With the midterm elections only a day away, we're all pretty focused on the government's legislative branch. On Wednesday, though, we're likely to feel more judicially minded, since the Supreme Court will be assessing the constitutionality of the federal Partial Birth Abortion Ban Act.
As we've mentioned before, the Justice Department ostensibly wants to resolve the conflicting rulings previously made by lower courts and get the ban a final yea or nay. It's no accident, though, that the composition of the court has changed since 2000, when it found Nebraska's "partial-birth abortion" ban unconstitutional because of its lack of an exception for the mother's health. Realistically speaking, the court is more likely to give the federal ban a "yea" this time. As the New York Times noted on Sunday, "Justice Sandra Day O'Connor, who retired in January, voted with the 5-to-4 majority" in 2000. No one really knows how O'Connor's replacement, Justice Samuel Alito, will vote on this or other abortion cases, but he does have a record of supporting restrictions on abortion access. If Alito votes to uphold the ban, and the other justices vote the way they did last time, it'll be up to the court's other new member, Chief Justice John Roberts, to break the tie. No one really knows how Roberts will vote, either -- a Los Angeles Times Op-Ed notes that Roberts told the Senate Judiciary Committee that "it is a jolt to the legal system when you overrule a precedent" -- but we can't discount President Bush's promise to nominate socially conservative justices in the Antonin Scalia/Clarence Thomas mold.
With those factors in mind, the New York Times identifies Justice Anthony Kennedy as the case's key vote, because he's "the only one of the four [Nebraska case] dissenters who accepts the court's precedents on the basic right to abortion." Not that he seems likely to vote against the federal ban: In his dissenting opinion in the Nebraska case, he called the abortion method in question "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."
And unquestionably, many people do consider this type of abortion procedure grave and criminal. The LAT describes the procedure as "partially extracting a fetus from the uterus into the birth canal, where [the physician] then collapses the skull by suctioning its contents," noting that the prospect is "distasteful even to many supporters of abortion rights." But the usual alternative to intact dilation and extraction, or so-called partial-birth abortion, is "disarticulated" dilation and extraction, in which the fetus is taken apart before it's removed from the uterus. So, really, neither procedure sounds like a walk in the park. Physicians say prohibiting intact extraction can endanger the mother's health, because, as the New York Times reports, of "the repeated insertion of surgical tools and by sharp bone fragments that can injure the patient internally." They also say the federal ban makes a false distinction between intact and disarticulated extraction procedures, that the two operations are actually "part and parcel of the same procedure." The plaintiffs claim the law criminalizes "an array of safe abortion procedures as early as 13 weeks in pregnancy."
These factors are critical to the issue currently on the table: The federal Partial Birth Abortion Ban Act doesn't include an exception for the health of the mother because Congress decided no such exception was necessary. Many physicians disagree, and, because of the high court's Nebraska ruling, lower courts have deemed the federal ban unconstitutional for this reason. Now, the Times reports, "the administration argues that the federal law and the Nebraska ruling can coexist if the court recognizes an obligation to defer to Congress's judgment that a health exception is unnecessary."
Congress' assertion seems medically unfounded and outrageous -- but we'd better hope that five justices think so, too, or the right-wing campaign to restrict abortion may get another boost this week.
Ah, compromise! There's nothing like an extreme assault on women's reproductive rights to make you truly appreciate moderation. On Wednesday night, Senate Majority Leader Harry Reid introduced the proposed Senate healthcare bill, which trades the House's stringent Stupak-Pitts language in favor of a limited ban on federal funding of abortions. Essentially, the bill applies the restrictions found in the Hyde amendment to the healthcare bill. Stupak supporters may claim their amendment accomplishes the same thing -- but, as we've repeatedly written in Broadsheet, it goes much farther.
The key details of the Senate bill are as follows: Both public and private plans are allowed to offer abortion coverage. It empowers consumers to use government subsidies to purchase insurance that covers abortion, but requires that their premiums (and not federal funds) pay for the actual procedures. The Health and Human Services Secretary is charged with evaluating plans to ensure that taxpayers do not pay for abortions. And, while the bill requires at least one plan in each state to cover abortion, it also includes a conscience clause stating that healthcare providers cannot "be discriminated against because of a willingness or an unwillingness ... to provide, pay for, provide coverage of, or refer for abortions."
It's a true compromise bill. Meaning, it seems, that now both sides have something to be unhappy about. Doug Johnson, the National Right to Life Committee's legislative director, issued the following statement last night: "Reid has sought to please the militant minority that demands funding of abortion through federal programs, even though substantial majorities of Americans believe that abortion should be excluded from government-funded and government-sponsored health programs." Along similar lines, anti-choice Sen. Ben Nelson told The Hill: "I think you need to have it eminently clear that no dollars that are federal tax dollars, directly or indirectly, are used to pay for abortions and it needs to be totally clear." Presumably, "eminently clear" means Stupak-Pitts.
