Does a “War on Women” Really Exist? A View from the State Trenches
I enjoy reading George Will for a variety of reasons but I don’t often agree with him. He commented on “This Week” that the genesis of the ballyhooed war on women really boiled down to a 30- year old unemployed graduate student (Sandra Fluke), upset because her Catholic institution wouldn’t buy her birth control.
But something that approximates a “war” in the sense that it is a prolonged, organized, campaign of consequence does exist.
It’s not exactly a war on women, because many of the combatants on the other “side” are women themselves. This is awkwardly inconvenient for us liberals and feminists, but true. I’ve written before about the lumbering but apparently unmentionable reality of zealous female social conservatives.
Maybe it’s more accurately described as a war against social modernity, against 20th-century gains that women, and men, enjoy because of movements for equality and liberation. These gains include access to abortion, birth control, modernized ideas of marriage, educational and workplace equality, no-fault divorce laws, tolerant views toward homosexuality and non-procreative, non-marital sex, and a more expansive definition of sexual violence and harassment.
And this is trench warfare. It happens in state legislation, by state legislators and activists. Fluke has little to do with it.
The Alan Guttmacher Institute released an invaluable report that inventories state legislative activity last year concerning abortion and reproductive rights.
They find a “troubling” pattern that more states (26) are “hostile to abortion rights,” as the middle- ground states (9) shrink, with only a core of “consistently supportive” states in the northeast and on the West Coast.
The implications of this shift “are enormous,” Guttmacher concludes. In 2000, the country was almost evenly divided, with nearly a third of American women of reproductive age living in states solidly hostile to abortion rights, slightly more than a third in states supportive of abortion rights and close to a third in middle-ground states. By 2011, however, more than half of women of reproductive age (55%)—and 15 million more than in 2000—lived in hostile states.
Guttmacher considered a state “supportive” of abortion rights if it had enacted provisions in no more than one restriction category (such as mandatory pre-abortion sonograms or burdensome waiting periods); middle ground if it had enacted provisions in two or three categories, and “hostile” if it had enacted provisions in four or more.
Of the 15 states that moved from one category to another, every one became more restrictive.
The pace of legislative activity has increased, too. In 2011, “states enacted a record-breaking number of new abortion restrictions.” In 2011 legislators introduced “more than 1,100 provisions related to reproductive health and rights,” and adopted 135. Sixty-eight percent (68%) of these laws are abortion restrictions.
When I read this report, I was intrigued by the 965 pieces of legislation that didn’t pass.
The legislative “outtakes” and the drafting-room floor seem a more accurate, cutting-edge gauge of where things are going, rather than where they’ve already arrived.
I visited the archives for a few state legislatures to find out. Mississippi caught my attention, because they seem to be a… “thought leader” in ways to subvert Roe and reproductive rights, especially after their infamous personhood amendment would have extended personhood rights to the moment of fertilization.
In the 2012 session Mississippi state legislators proposed 1,700 House bills and 1,035 Senate bills. Twenty-six (26) bills were introduced, and died in committee, that addressed abortion as well as statutory rape, covenant marriage, domestic violence, and other topics that seem relevant to the alleged war on women.
They’re worth summarizing by type, because they illustrate tactics in other states as well:
ESTABLISH “EMBRYO ADOPTION” PROGRAMS
Two bills [HB1318, HB1114] proposed to establish human embryo adoption opportunities and “legal embryo custodians.” But, embryo “adoption by couples of the same gender is prohibited.”
REQUIRE GREATER PARENTAL INVOLVEMENT AND CONSENT
Three proposed laws would have toughened parental involvement and consent requirements for young women seeking abortions. Depending on the patient’s family situation, these laws could have serious deterrent effects. HB1467 would have required that parental consent for minors be notarized, and kept on the minor’s medical file for a “minimum period of time,” not specified; HB1481 would have revised and toughened parental consent standards, and SB2664, the “Parental Involvement Enhancement Act,” struck me as an especially pugnacious bill. It proposed to “protect minors against their own immaturity” in not comprehending the consequences of abortion by “fostering family unity and preserving the family as a viable social unit” through involving parents and protecting “the constitutional rights of parents to rear children.”
EXTEND PERSONHOOD AND “UNBORN CHILD” RIGHTS TO FETUSES AND ZYGOTES
Mississippi’s dead-in-committee HB857 was a self-explanatory “Pain-Capable Unborn Child Protection Act.” This language is making the rounds in other state legislatures. The bill argues that fetuses can experience pain early in the first trimester and therefore require legal protections.
