Women’s reproductive rights: What’s at stake on Nov. 8?
By Amanda Horner
When talking about women’s reproductive rights in the context of the 2016 elections, the same things always come up, with U.S. Supreme Court appointments and overturning Roe v. Wade the most popular. However, the news media have failed to tell us that these things are really of little relevance to the reality of women’s reproductive rights.
First of all, let’s look at the appointment of U.S. Supreme Court justices. President Barack Obama’s attempt to nominate Merrick Garland to the Supreme Court in 2016 was blocked by the Senate’s refusal to even consider the nomination. This quickly became a heated subject of partisan media and a highly talked-about topic on the campaign trail. The debate has centered on what kind of justice each candidate would nominate to the U.S. Supreme Court.
Professor Sara Schiavoni, a political science professor at John Carroll University, says the problem with all the attention being focused on the Supreme Court is that people don’t recognize that the SCOTUS rarely makes decisions that affect women’s reproductive rights in a way that could be felt as an individual.
With Supreme Court as it is now (that is, with one vacancy), it would be nearly impossible for Roe v. Wade to be overturned as a result of a single appointment to the court, according to Schiavoni. This is because Justice Antonin Scalia, who died in February leaving the current vacancy on the court, was always counted on as a dissenter to Roe v. Wade. Thus, even if he were replaced with another conservative justice, the court would still be balanced so that Roe v. Wade would be upheld.
Furthermore, even if Roe v. Wade were at risk, abortion could be made effectively illegal through state-specific legislation that makes it nearly impossible to obtain a safe abortion.
This existence of this power at the state level means the appointment of “pro-life” versus “pro-choice” justices to the U.S. Supreme Court really matters little. What really counts are the lower courts, Schiavoni explained in an interview, that because “district court judges are…on the ground, they address these issues first” and “then the legislation gets appealed, there’s a ruling by the district court, then the court of appeals gets involved, and this is where you have the TRAP laws coming out of Texas.”
What are TRAP laws? How do these laws get passed, and what is the effect on women’s reproductive rights? Actually, the TRAP laws–also known as the Targeted Regulation of Abortion Providers laws–are only one way that pro-life advocates have attempted to circumvent the legality of abortion. While overarching “personhood” laws (regarding the legal status of an embryo as deserving the same rights as a born person) gain more attention, the laws that have the most effect on women’s reproductive rights are the ones that seek to impose regulations on abortion providers, which make it almost impossible for them to operate.
According to the Guttmacher Institute, 231 state-specific abortion regulations have been passed in the U.S. since 2010. Some of the regulations require that procedure rooms must be a certain size, corridors must be a specific width, abortion providers must be within a set distance from a hospital, and doctors must have admitting privileges at local hospitals. Pro-life politicians have also sponsored state legislation that requires a pregnant woman to view an ultrasound, undergo a waiting period before being allowed to receive an abortion, and laws that ban abortions outright after 20 weeks. According to the Los Angeles Times, these “TRAP laws are designed to fly under the radar by mimicking ordinary health regulations” and use regulation to require renovations to abortion clinics that are prohibitively expensive.
The purpose of going into detail about these state-specific abortion regulations is not to pass judgement on the motives of those policy makers and advocates who support them, but rather to demonstrate that voters should be aware of the importance of the lower courts and the decisions they have the power to make regarding women’s reproductive rights.
Another important part of this election that hasn’t received much coverage is that whoever is elected president will be responsible for nominating many lower court judgeships, and as Schiavoni said, “When you have 13 percent of the bench of lower court judgeships vacant, that’s a huge impact.” It’s also important for voters to understand this fact, because if you have a candidate who vows to appoint pro-life or pro-choice judges to all of the vacant judgeships, it can have a far more significant effect on the reality of women’s reproductive rights than one Supreme Court appointment.
What does this all mean in the context of the 2016 elections? The political coverage of women’s reproductive rights in the presidential race have been focused on sensationalized sound bites, as the coverage of candidate policy plans was tuned out in favor of more entertaining reportage. Yet the two major-party presidential candidates do have substantive positions on this issue, and they are worth delving into.
Hillary Clinton and her vice presidential running mate, Tim Kaine, have been consistently pro-choice. While Kaine is viewed as a moderate Democrat, in that he has said he is personally opposed to abortion but believes that the government should not interfere in women’s health and reproductive decisions, he is aligned with Clinton and the Democratic party’s stance on abortion. On Clinton’s website as well as on the campaign trail, she has vowed to fight to keep Planned Parenthood funded; repeal the Hyde amendment, which prohibits the use of federal funds for abortion except to save the life of the mother or in cases of rape or incest; promote sexual education in schools; and protect the Affordable Care Act.
Donald Trump hasn’t been as clear on his position on abortion, however he maintains that his current pro-life stance is a firm one that he has had for a long time. While he was quoted saying that he is very pro-choice in an interview with Tim Russert in 1999, he also made headlines when he stated during an interview with Chris Matthews on March 30 of this year that he believes there “has to be some form of punishment” for women who undergo an abortion. After the statements went viral, he walked back what he said during the interview, instead sending out a tweet declaring, “The issue is unclear and should be put back into the states for determination. Like Ronald Reagan, I am pro-life with exceptions, which I have outlined numerous times.”
The opinion of Trump’s vice presidential running mate on this issue is possibly more substantive, as Pence has a strong record of voting against abortion in the House of Representatives. During Pence’s time as a politician in Indiana, the state became one of the hardest in which to obtain an abortion, and when he was chosen as Trump’s running mate, it was obvious that his extreme stance on abortion would lead to controversy.