On the other side of the divide, a press release from NARAL Pro-Choice America said President Nancy Keenan is "encouraged that the Senate bill does not include the extreme new anti-choice restrictions adopted by the U.S. House" but notes that "the legislation includes a compromise that continues existing laws that unfairly single out abortion care, including a ban on federal funding." Nancy Northup, president of the Center for Reproductive Rights, was more supportive of the bill: "It is absolutely critical that the compromise language in the Senate bill prevail in any health reform legislation," she said in a statement. Lest you think she's perfectly happy with the new bill, Northup added, "Women have compromised their needs substantially to pass the bill, and Senator Reid's merged bill contains even more stringent segregation of funds and other requirements to ensure that no federal money will pay for abortion services. Enough is enough, and there can be no further weakening of protections for women and their healthcare needs." Now that's a choice -- ehem -- note to end on.
Update: More pro-choice organizations have weighed in on the Senate bill. Consistent with the comments above, Cecile Richards, president of Planned Parenthood, just issued the following statement:
The Senate bill ensures that no federal funds will pay for abortion, which is in keeping with the 33-year consensus based on the passage of the Hyde amendment in 1976. While we don’t agree with Hyde or approve of the fact that the Senate bill singles out abortion from all other medical procedures, we believe that the Senate bill respects the Hyde consensus, while allowing women with private health insurance the choice of plan, coverage, and providers.
Terry O'Neill, president of the National Organization for Women, however, took a more aggressive stance. "The Senate version of the health care bill, released last night, purports to be less harsh, but make no mistake: the anti-abortion provisions of this bill are harmful to women. What's worse, we know there will be an attempt to amend the Senate bill to go all the way with a provision mirroring the House's Stupak-Pitts Amendment," she said in a statement. "Anti-abortion measures have no place in health care reform!"
I started the week biting my nails thinking about how the logic behind Stupak-Pitts could be more broadly applied. A Politico report about how Americans get $250 billion a year in tax breaks to buy employer-based plans, many of which offer abortion coverage, is to blame. I picked up the phone and called some of the amendment's supporting Congress members and anti-choice organizations to ask whether they might target such plans. Of course, my phone calls got me nowhere -- why would they reveal their long-term strategy to me? -- but, no matter. Now I realize my question was naive to begin with, because according to new analysis by George Washington University, it's possible the amendment itself could essentially bring about the same result.
Based on how the insurance industry "adjusts its products over time to conform to the regulatory environment in which it operates," the report concludes that Stupak-Pitts would "have an industry-wide effect." In short, it wouldn't just impact plans purchased through the new health insurance exchange. The most dramatic of those wide-reaching changes is that it will eliminate "coverage of medically indicated abortions over time for all women." That's no typo -- they truly mean all women (in the United States). The analysis explains:
The health benefit services industry, like any large producer of goods and services functioning in a national economy, depends on standardization and norms. If certain types of products are excluded in certain large markets, over time the market as a whole for the product can be expected to shift, as manufacturers move to accommodate their product to reflect the regulated design.
Insurance coverage of contraception offers a choice example of how this works:
Prior to the enactment of state contraception coverage mandates, most health plans did not provide the benefit. As state laws regulating the inclusion of contraceptives have become more prevalent, the broader health benefit services market has been affected. National health benefit services companies report today that they routinely include contraceptive coverage in their plans in all markets, not only those directly affected by state law.
As I mentioned earlier, those of you covered by employer-based plans should also take heed -- we aren't just talking about plans sold in the new exchange: "As the proportion of women of childbearing age covered by an abortion-related treatment exclusion grows, companies offering coverage products in the employer-sponsored market ultimately may elect to simply remove the procedures from their products so that they can be sold in all markets." The report also predicts that "health plan administrators will err on the side of coverage denial" when "interpreting and applying the exclusion." Why? Because of course "the legal risks associated with coverage determination are all on the side of incorrectly awarding coverage, not erroneously denying it." Ah, great.
Finally, there is the issue of those already much-maligned "riders." "It is essential that the supplemental coverage be administered in conjunction with basic coverage," the report says -- but, of course, Stupak-Pitts' requirement of strictly separate cash flow channels prevents this from actually happening. In other words, "the terms and impact of the Amendment will work to defeat the development of a supplemental coverage market for medically indicated abortions."
So goes a week in my post-Stupak life: I start off with one nail-nibbling concern and just a couple of days later I have many, many more.
Rep. Bart Stupak, D-Mich., isn't making many friends with one of his party's key constituencies. The amendment he drafted and got attached to the House's healthcare reform bill, which restricts abortion coverage, has become perhaps the most controversial aspect of the legislation on the left. And now he's taking a tough line on the possibility that the amendment could be changed or stripped altogether.
