Justin's Political Corner

CHICAGO (AP) — U.S. Supreme Court Justice Ruth Bader Ginsburg says she supports a woman’s right to choose to have an abortion, but feels her predecessors’ landmark Roe v. Wade ruling 40 years ago was too sweeping and gave abortion opponents a symbol to target.

Ginsburg, one of the most liberal members of the nation’s high court, spoke Saturday at the University of Chicago Law School. Ever since the decision, she said, momentum has been on abortion opponents’ side, fueling a state-by-state campaign that has placed more restrictions on abortion.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

The ruling is also a disappointment to a degree, Ginsburg said, because it was not argued in weighty terms of advancing women’s rights. Rather, the Roe opinion, written by Justice Harry Blackmun, centered on the right to privacy and asserted that it extended to a woman’s decision on whether to end a pregnancy.

Four decades later, abortion is one of the most polarizing issues in American life, and anti-abortion activists have pushed legislation at the state level in an effort to scale back the 1973 decision. This year, governors in North Dakota and Arkansas signed strict new abortion laws, including North Dakota’s ban on abortions as early as six weeks into a pregnancy.

Ginsburg would have rather seen the justices make a narrower decision that struck down only the Texas law that brought the matter before the court. That law allowed abortions only to save a mother’s life.

A more restrained judgment would have sent a message while allowing momentum to build at a time when a number of states were expanding abortion rights, she said. She added that it might also have denied opponents the argument that abortion rights resulted from an undemocratic process in the decision by “unelected old men.”

Among the questions now is whether the justices will set a nationwide rule that could lead to the overturning of laws in more than three dozen states that currently do not allow same-sex marriage. Even some supporters of gay marriage fear that a broad ruling could put the court ahead of the nation on a hot-button social issue and provoke a backlash similar to the one that has fueled the anti-abortion movement in the years following Roe.

The court could also decide to uphold California’s ban — an outcome that would not affect the District of Columbia and the 11 states that allow gay marriage.

Ginsburg did not address the pending gay marriage cases.

h/t: TPM

Rival legal teams, well-financed and highly motivated, are girding for court battles over the coming months on laws enacted in Arkansas and North Dakota that would impose the nation’s toughest bans on abortion.

For all their differences, attorneys for the two states and theabortion-rights supporters opposing them agree on this: The laws represent an unprecedented frontal assault on the Supreme Court’s 1973 Roe v. Wade decision that established a nationwide right to abortion.

The Arkansas law, approved March 6 when legislators overrode a veto by Democratic Gov. Mike Beebe, would ban most abortions from the 12th week of pregnancy onward. On March 26, North Dakota went further, with Republican Gov. Jack Dalrymple signing a measure that would ban abortions as early as six weeks into a pregnancy, when a fetal heartbeat can first be detected and before some women even know they’re pregnant.

Abortion-rights advocates plan to challenge both measures, contending they are unconstitutional violations of the Roe ruling that legalized abortion until a fetus could viably survive outside the womb. A fetus is generally considered viable at 22 to 24 weeks.

“I think they’re going to be blocked immediately by the courts — they are so far outside the clear bounds of what the Supreme Court has said for 40 years,” said Nancy Northup, president of the Center for Reproductive Rights.

The center will be leading the North Dakota legal challenge and working in Arkansas alongside the American Civil Liberties Union’s state and national offices. Both Northup and ACLU lawyers say they have ample resources to wage the battles, and they expect victories that would require their attorneys’ fees to be paid by two states.

Dalrymple, in signing the ban, acknowledged that its chances of surviving a court challenge were questionable, but said it was worth the eventual price tag — at this point unknown — in order to test the boundaries of Roe.

North Dakota’s attorney general, Wayne Stenehjem, initially said lawyers from his office would defend any lawsuits but is now considering hiring outside help. His office is working on a cost estimate for the litigation that could be presented to lawmakers soon.

“We’re looking at a sufficient amount to adequately defend these enactments,” Stenehjem said.

A lead sponsor of the Arkansas ban, Republican state Sen. Jason Rapert, said threats of lawsuits “should not prevent someone from doing what is right.”

