legislation. I’m still looking for the text of this new bill, but so far it seems as if it’s a rehashed version of the 2023 legislation.

‘Equal protection’, for example, has become a common phrase among anti-abortion extremists, used to argue for full legal personhood (including treating abortion as homicide). ABC News 4 also spoke to Pace about the bill, which the Republican says would give fetuses “the same constitutional protections right of life as you and I who are outside the womb.”

We also know that Pace was one of the last Republicans standing on that 2023 bill, and complained that the media had “overblown the death penalty aspect” of the legislation. At the time, he said, “I think it's entirely appropriate to protect all people, regardless of their size, shape or location, equally under the law. So, if it can be proven that one person killed another person, on purpose, then that is by definition homicide is it not?”

So, yeah—looks like we’re going to have another death penalty abortion bill in South Carolina. I’ll be curious to see how much support Pace gets from his fellow Republicans, but in the meantime I’m going to repeat what I’ve said so many times before: it doesn’t matter whether this bill goes anywhere or not. This is how the GOP normalizes radical anti-abortion legislation: reintroducing it again and again until we become numb to the extremism.

In the States

It looks like Nebraska’s governor sees the pro-choice writing on the wall. After Republicans passed a 12-week ban in the state, Gov. Jim Pillen promised to keep going and end abortion rights entirely. But now, the Nebraska Examiner reports, Pillen is backtracking.

With a pro-choice ballot measure in the works—and similar amendments winning every time they’re put in front of voters—Pillen now says he’s not supporting any new restrictions on abortion: “Right now, today, we've got to make sure we protect every baby after 12 weeks of age. We sure as heck can't go backwards. So that’s my focus right now.’”

Pillen claims the reversal isn’t about abortion rights’ popularity, or the fact that pushing for a total ban could drive support to the pro-choice ballot initiative. “I’m a believer that you've got to understand and see what cards you're dealt and try to assess the field, and that's where we're at today,” he said. Sounds like he’s scared to me!

Kentucky Gov. Andy Beshear still wants the state’s abortion ban to have rape and incest exceptions, as well as exemptions for those with non-viable pregnancies. The Democrat, who just won re-election, says, “There are kids right now that have been raped and impregnated by family members that don’t have any options.”

Gov. Beshear’s win has been seen as a model for other Democrats in red states—and is also clearly making an impact on Republicans. Attorney General-Elect Russell Coleman, for example—who campaigned as a ‘pro-life’ candidate—says he’s “calling on the General Assembly to look at adding the rape and incest exception to the life of the mother component.”

You all know I struggle with this: I’m not an incrementalist, and we know that exceptions don’t really work. They’re not real. But I also understand that fighting for abortion rights in Kentucky is its own particular challenge.

Speaking of, the Lexington Herald-Leader looks at the specific legal challenges to reversing Kentucky’s abortion ban. As I’ve reported previously, the primary hurdle is that the state Supreme Court ruled that abortion providers don’t have standing to bring challenges to the state ban. That means a pregnant person needs to bring suit.

And as law professor David Cohen said last month, “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.”

For a quick overview on what’s happened in Kansas on abortion rights in the last year, listen to NPR in Kansas City:

And in Missouri, the Springfield News-Leader has profiled Crystal Quade, the gubernatorial hopeful who wants to restore abortion rights. Quade, the current Democratic House Minority Floor Leader, recently filed a House Joint Resolution to add an abortion rights amendment to the state constitution. And while there are already abortion rights ballot measures moving forward in Missouri, Quade’s move seeks to bypass all of the signature-gathering and put the question directly to voters. This way, Quade says, they can “finally have their say without the gimmicks and outright lies we’ve seen play out in the courts.”

As you know, Missouri Republicans have spent months trying to stymie any pro-choice ballot measures. Secretary of State Jay Ashcroft, for example, has been pushing for a biased and inflammatory ballot summary like the one we saw in Ohio, and Attorney General Andrew Bailey held up the process for months by refusing to sign off on a cost estimate for the measure.

Quade says, “The timeline is definitely a crunch, and I am not going to say that it’s not—that’s by design.”

The other hold-up in Missouri’s abortion rights ballot measure battle are the measures themselves. Multiple groups have submitted proposed amendments, including a Republican strategist who says she’s seeking a middle ground on the issue. This week, abortion rights advocate and lawyer Bridgette Dunlap wrote in The Kansas City Star about why those ‘compromise’ measures are anything but. It’s definitely worth a read, as is her detailed Substack article on the same issue.

For more background on what’s happening in Missouri, read AED’s coverage here:

Missouri's Ballot Measure Battles

Jessica Valenti

December 5, 2023

Read full story

Abortion, Every Day has been keeping a close eye on Florida these days—especially the state Supreme Court. These Ron DeSantis-appointed judges will determine the future of abortion rights in a few ways: They’ll decide whether the abortion rights ballot measure can move forward by approving or rejecting the language of the amendment, and their ruling on a challenge to the state’s 15-week ban could usher in a near-total ban that Florida voters decidedly do not want.