"They're not going to take it out," Stupak said of Senate Democrats during an appearance on "Fox and Friends" Tuesday morning. "If they do, healthcare will not move forward ... At least 10 to 15 to 20 of us will not vote for it."
Without those votes -- and those numbers about line up with a count that House Majority Whip James Clyburn, D-S.C., has previously offered -- the House can't pass the bill.
(Hat-tip to the Hill's Blog Briefing Room.)
Update: On the other hand, pro-choice Rep. Diana DeGette, D-Colo., said on an ABC News webcast Tuesday, "I think [Stupak] won't have the votes when people explain to those members what exactly the Stupak amendment does."
That's at least worth noting, but probably not much more than that -- DeGette's not talking about an actual whip count, but is hoping for a certain outcome.
Heard the new joke about healthcare reform? It's so funny you might forget to laugh -- and skip straight to crying. That's the aim of the stand-up routine delivered in the Center for Reproductive Rights' new ad against the Stupak-Pitts ban on abortion coverage. Check out the video or skip to my recap below:
The spot opens in a nightclub with a female comedian wielding the mic: "So, this woman goes to her doctor. She says: 'Doc, my back is killing me, does my insurance cover a breast reduction?' And the doctor says, 'Yes it does.'” The audience giggles. She goes on: "A guy goes to his doctor. He says: 'Doc, I can't breathe out of this side of my nose. Does my insurance cover a nose job? And the doctor says: 'Yes, it does.'" Again, laughter. She continues: "Another woman walks into her doctor’s office. She says: 'Doc, I’m 11 weeks pregnant -- my baby has anencephaly, parts of its brain and skull are missing. It’s fatal. Does my insurance cover an abortion?' And the doctor says: 'Oooh, no it does not.'” Cue deafening silence, audience members shifting uncomfortably in their seats.
Not so funny, is it? In a press release, CRR gives a run-down of key facts: 1.) "A majority of private health insurance plans now provide coverage for abortion services," 2.) "One in 3 women will have an abortion within her lifetime," and 3.) "Abortion is one of the most common surgical procedures." Under Stupak-Pitts, however, neither the new private plans nor the more affordable public option would cover abortion. On the ad's accompanying Web site, NoAbortionBan.org, you can tell Congress just how unamused you are. It will take all of 30 seconds -- half the time it took you to watch the video itself.
Roughly a month before the shooting death of Dr. George Tiller, the FBI received an anonymous letter warning that suspected killer Scott Roeder "would do physical harm" to the abortion provider, the Associated Press reports. The letter didn't offer a time-line, specifics or incriminating details -- just that the anti-abortion activist was going to hurt the late doctor. Here's where things get messy: The tipster, now revealed to be Mark Archer of Tunkhannock, Pa., and his wife were fighting for custody of Roeder's 7-year-old daughter. That's because his wife got pregnant by Roeder before she married Archer.
Clearly, Archer isn't an unbiased party. He admits that he wrote the letter in part to get the FBI to list Roeder as a domestic terrorist so that he couldn't fly from Kansas to visit his daughter in Pennsylvania. Despite being especially motivated to find dirt on Roeder, though, Archer was drawing conclusions based on facts, not fancy. There was Roeder's arrest in 1996 for possessing explosives; the comment he made to Archer's wife about being perfectly capable of blowing up an abortion clinic; and the numerous blog posts he allegedly wrote about putting an end to Tiller's work. The conclusion was rather obvious: Roeder was determined to harm the doctor.
It's understandable that the FBI wouldn't take a vague anonymous warning like this one too seriously -- after all, how many such tips must they receive every single day? But here's my question: If Archer could so easily figure out that Roeder was a threat to Tiller, why didn't the FBI?
One good thing has come of the Stupak-Pitts debacle, in which a bunch of anti-choice Democrats decided to hold the healthcare reform bill hostage until it severely restricted women's access to abortion: A lot of smart people have been writing about how the Democratic party has utterly failed women, and not for the first (or hundredth) time. Here's some of the best analysis you might have missed this week.
Kate Michelman and Frances Kissling in The New York Times:
The Democratic majority has abandoned its platform and subordinated women's health to short-term political success. In doing so, these so-called friends of women's rights have arguably done more to undermine reproductive rights than some of abortion's staunchest foes. That Senate Democrats are poised to allow similar anti-abortion language in their bill simply underscores the degree of the damage that has been done.