He contended that the ban had a chance of reaching the U.S. Supreme Court through the appeals process and suggested that the victory predictions made by abortion-rights lawyers amounted to “posturing” aimed at deterring other states from enacting similar bans.

In both Arkansas and North Dakota, the states’ lawyers will be getting pro bono assistance from lawyers with Liberty Counsel, a conservative Christian legal group.

Mathew Staver, the group’s chairman, said supporters of the bans were resolved to fight the legal battles to the end, and issued a caution to the rival side.

“They ought to hold off on their celebrations,” he said. “The cases have a long way to go through the court system.”

The North Dakota ban is scheduled to take effect Aug. 1, along with two other measures that have angered abortion-rights backers. One would require abortion providers to have admitting privileges at a local hospital, the other would make North Dakota the first state to ban abortions based on genetic defects such as Down syndrome.

The Center for Reproductive Rights is reviewing its options regarding the latter two bills, but definitely plans to challenge the 6-week ban before Aug. 1. Northup said her team is pondering whether to file suit in state court or U.S. district court.

In Arkansas, where the 12-week ban would take effect 90 days after the end of the legislative session, abortion-rights lawyers plan to file their challenge in federal court within the next few weeks.

Bettina Brownstein, who will be representing the ACLU of Arkansas in the case, said the U.S. district court with jurisdiction over Little Rock had issued rulings in past abortion-related cases that gave her confidence of victory this time.

“Eventually it could go to U.S. Supreme Court on appeal, but that would take a while, and they may not want to hear it,” she said. “It’s a question of how much money the state wants to spend.”

Northup chided officials in both Arkansas and North Dakota for their willingness to spend taxpayers’ money on difficult and divisive legal cases.

“It’s important that the citizens of those states realize that every dollar spent to defend blatantly unconstitutional laws is taxpayers’ dollars wasted,” she said.

Attorneys’ fees for the upcoming cases are impossible to estimate at this stage, but Northup said her organization received $1.3 million in fees from Alaska after that state lost a recent case regarding an abortion-related law.

The last few years have been intensely busy for the Center for Reproductive Rights, the ACLU and other abortion-rights legal groups as Republican-controlled legislatures have enacted scores of laws seeking to restrict access to abortion. At least two dozen such measures are currently the target of lawsuits, said Northup, who vowed that her organization “will not let unconstitutional laws go unchallenged.”

Some of the recent laws place new requirements on abortion clinics, others require abortion providers to perform certain procedures or offer state-mandated counseling before an abortion can take place.

At least 10 states have passed bills banning abortions after 20 weeks of pregnancy on the disputed premise that a fetus can feel pain at that stage. One of those laws, in Idaho, was struck down by a U.S. district judge on March 6, while the laws in Georgia and Arizona have been temporarily blocked by judges pending further court proceedings.

Abortion-rights advocates, while eager to defeat the new bans in North Dakota and Arkansas, worry about the impact of the broader surge of restrictions.

“I don’t believe these bans are going to take effect, but the danger is that they make the other laws look reasonable,” said Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project. “The ultimate goal is to take this decision away from a woman and her doctor and give it to the politicians.”

One of the most frequent targets of the anti-abortion laws is the Planned Parenthood Federation of America, which — in addition to providing a range of other health services — is the nation’s leading provider of abortions.

Planned Parenthood’s president, Cecile Richards, said she found it frustrating that women “continue to be a political punching bag.” But she saw an upside to the wave of anti-abortion legislation: more members and more donations for her organization.

“These attacks have served to energize our supporters,” she said. “We’ve gained 2 million members in the past two years.”

There’s new energy on the other side as well.

The tough North Dakota laws have been welcomed by the protesters who gather weekly in Fargo outside the state’s lone abortion clinic.

Among those on hand for the latest protest at the Red River Women’s Clinic was Scott Carew, 50, who had brought two anti-abortion posters nailed to pieces of wood.

“Certainly, we’re proud of the governor standing up for life,” Carew said. “We’re going to keep standing up for life until we can’t stand up anymore.”