Two similar state constitution amendments (HC61 and SC574) would have stipulated that “personhood” begins at conception, and constitutional protection for the “life of an unborn child.”
RESTRICT PHARMACEUTICAL ABORTIONS
HB790 would have required that RU486 be used in the same room with a physician (thereby undercutting its benefits of privacy and convenience), and what I interpret to be subtly intimidating requirements that the incident be recorded in the patient’s permanent medical record. HB1378 similarly would have imposed safety restrictions, with an “Abortion-Inducing Drugs Safety” act.
INCREASE REQUIREMENTS ON ABORTION PROVIDERS
Three bills [HB1390, HB1458 and SB2088] would have mandated that abortion providers have admitting privileges at a local hospital, and/or that they be board-certified in OB-GYN. This would be especially onerous, I imagine, in states that have only one abortion provider who might travel hundreds of miles to perform abortions on one day of the week.
PROHIBIT ABORTIONS AFTER A “FETAL HEARTBEAT” IS DETECTED
See HB1196, SB2427 and SB2692.
MANDATE PRE-ABORTION SONOGRAMS
HB1107 would have required a pre-abortion sonogram and a verbal explanation of that sonogram. The more detailed the picture, the better, so that it shows “organs, external members” and is of industry-established quality. The abortion provider would have been charged with detailing the medical risks of abortion (but not of childbirth, presumably), the assistance benefits that might be available for prenatal care and childbirth, and informing the woman that the father is liable for child support. The doctor would also have to be a certified sonographer, and “make audible the heart auscultation of the unborn child.”
The woman has to listen and sign a detailed form that she listened—that is, unless she shows that she is pregnant as a result of “sexual assault” or that her child has an “irreversible medical condition.” Having not been impregnated through consensual sex that she might have invited or enjoyed, she is exempt from this manipulative process.
MAKE IT POSSIBLE TO SUE ABORTION CLINICS
HB1479 would have established that abortion clinics are a proper party for malpractice action. This legislation would weaken abortion from the supply side by making it riskier for providers.
ALLOW DOCTORS NOT TO PROVIDE CONTRACEPTION OR ABORTION SERVICES
A “Health Care Rights of Conscience” bill (HB856) speaks obliquely to Georgetown and fears about Obamacare. It would have stipulated that a health care provider “has the right not to participate…in a health care service that violates his or her conscience,” whatever that conscience may be (although it prohibited discriminatory applications of conscience against groups based on race and other protected categories).
AMEND STATE CONSTITUTIONS
Anticipating a post-Roe world, Mississippi considered two state constitutional amendments to hit the ground running by declaring that “the right to abortion is not constitutionally protected” (HC80) and that “the Constitution shall not be construed to grant any person the right to choose an abortion” (HC83).
The war on social modernity is more than birth control and abortion. Mississippi legislators also introduced bills to:
According to Guttmacher, Idaho and Indiana both moved from “middle-ground” to hostile from 2000 to 2011. Both states have proposed legislation similar to Mississippi. Idaho includes a joint memorial to urge passage of the “rights of conscience” act that insurers needn’t provide coverage inconsistent with their beliefs, and a bill to establish that insurers in disability insurance programs needn’t cover “abortificants,” contraception or sterilization services (H0530; HJM010).
An Arizona legislator proposed earlier this year that business owners shouldn’t have to cover birth control in their insurance offerings unless the employee can produce evidence that it’s for a “medical” reason.
Indiana legislators are also considering a bill (SB0341) to require that abortion providers offer written materials about abortion to pregnant women—and they would charge the provider for the printing and distribution costs of these materials. These moves raise the cost, risk and inconvenience of providing abortions.
Activists in the solidly “supportive” states and middle ground states can propose legislation that pushes the envelope on reproductive rights, but these examples are rarer. They seem to be waging a war of position more than maneuver.
The principle tactic of the war, accurately-enough named, is among other things to continue to make Roe a dead letter with a death by a thousand cuts evisceration at the state level. It is to chip away at the legacies of women’s liberation.
To social conservatives—both men and women—these have been forces for destruction rather than progress. Those of us who have another view of modernization and women’s equality need to face that opposition squarely.
So I agree with George Will in part: One Sandra Fluke does not a war make. But the war is there. Its action is elsewhere, not in national political theatrics but in the trenches, both real and grim.