Conservatives Are Trying Out a Wild New Legal Tactic

11.27.24

Click to skip ahead: Anti-Abortion Strategy highlights a wild new legal tactic in Minnesota. In the States, news from Texas, California, Alabama and more. I’m keeping an eye on federal strategies in National Ban Watch. Covering Trump looks at the incoming president’s only response to abortion questions. Keep An Eye On propaganda about crisis pregnancy centers. In the Nation, some quick hits. And in You Love to See It, RHONY takes on abortion rights.

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Anti-Abortion Strategy

Okay, this legal strategy anti-abortion activists are trying out in Minnesota is truly wild—but also entirely predictable. They’re claiming that abortion isn’t a medical procedure, but the termination of parental rights. And that without significant restrictions on abortion like waiting periods or counseling, Minnesota women are having their parental rights terminated without informed consent. Essentially the suit, filed in federal court, is arguing that women who have abortions are effectively being coerced to give up their “children.”

Like I said, wild.

The suit was brought by a group of anti-abortion crisis pregnancy centers, two anti-abortion doctors and three women who say they were coerced into having abortions. They’re targeting Gov. Tim Walz, Attorney General Keith Ellison, Planned Parenthood and several other organizations.

Honestly, I feel like I should have seen this coming a mile away—because I started tracking rhetoric around ‘coerced’ abortions almost a year ago exactly. I pointed out that anti-abortion activists were ramping up their language around coercion because, they said, “no one is openly in favor of coerced abortions.” It was an especially important move in a moment when Americans are so overwhelmingly pro-choice; they needed a talking point that voters wouldn’t think was radical.

But ‘radical’ is the only way to describe this lawsuit, along with their ‘coercion’ argument in general. Anti-choice attorneys argue that abortion is “not medical treatment,” but “employment of a medical procedure to achieve a non-medical objective: the termination of a pregnant mother’s constitutionally protected relationship with her child.”

The suit points to the systems in place when a woman gives a child up for adoption or otherwise terminates her parental rights, like waiting periods, counseling, and a court hearing. They argue if that’s how the state ensures women are fully informed to give up their child for adoption, it stands to reason that similar requirements should be in place for abortion.

The groups also argue that by allowing women to have abortions without serious restriction, the state is scheming—with groups like Planned Parenthood—to terminate women’s parental rights and sever “her relationship with her child.”

What makes that claim so galling, besides the obvious, is that it’s anti-abortion legislators who are trying to make it easier to terminate parental rights and ‘streamline’ the adoption process. Anti-abortion organizations are also known for targeting vulnerable women in crisis pregnancy centers and maternity homes, directing them to evangelical adoption agencies and pressuring them to give up their children.

As is often the case with anti-abortion activists, there’s a whole lot of projection happening here.

Regardless if the ‘termination of parental rights’ argument gains steam in Minnesota (unlikely) or anywhere else, I’m thinking of it as a tactic they’re trying out in service of ‘coercion.’

Because consider this other bit of recent news: Now that Missouri voters have passed Amendment 3 to enshrine abortion rights in the state constitution, Republican Attorney General Andrew Bailey is looking for ways to hold onto some restrictions. His argument? That that the state still has a right to ensure that women aren’t being “coerced” into abortions. There it is!

We know very well what it looks like when Republicans try to prevent ‘coerced’ abortions: Louisiana legislators used ‘coercion’ to advance the law classifying abortion medication as a controlled substance; and in Kansas, anti-abortion legislators tried to pass a bill requiring doctors to ask patients invasive questions that were more about shaming women than helping them.

All of which is to say: I’m tired as fuck, but I have my eyes peeled open for more strategies like these.

In the States

I told you last week that anti-abortion groups in Texas are gearing up to go on offense once Trump takes office. Specifically, Texas Right to Life is on the hunt for men to bring civil suits over abortions they didn’t want their partners or ex-partners to have. And they’re hanging out around ‘abortion recovery groups’ for men to find plaintiffs. What could go wrong?!

Chron digs deeper into the strategy this week in an interview with John Seago, the president of of the anti-abortion group. Seago talked about wrongful death suits brought by men who “have standing on behalf of the victim of abortion,” citing Marcus Silva’s case, specifically. For those who don’t remember, that’s the guy who sued his ex-wife’s friends for allegedly helping her obtain abortion pills. Unsurprisingly, Silva was an abuser—he even tried to blackmail his ex for sex by telling her he’d drop the case if she slept with him.

The fact that Seago mentioned his case in particular is troubling; it means he has no problem representing abusive men. (Which we knew, of course, but admitting it explicitly is a whole other level.)