H/T: Yahoo! News

ALMOST AS SOON AS THE U.S. SUPREME COURT made women’s access to abortion a constitutional right in Roe v. Wade, the Senate passed the first “conscience clause” allowing private (largely Roman Catholic) hospitals receiving federal funds to refuse to provide abortions or sterilizations on “the basis of religious beliefs or moral convictions.” Over the years, antichoice forces have won more “conscience clauses,” allowing health care professionals like pharmacists and physicians to refuse care based on their own religious or other beliefs. 

These same struggles reverberate through the effort to expand health care coverage in the Affordable Care Act (ACA). To try to secure votes from antichoice Democrats, President Obama issued an executive order that reinforced and expanded the legal reach of the 1977 Hyde Amendment, barring federal funding of abortions except in the case of rape, incest, or when the life of the woman would be endangered. It outlined new legal protections for health care facilities and providers who are unwilling to provide, pay for, provide coverage of, or refer people to abortion care. Finally, the executive order prohibits tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges beginning in 2014. In the end, the ACA passed with only Democratic votes in favor of the law and zero support by Republicans. 

Although most reproductive justice advocates agree that the landmark Patient Protection and Affordable Care Act provides unprecedented gains for women’s health by ending discrimination based on pre-existing conditions, expanding Medicaid eligibility, and requiring contraceptive coverage, the antichoice Right’s long term work to dismantle abortion remains effectively intact. And as reproductive justice advocates also argue, if reproductive healthcare is compromised for low-income women, often women of color, by encroaching funding restrictions, we cannot even begin to claim we’ve achieved comprehensive healthcare coverage for women. 

As researcher and activist Jay Michaelson shows in this report, a coalition largely made up of Roman Catholic elites and right-wing evangelicals continues its battle to undermine the promise of the Affordable Care Act by pushing for an even broader realm of religious exemptions in the name of defending religious liberty. Michaelson names the key intellectuals, Religious Right organizations, such as the U.S. Conference of Catholic Bishops, and legal groups, like the Becket Fund, that are working together to advance a discriminatory agenda that would allow employers to put contraception coverage out of reach of their employees. 

 The Religious Right, writes Michaelson, is working to redefine existing constitutional protections of freedom to (and from) religion to mean the right of conservative Christian individuals and businesses to practice discrimination otherwise prohibited by law. That means, for instance, expanding exemptions to allow major companies, like the craft-store giant Hobby Lobby, to refuse contraceptive coverage in its employee healthcare plans. With 525 stores in 42 states, Hobby Lobby’s founder David Green is a substantial employer; the Becket Fund is representing the company in court. 

To date, according to this report, there are 49 pending cases, many represented by the Becket Fund, of companies and nonprofits—including universities—claiming that observing the contraceptive coverage requirement is a violation of their religious liberty.  

Finally, the right-wing campaign peddles propaganda rich with misinformation about the health care law, scaring small business owners and attempting to create public sympathy for multimillion dollar companies like Hobby Lobby. 

In unpacking the Right’s sophisticated campaign to redefine religious liberty, Michaelson shows how reproductive justice and the LGBTQ community are just the Right’s latest targets of old fashioned discrimination—excused on religious grounds. As in the age-old debate about prayer in schools or the display of crèches on public land, the Right inverts who is the oppressor and who is the victim. 

“The Christian Right turned antidiscrimination arguments on their heads,” he writes. “Instead of public prayer oppressing religious minorities, Christians are being oppressed by not being able to offer them.” We should not be fooled when women’s and LGBTQ rights are at stake. 

POLITICAL CONSERVATIVES SEEM TO HAVE FOUND A POTENT ARGUMENT in current debates about LGBTQ equality and reproductive health when they claim that their religious liberty is threatened. The potency comes not from the truth or validity of this claim, but from the fact that such a claim puts progressives into a quandary. Religious liberty is one of the most cherished values of American society, and progressives esteem this principle no less than conservatives do. As a result, progressives often tread too delicately in this area, for fear that they will be forced to choose between falsely competing values of liberty and equality.

