In mid-July, the Center for Medical Progress, a pseudo-bioethics advocacy group, began posting videos online falsely accusing Planned Parenthood of trafficking in fetal tissue, and prompting a firestorm of attacks against the women’s health organization. Senator Joni Ernst, R-Iowa, soon after introduced a bill to defund Planned Parenthood. Eighteen GOP Senators even pledged to force a government shutdown unless it is successful. Though the bill failed to pass a procedural vote earlier this week, the efforts of its supporters are far from over.
While the bill ostensibly responded to the allegations in the videos, it is but the latest in a string of legislative and judicial attacks on women. Even before the videos, anti-choice advocates fought at every turn to defund and eliminate Planned Parenthood. Their goal is the complete reversal of Roe v. Wade, and with it, women’s constitutional right to reproductive freedom. Heavily edited and mischaracterized videos are a convenient way to generate faux-outrage, but the attacks on women’s health were ongoing long before them.
Even before the videos, anti-choice advocates were engaged in an ongoing two-pronged strategy: use lawsuits based on religious freedom to cut off access to contraception, and enact draconian state laws that make safe, affordable abortions almost impossible to obtain. On both fronts, the activists have been helped by conservative judges.
In a Supreme Court case decided last year, Burwell v. Hobby Lobby, the Court ruled that, despite the Affordable Care Act’s contraceptive mandate, closely-held, for-profit corporations could invoke the religious beliefs of their owners to deny employees health insurance that covers contraceptives. The decision left important questions regarding women’s health not to the women themselves, but to their bosses.
In the year since, conservatives have returned to court seeking to drastically expand the ruling. Consistent with the decision, the Obama administration implemented exemption rules for religious institutions and other organizations like Hobby Lobby who object to providing contraception. These groups would only need to report their objection to their insurance company or the federal government, and then the cost of employees’ birth control will be paid by the government.
But for fifty-six nonprofit organizations, even that was a step too far. They filed a variety of suits challenging their already minimal obligation under the mandate. Many argued that simply notifying the government they were opting out of the mandate placed a “substantial burden” on their exercise of religion. In rejecting one suit brought by Wheaton College, Seventh Circuit Judge Richard Posner explained how the school misconceived its legal obligations:
“[W]hen Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers . . . that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans,” explained Judge Richard Posner in a Seventh Circuit ruling against the college.
Although the government has so far won all six cases decided in the courts of appeals, the real-world results have been less rosy. After losing its suit, Wheaton College chose to stop providing student health insurance of any kind in order to avoid the non-existent requirement that with insurance it must also provide emergency contraception.
The issue may soon return to the Supreme Court. There are currently six appeals involving the contraception mandate pending at the Court. That number is likely to grow as nine other cases are still pending in the circuit courts.
As those cases percolate, state lawmakers are striking at the heart of Roe itself and finding support from conservative judges. In June, the Fifth Circuit upheld a series of Texas anti-abortion laws that are some of the strictest in the country. The provisions require all clinics to have the same building equipment and staffing standards as hospital-style surgical centers, and for doctors to have admitting privileges at an area hospital. Disguised as a public safety protection, these laws are designed to be impossible to comply with. The result is the potential permanent closure of almost half of Texas’ few remaining abortion clinics.
Mississippi is currently seeking certiorari at the Supreme Court to close its last remaining abortion clinic, a feat it has been attempting for years. We tell the story of that clinic in our short documentary, Roe At Risk. And an Eighth Circuit decision last month, while preserving abortion rights in North Dakota for the moment, spent the majority of its opinion urging that Roe be overturned.
Republicans may not have succeeded in defunding Planned Parenthood this week, but their attempt is nothing new. And anti-choice advocates are stepping up the fight. The misleading and heavily edited Planned Parenthood videos are an excuse to push for what they’ve wanted for decades: an end to women’s reproductive freedoms.