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Under Trump, a Decade of Anti-Abortion Momentum May Overturn “Roe”

With the judiciary stacked with Trump appointees, understanding anti-abortion tactics is key to fighting back.

A marcher holds a sign that shows the Statue of Liberty with tears running down her face during the Women's March in the borough of Manhattan in NY on January 18, 2020.

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Anti-abortion advocates have gained momentum in the last decade while perfecting their tactics in an effort to turn over the landmark Supreme Court decision in Roe v. Wade. With the appointment of Donald Trump to the highest office in the land in 2016, those fringe advocates are now gaining key positions in government to enact their policies. But not all is lost, say Jessica Mason Pieklo and Robin Marty, authors of The End of Roe v. Wade: Inside the Right’s Plan to Destroy Legal Abortion. This pivotal abortion rights moment can tip the scales in favor of reproductive choice if we mobilize effectively.

Samantha Borek: The End of Roe v. Wade is a revisit of your 2013 book Crow After Roe. What was the shift from that moment to now that prompted going back to that work?

Jessica Mason Pieklo: For me it was the moment Justice Anthony Kennedy retired. The 2016 election was such a nightmare in so many ways, but in particular for how successfully anti-choice advocates really seized power. And not just by having one of their own as vice president, but by really being able to set an agenda across the branches of government. Suddenly we were seeing people Robin and I had been covering in the anti-choice movement for years appointed to key positions within agencies like Health and Human Services. That was a clear signal that the administration wasn’t just going to be anti-choice, it was going to be affirmatively and aggressively anti-abortion. But up until the moment Justice Kennedy retired, though, I still had a sliver of hope that the federal courts could function as a firewall for the most extreme restrictions. When Kennedy retired, that all changed.

Robin Marty: Plus, for me, End of Roe was an opportunity to show that all of the issues that we are talking about now didn’t just come from a vacuum — the groundwork was laid down as early as 2010 and 2011. But no one cared then, because it was just little states, red states. No one wanted to advocate around it until 2016 because there was no big national threat to abortion. This allowed us to show the threat was there from the beginning and maybe even could have been stopped before we reached this point if we had been able to get organized against it.

The book talks a lot about language used in anti-abortion efforts. Why is it important to understand how word choice and language is essential to anti-abortion tactics?

Pieklo: For a couple of reasons. First, legal abortion remains very politically popular! People largely support the right to abortion, even if for some folks it is a qualified right. That means that anti-choice lawmakers are by definition legislating against a popular political position. To do that successfully, you’re going to have to use some smoke and mirrors. How sympathetic is a “fetal cardiac pole activity abortion ban?” Would most people even know what that means? But a “heartbeat ban,” now that’s a piece of legislation a lawmaker can sell. And that’s exactly what they do. They sell these bills. And second, most of this legislation depends on junk science which also depends on the right frame. I will give the anti-choice movement credit in that they are very good about being very intentional at attacking fundamental rights.

Marty: And don’t forget, the anti-abortion lexicon exists to confuse the issue for both voters and politicians. There is no such thing as a “late-term abortion.” An anti-abortion activist will use it to refer to anything after the first trimester. A politician may be talking after 20 weeks. A provider would possibly be talking about-third trimester. To half of those people, a “late-term abortion” would refer to a fetus even before viability. To someone performing a termination, they’d likely be saying post-viability. How can we have a rational discussion — much less actually have legislation that can be held up in a court of law — when no one is even talking about the same point in gestation?

How have anti-abortion activists used conjectural legislation like Arizona’s House Bill 2443, which makes it illegal to seek an abortion based on race or sex, to undermine providers who would otherwise perform abortions? How has that contributed to the sort of “long game” anti-abortion advocates are playing with regards to overturning Roe v. Wade?

Pieklo: So much of the rhetoric around these restrictions is about advancing a narrative that neither patients who seek abortions nor doctors who provide them can be trusted when it comes to the decision to terminate a pregnancy, and reason-bans like Arizona’s are a perfect example of that. And we’re seeing this play out at the Supreme Court in June Medical Services v. Russo, where anti-choice advocates are attacking providers standing by, arguing that providers have a conflict of interest and thus can’t be trusted to bring challenges to abortion restrictions on behalf of their patients. The ability of providers to sue on behalf of their patients is precedent nearly as old as Roe v. Wade itself and now it might be reversed this summer. That’s the long game in a nutshell.

Marty: Then there is the idea that somehow these bans mean that they are “helping” protected classes. It allows them to try to claim they are advocating for the civil rights of marginalized people even though their restrictions themselves are having the biggest impacts on those communities that are from less privileged racial and economic groups.

What are “conscience clauses,” and how have anti-abortion activists used them to ramp-up their attacks on choice?

Pieklo: Conscience clauses actually serve a really important role in a diverse society! But like most things with the religious right, they’ve become weaponized and distorted. Conscience clauses used to refer to narrowly tailored exceptions to specific situations that allowed people of faith to avoid performing certain duties — like filling a prescription for hormonal birth control — without violating their faith or leaving the person needing their prescription filled [out of luck]. That’s changed so that now conscience clauses allow people to refuse service for very broad and specific reasons with no obligation to the person to whom service has been refused. This is on hyperdrive in the Trump administration, and the Roberts Court is, unfortunately, poised to bless these expansions and distortions of “religious liberty.”

Marty: They are the worst. The weaponization of religious belief — and basically only Christian religious beliefs — are in essence making a ruling class that is exempt from secular law. I honestly don’t know why more people aren’t terrified of this fact and out in the streets in fury.

What does the judicial landscape look like right now for pregnant people and pro-choice activists since the appointment of Neil Gorsuch and Brett Kavanaugh to the Supreme Court?

Marty: This is all you, Jess. All I have is, “everyone is screwed.”

Pieklo: Honestly, I don’t have much more than that! The federal courts are actively hostile to abortion rights from top to bottom now. The Supreme Court appointments are bad, without a doubt. But it is the one in four appellate judges that are Trump appointees that are really bad. It’s the fact that every judge nominated by Trump has had to clear a litmus test of being not just opposed to abortion rights, but eager to see Roe v. Wade reversed. We really have no choice but to push for systemic, structural change of the federal judiciary. Don’t just pack the Supreme Court, pack all the courts. And understand that while we are working on that structural change, it’s going to get really rough in the next couple of years.

There is a lot in this book to get angry or even discouraged about, from stories about bus drivers refusing to take patients to clinics because of suspected abortion, to the ways in which the judiciary and legislators paint abortion as an “unthinkable” and violent act on the record, but how is this moment also uniquely poised to tip the scales in favor of the pro-choice movement?

Marty: I get in so much trouble when I say that this is a good point for the abortion rights movement, but I really do believe it. Roe as a whole to me is a flawed decision because we don’t have a right to an abortion as much as a right to an abortion legally provided by a clinic or doctor. It doesn’t have to be like this, and I hope this opens up an opportunity to reexamine what the right to all pregnancy decisions should look like. In my other book, Handbook for a Post-Roe America, I talk a lot about the need for abortion to be a right that belongs to the person who is pregnant, and that the person has a right to terminate even if there is no clinic to provide that option. And yes, that should look like self-managed care, especially with the ease and safety of medication abortion. There will always be a very necessary place for clinics and doctors, and the right to have an abortion with aspiration or via [dilation and evacuation] or labor induction or whatever a patient and doctor decide should exist in a financially and physically accessible way, too. But a vast number of people could easily and would prefer to easily terminate at home, in private, using medicines. We need a legal system that lets that be an option.

This interview has been lightly edited for clarity.

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