This dilemma becomes exacerbated if, like me, you are a progressive person who strongly identifies with a faith tradition. As a Catholic who works for LGBTQ equality, my loyalties to faith and justice sometimes pull me in opposite directions when the argument for religious liberty is raised. As a practicing Catholic, I want to be sure that the government is not going to interfere with my church’s ability to govern itself. As an advocate for LGBTQ issues, I want to make sure that equality is served. 

Added to this dilemma is the uncomfortable knowledge that my church’s bishops are often the ones sounding the alarm for religious liberty, and often in spurious ways. 

With the appearance of Jay Michaelson’s report, “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” these tense internal tugs of war between liberty and equality and between faith and justice have been greatly ameliorated. With fairness and precision, Michaelson documents how arguments for religious liberty have been manipulated to play on the fears and values of both conservatives and progressives, as well as people of faith and secularists. His analysis clears a path through the morass of contradictory allegiances that many people experience when the question of religious liberty is raised. 

This report serves as a primer for all interested in the many intricacies surrounding the religious liberty debates. Legal, political, and religious observers alike will benefit from the succinct history, the objective reliance on facts and data, and the analysis of how arguments are constructed, and how they can be refuted. Advocates will learn strategies to engage in debate in intelligent, compassionate, and effective ways.

Michaelson is uniquely positioned to report on this matter. With a Ph.D. in Jewish Thought from Hebrew University and a J.D. from Yale Law School, he offers a perfect bridge between the worlds of religion, politics, and jurisprudence that impact the religious liberty debate. As the founder of the Tibet Oral History Project, which records the testimonies of Tibetan victims of the Chinese Occupation, Michaelson is certainly not a stranger to the personal and political realities of religious and governmental entanglement and oppression.

His dual background in law and religion brings a depth to this report which is missing from many other discussions of the topic. Most refreshing and inspiring in Michaelson’s report is that he maintains a balance of a deep respect for religious leaders and tradition—and, indeed, their liberty—while also deeply valuing the civil liberties tradition of American history and culture. His analysis is a reminder that the goal of this debate is not to have a victor and vanquished, but to build an American society where honesty, fairness, and equality reign. 

Michaelson throws out the traditional binaries in this debate—religious vs. secular, conservative vs. progressive. The realities are much more complex than these categories can express. For example, not all religious people feel that their faith is threatened by policies which promote LGBTQ equality and reproductive health for women. In fact, for many religious people, it is indeed their faith which motivates their advocacy for these principles. So framing the debate as a war between church and state is not only inaccurate, but it also plays into the hands of proponents of the religious liberty argument who want to claim victim status. 

Similarly, those who espouse religious liberty arguments against progressive measures often fail to recognize that in doing so they are in fact trampling on the liberty of religious people who support such measures. Political conservatives are not the only ones whose religious liberty needs protection. No single religious leader speaks for all religious people. No single Christian leader speaks for all Christians. 

Not even does any single Catholic leader speak for all Catholics. Religious liberties of various faiths can sometimes conflict—one reason why this issue needs to be mediated by neutral parties.

Because of these complexities, Michaelson wisely advises supporters not to fall into the trap of demonizing religious people, many of whom, in fact, agree that religious liberty is not under attack by progressives. Demonizing serves no productive purpose and only feeds the opposition’s paranoia that they are being attacked. The religious liberty debate must be won on its merits, on the fairness inherent in the American value system, and not on alarmist rhetoric about secret and manipulative enemies. Both sides court peril when they seek to demonize.

Indeed, one of Michaelson’s most important recommendations from this report is that a faithbased response to the religious liberty argument is strongly needed to be part of this conversation. 

Such a response would not only prove invaluable strategically, but it would help to save religious groups from the worst elements within their ranks. For example, while Catholic leaders have been among the most vociferous proponents of the religious liberty argument, there are many Catholic thinkers who oppose this strategy because they uphold the lesser-known Catholic principle that an individual must ultimately be ruled by one’s conscience, not by the dictates of doctrine or authorities. 