The truth is that this civil suit tactic was always about emboldening abusers and the worst kinds of people; and Seago’s obsession with men’s power and control is impossible to hide:

“There's a couple there, a father and a mother of the child. But behind that, there's entities that were conspiring to promote illegal activity in Texas. And under circumstances, they would be charged with conspiracy to commit homicide.”

The other notable bit in the interview is that Seago made clear they’re seeking to go after organizations that help women get abortion medication. He likened it to being a getaway driver in a bank robbery. As I’ve written here and in Abortion, they are desperate to attack the helpers.

Meanwhile, California is thinking about how to deal with a different type of anti-abortion strategy: CalMatters points out that if the Trump administration enacts abortion ‘reporting’ mandates recommended by Project 2025, California could lose over $300 million in Medicaid funding for reproductive healthcare services. If you need a refresher, check out Abortion, Every Day’s Project 2025 explainer, but the short version is the roadmap calls for states to provide the federal government with detailed reports on every abortion performed or prescribed in the state. Those that don’t could lose Medicaid funding.

California is one of three states that don’t provide the CDC with abortion reports, along with Maryland and New Hampshire. As you know, conservatives are relying on abortion ‘reporting’ and data to do two things: 1) make women too afraid to get care, knowing that their abortions could be reported to the government, 2) create mechanisms to fabricate false data showing abortion to be dangerous when it’s not.

Finally, while Republicans in some states seem afraid of voters’ anger of abortion bans, the Alabama Reflector reports that Alabama lawmakers aren’t really interested in loosening the state’s total abortion ban. When the legislature passed the trigger law 2019, apparently they tried to downplay the move in their messages to the public. They said it was a challenge to Roe, and that if the precedent fell the state would likely revert to a 6-week ban.

Now that they have the total ban, though, Republicans aren’t even slightly interested in making it less horrific. Rep. Terri Collins said, “Everyone was pleased with the bill that we had in place right now.”

Pleased is quite a word to use when you have some of the highest maternal mortality in the country. Or when your state jails pregnant women if they’re even accused of using marijuana in a supposed attempt to “protect” their fetuses. I’m betting the people who want to get IVF in Alabama aren’t very pleased knowing that fertilized eggs are now considered “extrauterine children,” nor is the woman who was denied an abortion despite having a life-threatening molar pregnancy.

That word is going to piss me off for days.

Quick hits:

• New Jersey women are being proactive about contraception before Trump takes office;

• To no one’s surprise, the abortion rate in Iowa has gone down significantly since the state enacted its ban;

• And The Texas Tribune on the Texas bill to classify abortion medication as a controlled substance.

National Ban Watch

One of the biggest lies Republicans told in the lead-up to the election was that they wouldn’t pass a national abortion ban. In an effort to win over voters angry about the end of Roe, the GOP insisted that abortion decisions would be left to the states. But conservatives have always had a plan to sidestep that promise.

We know that the Trump administration could enact an informal abortion ban by targeting abortion medication, for example, which constitutes 63% of abortions in the country: Enforcing the Comstock Act would ban the shipping of the pills and abortion supplies; and the FDA could repeal or severely restrict the medication.

Or Republicans could pass a national ban but just call it something else, a tactic they’ve been laying the groundwork for over months of language games: While claiming to oppose a national abortion ‘ban,’ Republicans from state lawmakers to the Trump campaign signaled support for a ‘minimum national standard.’ Which, of course, just means abortion ban.

I don’t think efforts to ban abortion nationally will end there, though—and I’m confident their tactics will rely even more heavily on rhetorical trickery. I’ve warned, for example, that some Republicans have already argued that support for fetal personhood legislation doesn’t constitute support for an abortion ban. (How is that possible? Well, the personhood legislation didn’t use the word ‘abortion,’ they said.) And just this week, the powerful anti-abortion group Americans United for Life (AUL) revealed another potential strategy for passing a national ban—one I do think is likely to get traction.

General counsel Steven Aden told States Newsroom that AUL plans to support a federal “dismemberment” bill, legislation that would ban dilation and evacuations—an abortion procedure used after the first trimester. As reporter Sofia Resnick points out, “It would be a way to effectively get a 12- or 15-week ban without calling it that.” In other words, it would give Republicans the opportunity to claim that they didn’t break their promise about not passing a national ban.

That means we don’t just have to watch out for language about a ‘minimum national standard,’ personhood ‘protections’ and Comstock in the coming months—but attacks on specific kinds of abortions. Most importantly, we have to make sure that all of these tactics are being covered by mainstream outlets for what they are: attempts to pass a national ban.