The pro-choice ballot measure pushed by Floridians Protecting Freedom has broad support among voters, including a majority of Republicans. The group has also collected enough signatures to get the amendment on the ballot. But Republican Attorney General Ashley Moody has petitioned the Court to reject the measure, claiming the amendment’s language on ‘viability’ is deliberately misleading.

And then there’s the challenge to the 15-week abortion ban: If Florida’s Supreme Court rules that the state constitution’s right to privacy doesn’t include abortion, it clears the way for a more recently-passed 6-week ban to go into effect.

Remember, what happens in both of those decisions won’t just impact people in Florida, but across the region. There’s a reason that the abortion rate in the state has increased despite its 15-week ban: Florida providers are seeing a massive increase in out-of-state patients. Without even this limited access in Florida, the Southeast will take a huge hit.

Speaking of devastating impacts on abortion access: what happens with mifepristone will have a huge effect in Hawaii, where abortion medication is the primary way people end pregnancies. On Kauai, for example, there are no clinics that offer procedural abortions, and only four doctors prescribe abortion medication.

Finally, there are a handful of abortion-related bills coming up in 2024 in New Hampshire—including Democrats’ push for a pro-choice amendment in the state constitution. The bill would protect abortion rights in the state up until 24 weeks, keeping with the broader trend of pushing amendments that have some sort of ‘viability’ standard. On the other side of the aisle, New Hampshire Republicans are pushing for a 15-week ban that is unlikely to pass. (Governor Chris Sununu called it “crazy.”) You can read about the rest of the bills, including protections for abortion medication, at the Boston Globe.

Quick hits:

The Arizona Mirror looks at the similarities between Arizona’s 1864 ban and the Dominican Republic’s 1884 ban (both of which are being battled by pro-choice activists);
The woman who set fire to a Wyoming abortion clinics has been ordered to pay close to $300,000 in restitution;
The Des Moines Register looks at the abortion rates in Iowa;
And the Portland Press Herald reports that Maine is seeing an increase in out-of-state abortion patients.

In the Nation

The new chair of the Republican Governors Association, Gov. Bill Lee of Tennessee, tells POLITICO that abortion isn’t that big of a problem for the GOP at all. Which is…an interesting take!

Lee says that it’s not reproductive rights that’s winning elections, but who spends the most money campaigning. He says, “what a race comes down to is oftentimes not as it appears.” Even when continually pushed on the issue, Lee dug into typically wishy-washy messaging on advice for other Republicans:

“I think when people understand how you personally feel about this deeply personal issue, most of them then can decide what they think about you or the issue itself. I go back to: Know what you think, be very clear about it so that there’s no misunderstanding, and recognize that it’s a deeply personal but very important issue.”

What’s noteworthy to me is that Lee used the phrase ‘deeply personal’ four times when talking about abortion rights. It’s similar to Nikki Haley’s talking points, and the way in which Republicans are pivoting to ‘softer’ language—words like ‘compassion’, for example, which is popping up more and more. What’s extra frustrating is that it feels as if pro-choice language is being co-opted and twisted by the GOP: ‘deeply personal’ sounds like Democratic rhetoric!

That’s why Dems should be gearing up to take on messages like this head on, calling attention to the hypocrisy of the language. (By pointing out, for example, that Republicans want to eradicate Americans’ ability to make those ‘deeply personal’ choices for themselves.)

Gov. Lee isn’t the only conservative who’s been fooling themselves on abortion rights. In The Washington Post, columnist Megan McArdle admits that she was wrong about how much Americans cared about abortion rights. In part, she blames her very bad judgement on not knowing just how extreme Republican lawmakers would be when implementing abortion bans, the result of which has been “a parade of horrifying stories as doctors refused to provide abortions to a 10-year-old rape victim, and to adult women whose very-much-wanted pregnancies had gone horribly wrong.”

But here’s the thing, McArdle was one of the pundits downplaying stories like the 10 year-old rape victim from Ohio! It wasn’t so long ago that McArdle tweeted that “only 10% of girls under 11 even get their period,” suggesting that perhaps this wasn’t such a big problem at all. (And by the way, she was incorrect: 10% of girls get their periods by 10 years old, and by 12, more than half of girls have their period.)

Which is just to say: pundits are going to be running from their bad opinions in the same way Republicans are running from their bad politics. It’s up to us not to let them.

Quick hits:

The executive director the Abortion Coalition for Telemedicine writes at The Hill that it’s the best and worst of times for abortion in the U.S.;
NPR looks at the women leading Democrats’ push to woo Latino voters on abortion rights;
The Concord Monitor on the cruelty of the anti-abortion movement (with a nice shout out to AED);
And Reuters predicts that the 2024 abortion battles will be mostly about emergency abortions and travel for care. (I’ll have my predictions to you in the next few days.)