A faith-based response to religious liberty would help to unearth the hidden gems within faith traditions which value conscience, equality, and justice. Such resources are needed to arrive at faith-based answers to the question of religious liberty, which will coincide with our American political tradition. 

The evident power and strength of the advocates of the religious liberty argument indicate that this debate will continue to be part of our national conversation for a long while to come. Michaelson’s contribution can reshape the landscape of the debate so that the civil rights of individuals and our heritage of religious liberty do not have to be opposed, but can live in harmony and mutual support of each of these important traditions. Both religious and secular leaders will find his report an important tool in their work to build a nation where liberty, equality, and justice interact to protect all people and institutions.

Francis DeBernardo

Executive Director, 

New Ways Ministry

March 2013

A HIGHLY ACTIVE, WELL-FUNDED network of conservative Roman Catholic intellectuals and evangelicals are waging a vigorous challenge to LGBTQ and reproductive rights by charging that both threaten their right-wing definition of “religious liberty.” 

The Christian Right campaign to redefine “religious liberty” has been limiting women’s reproductive rights for more than a decade and has recently resulted in significant religious exemptions from antidiscrimination laws, same-sex marriage laws, policies regarding contraception and abortion, and educational policies. Religious conservatives have succeeded in reframing the debate, inverting the victim-oppressor dynamic, and broadening support for their agenda.

While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. 

In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them. 

In the “religious liberty” framework, the Christian Right attacks access to contraception, access to abortion, same-sex marriage, and antidiscrimination laws—not on moral grounds (e.g., that contraception is morally wrong or that LGBTQ rights violate “family values”) but because they allegedly impinge upon the religious freedoms of others (e.g., by forcing employers to violate their religion by providing contraception coverage). 

The nerve center of the conservative “religious liberty” campaign is a small group of conservative Roman Catholic intellectuals and scholars concentrated around the Becket Fund for Religious Liberty, a public interest law firm based in Washington, D.C., and the United States Conference of Catholic Bishops (USCCB).

Anthony Picarello, former counsel of the Becket Fund, left in 2007 to serve as USCCB’s general counsel to work against marriage equality. These Roman Catholic organizations are supported by conservative evangelical allies, including organizations such as the Alliance Defending Freedom, Christian Legal Society, and Family Research Council. These alliances were forged in the antichoice movement, which has provided strong turnout of supporters at “religious liberty” events. These alliances were expressed in the Manhattan Declaration, which launched in 2009 when 150 Roman Catholic and evangelical clergy signed a statement to defend “life, marriage and religious liberty.” Examination of these affiliations, history, and current activities makes clear that the campaign to redefine “religious liberty” aims not simply to win religious exemptions to the law, but to contest the authority of secular law itself.

 The conservative “religious liberty” campaign’s methods include:

• conducting a PR campaign to convince Americans that religious liberty is under attack and deploying misleading exaggerations to scare voters, for instance, by falsely claiming that churches will be required to sacralize same-sex weddings and employers forced to pay for abortions;

•  reframing questions of discrimination (e.g., in the Boy Scouts) as questions of the religious liberty of those who wish to discriminate;

• filing lawsuits to limit LGBTQ rights on religious liberty grounds and exploiting ambiguities in the law to conduct a nationwide litigation campaign;

• exploiting the structural ambiguity in civil rights law that emerges when fundamental rights clash, as that between religious expression and civil rights;

•  scaring the public by eliding the differences in legal standards between discrimination against LGBTQ people and discrimination against African Americans and other racial minorities, and suggesting that protections for the latter will be extended to the former; 

• influencing legislation to obtain exemptions from antidiscrimination laws, and enabling Christian organizations to discriminate (e.g. student clubs in the Virginia university system); 

• limiting access to reproductive health care, first through a series of religious exemptions for abortion and now by attempting to limit insurance coverage for contraceptives under the federal Affordable Care Act;

• attempting to expand existing religious exemptions beyond religious organizations to include private businesses (such as the retailer Hobby Lobby, the plaintiff in a prominent current case); and

•  marshaling the support of influential academics such as Douglas Laycock, a distinguished professor at the University of Virginia Law School who successfully argued a key religious liberty case before the U.S. Supreme Court for the Becket Fund, and longtime conservative Catholic campaigner Robert P. George of Princeton University, who was coauthor of the Manhattan Declaration and is a board member of the Becket Fund. They and other scholars provide intellectual leadership for the movement, both within the Christian Right and more broadly. 