Media coverage of the primary candidates has relied on dramatic, controversial sound bites, with the press parroting quotes on Trump’s punishing women, Pence’s “long[ing] for the day that Roe v. Wade is sent to the ash heap of history,” and Hillary’s radical support for “partial-birth abortion.” When the news media choose to cover only these kinds of stories, they propagate the idea that these are the stories that matter.
So why is so much of the public willing to accept the idea that there’s no way to have “moderate” positions on this issue? Professor Elizabeth Stiles, a political science professor at John Carroll University who specializes in mediating institutions such as governments, social movements, and organizations, helped shed light on why this issue is so polarizing, yet full of technical “gray areas.” She spoke in an interview about how “we have this individualist culture in the U.S.” that makes pregnancy a fascinatingly complex scenario for lawmakers. “We end up arguing about ‘Is this a fetus? Is it a person? Is it viable, not viable?’ ” when “that’s not really what we’re asking.”
Stiles went on to clarify that, in the case of pregnancy, “This is not an individual. At some point, there’s two people in there.” While she acknowledges the complexity of when the two people begin to exist, Stiles expertly simplified the positions of either side of this issue when she said “I’m saying that it’s not an individual, ultimately, so how do we think of it? The pro-life movement has chosen to focus on the fetus and the baby, and the pro-choice movement has chosen to focus on the woman.”
Faced with the question of why she thought that there has been a recent flood of state-specific legislation and regulation targeting abortion, Stiles explained, “The social conservative movement really had two issues until four years ago: abortion and homosexuality. And now, same-sex marriage is legal in all states. … Marriage was this big, symbolic social issue, and that fight was sort of lost” by the social conservative movement, so they have turned their focus onto abortion regulation.
The renewed fervor of the pro-life movement was also partly because the sentiment against homosexuality and same-sex marriage was an issue that needed time, whereas across the generations, people young and old have intense, passionate opinions about abortion. According to Stiles, “When you look at it, public opinion on abortion hasn’t changed much over the years” and “when Roe v. Wade passed, that really galvanized the movement,” whereas the federal law allowing same-sex marriage effectively ended it, as it came with the shifting tides of public opinion.
Abortion in its many forms has existed for thousands of years. The earliest recorded proof of purposeful abortion can even be found dating as far back as 1550 BC, according to Martha Campbell’s 2002 book “History of Contraception.” What hasn’t existed for nearly as long is the politicized nature of it, and therefore, when considering what is at stake for women’s reproductive rights in the 2016 election, it is important to consult the history of this controversial issue. The regulation of abortion, abortifacients, birth control and contraceptives began with the Comstock Law, passed in 1873, which decreed that it was illegal to distribute abortifacients (substances that induce abortion) and contraceptives (and information about them) via the U.S. Postal Service. The country did not see any major changes until the landmark case of Roe v. Wade in 1973, which acknowledged that women have the right to make their own personal medical decisions without the interference of government, effectively legalizing abortion on a federal level.
Historically, state-specific abortion regulations are a recent phenomenon, which most notably occurred when control of overall state legislative action shifted in Republicans’ favor after 2010, when the GOP dominated the midterm elections at every level.
In 2010, the U.S. saw the largest swing of power in over a half century, when Republicans in the House of Representatives picked up 63 seats and took back the majority. They now control 69 of 99 chambers and 31 of 50 governorships—a fact that is relevant to reproductive rights because, after the Planned Parenthood controversial videos in 2015, conservatives sought to take away federal funds from Planned Parenthood health clinics, a measure which almost shut down the government. While this didn’t cause any new federal abortion laws, it renewed the fervor of anti-abortion opinion leaders and lawmakers on a global level, prompting the flood of new state regulations targeting abortion, a trend which had started in the 1990s and has really picked up since 2010.
When asked for an interview about women’s reproductive rights and the upcoming election, John Carroll’s Respect for Life Club made available the three men and one woman who are the executive board of the campus pro-life club: Anthony Shoplik, Sydney Kotoch, Justin Bryant and Tipton Woodward.
The four were asked to talk about when they formed a strong personal opinion about the issue of access to abortion, birth control and contraceptives. All the present members of the executive board agreed that their strong opinions about abortion stemmed from their Catholic upbringing. However, according to Shoplik, president of the Respect for Life Club, “faith started” his beliefs, but “science enhanced it.” His fellow board members agreed that, even if they weren’t religious, abortion would still be a “vital issue” for them.
The Respect for Life Club serves as the pro-life voice on campus, promoting the pro-life cause, which Shoplik describes as “something that looks at life as a seamless entity.” He added, “Life begins at the moment of conception, and ends at the moment of natural death,” therefore “abortion, euthanasia, the death penalty would all be things we are against.”
With regards to the 2016 election, the club’s executives said they want to remain apolitical and don’t believe that there are any current, popular candidates that represent their views, although they recognize what is at stake legislatively for their cause. Therefore, they acknowledge that when it comes to voting, it is important to elect people who will nominate pro-life judges to the U.S. Supreme Court, to achieve the sway required to undo current pro-choice court precedents, such as Roe v. Wade, and allow more pro-life legislation.
When confronted with the question “What could the next four years look like for women’s reproductive rights?” many things come to mind. Nevertheless, as the candidates and their vice presidential running mates have made their positions on women’s reproductive rights clear during their campaigns, the real significance lies in this simple fact: presidents appoint judges. They appoint judges to the United States Supreme Court, the Court of Appeals, and the District Courts, and this election is especially important because of the number of lower-level courtships that are vacant and would be filled by our next president. There are six vacant seats on the United States Court of Appeals, and 35 vacant seats on the United States District Courts, which means that the next president will nominate 41 total judges, which then have to be confirmed by the United States Senate.
These are the facts that voters should be armed with as they walk into their voting locations on Nov. 8. These are the facts that the mainstream media have failed to impart to voters. And this is only one of the ways in which they have failed the American voter during the 2016 election season.