Covering Trump

We all know Donald Trump’s public messaging strategy on abortion: Insist over and over again that the issue will be left to the states. It’s normal to have a go-to talking point on an issue; what’s not so normal is that Trump’s team outright refuses to say anything about abortion beyond that singular talking point.

In fact, it appears that Trump spokesperson and incoming White House press secretary Karoline Leavitt actually copies and pastes the same exact sentence over and over whenever the disgraced former president is asked about the issue.

For example, when the Washington Post asked Trump about state-level bans back in May, Leavitt told the publication via email, “President Trump has long been consistent in supporting the rights of states to make decisions on abortion.” She offered the same sentence—word-for-word!—just a few weeks ago when the Washington Post asked about the increase in American women stockpiling abortion medication and contraception.

It’s the sentence his team used when Newsweek asked this June about the Comstock Act, and the one the publication got again when they asked about IVF this September. I could go on. The Associated Press in May, Reuters a few weeks ago, and CNN two days ago: “President Trump has long been consistent in supporting the rights of states to make decisions on abortion.”

The only thing that’s changed? Before the election, Leavitt’s sentence was a little longer:

“President Trump has long been consistent in supporting the rights of states to make decisions on abortion and has been very clear that he will not sign a federal ban when he is back in the White House.”

As far as I can tell, she’s lost that second clause. Which…tracks.

“Whatever happens, people will get their abortion pills no matter what. I don’t think that is ever going to go away.” - Dr. Rebecca Gomperts of Aid Access.

In the Nation

Just a few quick hits today! To start, the CDC released their new abortion numbers. I’m going to have more for you on this on Monday, after I can do a deep dive into the data (and talk to some experts about possible gaps in the reporting).

NBC News has a bit on the abortion rate, looking at why the abortion numbers haven’t gone down since Roe was overturned—from telehealth and abortion medication to interstate travel.

The Guardian reports on Elon Musk’s obsessed with extreme breeding and pro-natalist bent to Trump-world men. (God help us)

And I’ll take my good news where I can: So far, Project 2025’s Roger Severino has been unsuccessful in securing a spot at the Department of Health and Human Services under Trump.

Keep An Eye On

I’ve written before about how Republicans are counting on anti-abortion crisis pregnancy centers to quell voters’ ire over abortion bans. Yes, they’re pouring hundreds of millions of dollars into the groups not to funnel money to religious organizations—but also to pretend as if they’re doing something to help the post-Roe care crisis. In my book, for example, I detailed how Republican governors and legislators claim that CPC funding is proof of their commitment to “women’s health.” (Never mind that these aren’t medical clinics.)

They need voters to believe that CPCs are a viable alternative to the real reproductive health clinics that their policies are shutting down or driving away. Republicans don’t want people to realize that they’re creating massive reproductive and maternal health deserts.

But CPCs don’t exactly have the best reputation; and many Americans realize that they’re ideological groups that shame and lie to women. Because they’ll be relying on the groups so much more, Republicans are eager to help them rehab their image, so enter conservative media. I’ve seen a serious increase in puff pieces about CPCs, articles that laud the groups for helping women (they don’t) or being a vital part of their communities (they’re not).

This Fox News propaganda piece is a good example, largely because of how transparent it is. The op-ed, written by a woman who says a crisis pregnancy center helped convince her to keep a pregnancy, oh-so-coincidentally praises the group for all of the things they are decidedly not known for:

“We sat and talked about how I felt, what an abortion would entail and all of the other options available to me. I left feeling completely informed, finally in control, surrounded by help and nonjudgmental support. I felt at home in that clinic. I felt heard.”

Ah yes, definitely sounds like a crisis pregnancy center! Let’s be serious: these groups routinely lie to women (sometimes putting their lives at risk in the process), scare patients out of getting care, and misrepresent themselves as medical professionals. And I’ll never forget the Guardian expose about the Kentucky that used expired disinfectant on trans-vaginal probes.

You Love to See It

I haven’t watched this yet, but I really want to: Apparently the latest episode of the Real Housewives of New York gets into abortion rights when two of the cast members reveal that they’ve had abortions. Jenna Lyons and Erin Lichy have a conversation about their abortions in the episode, in part sparked by the overturning of Roe v. Wade. Lichy told Glamour:

“Forget about choice for women like me, but what about someone who’s suffering or has a high-risk pregnancy? It goes so far beyond just my experience, and it’s scary. It’s scary to be a woman. If such a fundamental right could be stripped from us, what else can?”

The more that we see people talking about abortion, the better. We know that abortion stories change hearts and minds, impact votes, and reduce stigma. That’s because the more that Americans hear abortion experiences from people they know or care about, the more they are likely to empathize and understand. And as Renee Bracey Sherman says, everybody loves someone who’s had an abortion.