The “religious liberty” campaign’s influence on contemporary politics and debate is increasingly visible. For example:

• It was a significant topic in the 2012 Vice Presidential Debate;

• It was the Christian Right’s primary argument opposing same-sex marriage in the North Carolina, Minnesota, and Maine ballot initiatives in the fall 2012;

• The Ethics and Public Policy Center in Washington D.C. is developing religious liberty caucuses in state legislatures to promote the Christian Right public policy agenda opposing LGBTQ and reproductive rights (At least nine states currently have such caucuses); 

• The conservative “religious liberty” argument has been instrumental in winning exemptions from same-sex marriage laws and reducing women’s access to contraception coverage;

• While a June 2012 survey by the Public Religion Research Institute found only 39 percent of Americans believe religious freedom is threatened, polls also show the argument is effective when the Right sows confusion among the public; for instance, in suggesting that ministers would be forced to marry LGBTQ couples if a state legalizes same-sex marriage. 

Aside from its power in legal arguments, the Right’s “religious liberty” claims appeal to both conservative and moderate Christians by resonating with core martyrdom and persecution narratives. Moreover, among Roman Catholics, it resonates with the memory of Protestant separationists’ anti-Catholicism; among moderates, it resonates with the American civic value of religious freedom. Finally, the Right’s “religious liberty” arguments have won intellectual respectability even among some liberals. Unlike the Christian Right’s usual claims, grounded in religious dogma, the conservative “religious liberty” argument appeals to liberal values enshrined in the Constitution and has the support of respected academics. Liberals may support many of these “religious liberty” causes and key players in the campaign to redefine religious liberty—such as the Becket Fund—have litigated in defense of Muslims as well as Christians. And there is a strong popular appeal to some basic arguments; after all, few want to abridge religious freedom.

Yet there should be no mistake: the Right’s “religious liberty” campaign is a key front in the broader culture war designed to fight the same social battles on new-sounding terms, and is part of a movement with old roots in Christian Dominionism (a form of theocracy) and ties to conservative Catholics who launched the antichoice movement. Its deliberate inversion of victim-oppressor dynamic has led to limits on women’s and LGBTQ people’s real freedoms in the name of defending chimerical ones. Proponents may sincerely believe that they are defending religious freedom, but the campaign’s endgame is a “Christian nation” defined in exclusively conservative terms. And it is thus far inadequately opposed.

ALTHOUGH THE CURRENT APPLICATION of right-wing “religious liberty” arguments to questions of institutionally provided health care and antidiscrimination laws is relatively recent, the deployment of the value by conservative Christians is not. This section describes the early history of religious liberty in American culture, and addresses the legal history of conservative “religious liberty” claims from then until now. 

In conservative rhetoric, the fight for religious liberty dates all the way back to the Pilgrims’ flight from England. To an extent, of course, this is true: not only were the Pilgrims religious refugees, but they were quite conservative as well, aiming to set up not a pluralistic society where all could worship as they wished, but a specific theocratic society, apart from the England that oppressed them. In both popular and scholarly texts today, conservatives see themselves as heirs to these religious dissenters and seek to restore an older, better, more religious United States that, in their view, the founders intended.

The sense in books such as Donald Wildmon’s Speechless and David Limbaugh’s Persecution is that “Christians”—by which is meant conservative Roman Catholics and evangelical Protestants—are now the persecuted minority. 

The actual history is somewhat different. As told by Sarah Barringer Gordon in The Spirit of the Law, from the 1770s through the 1840s, the establishment and free exercise clauses of the First Amendment did not apply to the states, and the exercise of minority religious practice was sharply curtailed by state and local governments. In 1787, six of the original thirteen states had official, established churches, though all had disestablished them by 1833. Religious liberty was simply not a matter of federal protection or concern, and as a result, minority religious practices were often suppressed. 