Many women -- ourselves included -- warned the Democratic Party in 2004 that it was a mistake to build a Congressional majority by recruiting and electing candidates opposed to the party's commitment to legal abortion and to public financing for the procedure. Instead, the lust for power yielded to misguided, self-serving poll analysis by operatives with no experience in the fight for these principles. They mistakenly believed that giving leadership roles to a small minority of anti-abortion Democrats would solve the party's image problems with "values voters" and answer critics who claimed Democrats were hostile to religion.
Judith Warner, also in The Times:
[S]ome of the more insidious elements of the long-brewing antifeminist backlash have become an accepted part of our cultural landscape.
We've seen this for years in the way we talk about motherhood: celebrating selflessness, demanding an almost inhuman degree of child-centeredness, positioning the interests of mothers in opposition to those of their children, as our political and personal debates so often do. Nowhere has this come to be more true than in the abortion debate, in which anti-choice activists have pitted the lives of unborn children against the selfishness of their mothers.
And never was the false conflict between women's self-determination and the greater good more cruelly staged than in the dilemma that confronted the pro-choice Speaker of the House last Saturday night as she faced the decision of whether to let health reform -- desperately needed by children and families -- move forward with a such a considerable blow to women's rights embedded within it, or whether to allow it to die on the vine.
Eleanor Clift in Newsweek:
Pelosi, a practicing Catholic, has withstood verbal condemnation for her views from Catholic bishops throughout her political career, but meeting with them in her office at the Capitol on Saturday, they had the votes, and she didn't.
Pelosi had no choice, and to her credit, she understood that. Rep. Louise Slaughter, a New York Democrat and an Episcopalian, voiced outrage that the bishops could lobby so blatantly when their tax-exempt status should prevent such strong-arming, but those niceties were irrelevant with a make-or-break vote looming for health care.
And Katha Pollitt, ranting gloriously in The Nation:
Elections have consequences, you say? Exactly: Obama, the prochoice, prowoman candidate, won. Stupak didn't put him in the White House, and neither did the Catholic bishops or the white antifeminist welfare staters of Beinart's imagination. We did. And we deserve better from Obama than sound bites like "this is a healthcare bill, not an abortion bill." Abortion is healthcare. That's the whole point.
What makes the Stupak fiasco especially pathetic is the fumbling response from prochoicers. Missouri Democrat Claire McCaskill would not be in the Senate today were it not for prochoice and feminist supporters like EMILY's List. How does she thank us? By telling Joe Scarborough that Stupak isn't so bad, that it won't affect "the majority of America"--just low-income women--and that it's "an example of having to govern with moderates." So people who'll tip healthcare reform into the trash unless it blocks abortion access are the moderates now! (McCaskill took it back later that day, but the damage was done.) If I ever give that woman another dime, shoot me.
Finally, some great minds over at Urban Dictionary are offering definitions of "Stupak," which aren't quite as evocative as Dan Savage's definition of "Santorum," but still make for fun reading. The only problem is choosing which one deserves to become official. Should it be a noun meaning "A medical condition(subset of sepsis) resulting from unsafe -- unnecessarily so -- back alley abortions as a result of the 'Stupak Amendment' to the 2009 Health Care Reform Bill"? An adjective meaning "imposing religious beliefs of one group on another, especially through legislation or financial pressure"? ("You thought that forcing schools to teach creationism was stupak? How about forcing poor women into back alley abortions? That's the stupakest thing I've ever heard.") Or a verb meaning, "To do something ridiculous, silly, moronic, stupid, asinine, idiotic, etc."? ("Wow you really stupaked that Health Care bill in the House.") I can't decide, so for now, let's just say the Democrats have really stupaked us with this stupak amendment, and when the stupak restrictions on funding for legal medical services cause women to die of stupak, it'll be on their heads.
The abortion doctor
Susan Wicklund has received death threats and worn a bulletproof vest to work. But what really scares her, she writes in "This Common Secret," is the war on reproductive rights.
By Eryn Loeb, Salon
How abortion changed the world
From a sketchy underground doctor to the American fight against communism, a look at the unlikely forces that helped spread global family planning.
By Michelle Goldberg, Salon
What's wrong with the new pro-lifers
The progressive anti-abortion movement still doesn't truly value the life and identity of the mother.
By Frances Kissling, Salon
Is there a next generation of abortion providers?
As if the threat of violence and divisive politics weren't enough, getting trained is almost impossible.
By Kate Harding, Salon
When abortion was a crime
Reagan, an assistant professor of history, medicine and women's studies at the University of Illinois, dedicates her disturbing work on abortion in America before Roe v. Wade to "the lives of... women who died trying to control their reproduction."
The abortion debate
An incredibly interesting debate that looks at both the pros and cons of abortion from a secularist viewpoint.
Scientology Accused of Forced Abortions, Crimes in Oz
RNC Ditches Employee Abortion Coverage 
Did Health Reform Have To Come At the Cost Our Rights?
The Stupak Effect on Women's Health