Stats & Studies

POLITICO has analyzed more than 15,700 newspaper articles published in states with abortion bans or restrictions, in order to track how local news has changed since Roe was overturned.

It’s a really interesting piece that took a novel approach: After identifying two major themes in coverage—abortion as a political issue, and the real-world effects of abortion restrictions—POLITICO compared different keywords to paint a picture of how local news dealt with abortion rights. For example, they contrasted ‘health care words’ (ie. pregnancy, doctor, child) with ‘politics words’ (vote, Republican, Democrat).

The other incredibly important bit was their examination of what kind of reporters are writing about abortion rights, and how that impacts coverage:

“In early 2022, months before the Dobbs decision, Pew Research conducted a survey of nearly 12,000 journalists across the country. Among local reporters surveyed, 12 percent covered the health beat. Nearly three times as many covered government and politics—the most common among local reporters.”

That means we’re going to see more stories that focus on abortion as a political issue, even though we know that human stories are the ones that change hearts and minds.

In a good news/bad news result, they also found that local news coverage of abortion has been divided among different reporters beyond politics and healthcare: education, and even sports reporters have been covering abortion stories. In part, that makes sense—as POLITICO reporter Jessie Blaeser points out, abortion is a multifaceted issue that intersects with different areas of American life.

But that also means that the people covering abortion rights may not know all that much about abortion. Which is really dangerous. And I’ve seen the consequence of that ignorance every day when researching the newsletter: stories using stigmatizing language, articles that give equal space to anti-choice activists even when they lie, and coverage that trusts law enforcement and state officials over all else.

Consider how Brittany Watts’ story was first put out into the world: When local Ohio outlets started writing about how Watts was arrested for ‘abuse of a corpse’ after miscarrying, they didn’t get the full story, talk to Watts, or look at how criminalization of pregnancy outcomes generally work. Instead, they printed prosecutors’ and police’s words as fact, and focused on the most salacious details—even when they weren’t true.

Those kinds of mistakes don’t just paint an inaccurate picture of an issue, they ruin lives. (This a big reason why I publish Abortion, Every Day: I want to make sure that these stories are being contextualized in the right way before they hit the national stage, as I tried to do with Watts’ story.)

Anti-Choice Strategy: Young People

Young people are perhaps the most pro-choice demographic in the country: Nearly 75% of adults under 30 believe abortion should be legal in most or all circumstances, nearly 40% of 18-29 year olds say abortion should be legal in all circumstances, and a 2019 survey showed almost 80% of college students want abortion to be legal. So it makes sense that the anti-abortion movement is obsessed with reaching younger people—namely, by going after them early.

This week, I saw two different pieces in which representatives from Students for Life talked about their strategy to reach younger voters and do outreach in schools. In a piece about the abortion rights ballot measure in Arizona, for example, Students for Life president Kristan Hawkins says, “It is not a lost cause in talking to young people about abortion.” And in a piece about abortion rights in Florida, the regional coordinator for the group, Andy Secola, says the biggest shifts and wins will happen through education and by influencing students.

The group has even hired a whole new department of field team members to help build student ‘pro-life’ clubs. So let’s keep an eye on this: Targeting students is a smart way to build power in key states and across the country.

A reminder that Abortion, Every Day is publishing on a limited schedule through the first week of January. The newsletter will be back in full force soon, after some much-needed days off!

JD Considine

Apart from the obvious, the big problem with the "personhood" approach to fetal rights is that it completely undermines the general concept of personal rights. If you look at the philosophical underpinnings of English common law and its American descendants, the whole concept of rights under law is tied to the ability to act -- or the government's constraints on that ability. Basically, individuals respected by law have agency, to act, to speak, to think, to worship, and the government may not constrain that ability. Moreover, it's understood that those who are limited by some physical disability should not lose righs as a result, but should be accommodated in the public sphere.

No problems with that, right?

But here's the problem: A fetus can't act. It can't be independent of its mother. And this is not a disability -- it's the fetus' natural state.

So when the state declares "fetal rights," what it actually is stating is that it will act, presumptively, "on behalf" of the fetus, with no input from the fetus (who is incapable of doing so) and against whatever feelings the mother might articulate. In other words, it takes the purported notion of "fetal rights" and uses it as a tool to override the mother's rights. Which, obviously, is fine by all the "right to llfe" crew.

But the problem (beyond the obvious) with this is that by granting the government presumptive rights over one sector of society, you've also granted the government the ability to declare presumptive rights in other areas -- terminal care, say, or the treatment of prisoners or immigrants, or in determining ceilings for health care. Maybe the "pro-life" folks are fine with this level of Big Brother-ism. But this is no slippery slope -- it's a fucking tobbagan run. And people need to be aware of that.

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