From the 1840s until the 1930s, a middle period reigned. While mainstream religious practices would be protected by courts and the federal government, it was clear that states had the “police power” to punish religious dissent (blasphemers, experimental religious groups, etc.) and neither the Supreme Court nor the federal government did much to protect religious minorities—the primary case in point being the Mormons, who were persecuted in several states as they traveled across the country. The 1879 Supreme Court decision in Reynolds v. United States (later overturned) is instructive: “While laws cannot interfere with mere religious belief and opinions, they may with practices.” This dictum shows how distant the historical reality was from religious liberty rhetoric. Evangelicals, too, had their freedoms curtailed during this period. Forgotten today, the Salvation Army’s original mission was indeed salvation; in a period of declining church attendance, they held huge outdoor parades, revivals, and rallies in the late 19th century. These ran afoul of local nuisance laws, and Salvation Army figures were often jailed and beaten. Unlike the Mormons, they had some success in obtaining judicial relief, and were arguably the first conservative religious group to prevail on the grounds that their religious liberty was being impaired by secular governmental action. Overall, however, constitutional protection of religious liberty was limited to mainstream religious activities until the 1930s.

Because the subsequent seven decades of this history has been shaped by crucial Supreme Court cases, we will now examine three of those cases as a lens through which to view the history as a whole. 

BARNETTE

The notion that the U.S. Constitution protects all religious liberty is really a creation of the last 80 years, and the result of the work of marginal religious groups, not mainstream ones. Chief among these were the Jehovah’s Witnesses, who refused to salute the flag or recite the Pledge of Allegiance, a controversy that reached fever pitch in the 1930s and 1940s. Initially, in 1940, the Jehovah’s Witnesses lost in the Supreme Court, which held (8-1) that the state’s interest in teaching patriotism trumped the Witnesses’ religious freedom interests.36 This opinion was overturned only three years later, in 1943’s West Virginia State Board of Education v. Barnette opinion, now seen as a landmark case for religious liberty, though in reality it rested on free speech grounds (i.e. that no one could be compelled to recite the pledge). 

Barnette ushered in protections against compulsory secular expression. Yet it was followed by cases which ushered in protections against potentially coercive compulsory expression of religious views. For example, the bête noire of the Christian Right is Engel v. Vitale, the 1962 case that ushered in the contemporary period of separationist jurisprudence and outlawed state-sponsored prayer in public schools, even nonsectarian and noncompulsory prayer. Subsequent cases such as Wallace v. Jaffree (1985), banning moments of silence, and especially Lee v. Weisman (1992), banning clergy-given prayers at graduation, convinced many traditionalists that there is a secularist war against Christianity. Really, however, they are but the complement to Barnette: religious acts may not (usually) be restrained, yet they may not be compelled either. Indeed, the irony of today’s conservative “religious liberty” campaign is that the same logic of these much-loathed cases is now being applied to Christian religious “dissenters.”

BOB JONES

The most important case for contemporary “religious liberty” claims and the Christian Right itself is the Bob Jones University v. United States case, decided in 1983. This was a controversial case at the time, inspiring countless legal and academic articles, and, according to some accounts, was the most formative event in the creation of the Christian Right and the politicization of American evangelicals. Notably, Bob Jones University was part of a last ditch effort to maintain racially discriminatory institutions; then as now, the “religious liberty” in question was the liberty to discriminate against others.

The evangelical Bob Jones University had originally barred African Americans from admission. By the late 1970s, these restrictions had been relaxed, but the university still banned interracial dating on religious grounds. The United States Internal Revenue Service (first under President Nixon, though President Carter—an evangelical—is usually blamed by the Christian Right) revoked the school’s tax-exempt status, stating that a nondiscrimination policy was required for tax exemption. The Supreme Court agreed, stating that since the exemption was a privilege, it could only be obtained if one comported with law and public policy. Though the decision neither shut down Bob Jones University nor compelled it to change its policies, this perceived infringement on religious liberty fueled the contemporary Christian Right, and was hotly debated in the press.

The parallels to contemporary “religious liberty” cases are obvious, and the questions asked are the same: may the government compel religious institutions to adhere to the rule of law, or are religious institutions exempt from doing so? 

The school itself has now become a symbol: When George W. Bush sought to burnish his conservative credentials in 2000, he did so by giving a speech at Bob Jones University. Interestingly, this incident thrust the university back into the limelight, and it ultimately removed its discriminatory policy. 

And to this day, conservative legal theorists and Christian Right writers decry Bob Jones as a wrong decision. Moreover, the creation of such enclaves has only increased since, with the increase in home-schooling, Christian academies, and para-academic institutions such as Liberty University (associated with televangelist Jerry Falwell) and Regent University (associated with Pat Robertson). 

Bob Jones also prefigures the inversion of the victim-oppressor dynamic that marks contemporary “religious liberty” rhetoric. The real victims were Black students at Bob Jones—not the university. Today, the conservative “religious liberty” frame claims that the real victims are not gay students being bullied, women denied accessible health care, and nonreligious students coerced into participating in a religious ceremony. Conservative “religious liberty” rhetoric says that true victims are the university, the bully, the woman’s employer, and the graduation speaker who is not able to recite a prayer. Instead of a conflict between civil rights, this rhetoric focuses only on the rights of the person doing harm to another.

HOSANNA-TABOR

An important “religious liberty” case was decided in 2012: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

This case was argued by Douglas Laycock for the Becket Fund, and, in a 9-0 decision, the U.S. Supreme Court expanded the First Amendment’s “ministerial exemption” to employment discrimination laws, holding that churches and other religious groups must be free to choose and dismiss their leaders without government interference. It allows churches and some religious institutions to apply religious precepts in hiring and firing of ministers broadly conceived as including religion teachers—including, presumably, allowing employers fire LGBTQ people. The Wall Street Journal called it “one of [the] most important religious liberty cases in a half century.”

CURRENT STATE OF THE CONSERVATIVE “RELIGIOUS LIBERTY” MEME

As first described by Richard Dawkins, a “meme” is a unit of culture that replicates and perpetuates itself in different contexts. The conservative “religious liberty” meme has had just such a life. Henry Ford preached about a “war on Christmas and Easter” in 1921; Bill O’Reilly picked up the theme in 2005. In the mid-twentieth century, Roman Catholics described the separation of church and state as a Protestant war against Catholicism; in the twenty-first, Protestants and Catholics describe it as a secular war against Christianity. 

The contemporary use of this latest contemporary “religious liberty” meme evolved in the 1990s in crafting “conscience clause” exemptions to abortion access, and in response to the LGBTQ rights movement. The Acton Institute for the Study of Religion and Liberty, for example, was founded in 1990, and began publishing Religion and Liberty magazine in 1991. The earliest prominent use of the conservative “religious liberty” argument in the gay rights context appears to be the 1992-1996 fight over Colorado’s Amendment 2, which would have prevented any locality from enacting a gay rights ordinance.

In the subsequent court battle, which ended with the amendment being found unconstitutional by the Supreme Court, Colorado argued that one of the state’s interests in the amendment was protecting the freedom of religion. This appears to be the first time in which this argument, familiar from the contexts described above, was applied to questions of gay rights. It was also apparently the first time when religious exemptions to gay rights laws were mentioned in a court opinion, when the Colorado Supreme Court suggested they would be a better remedy for religious freedom concerns. Outside of these contexts, one does not find such arguments made in the contexts in which we find them today until the last decade. For example, it is striking that “religious liberty” arguments are almost absent in Didi Herman’s comprehensive 1998 study of the Christian Right’s anti-gay rhetoric, The Anti-Gay Agenda.

This conservative “religious liberty” campaign gained steam beginning in the 2000s, when a small group of conservative Roman Catholic-affiliated scholars and think tanks, who had been making various religious liberty arguments for decades, injected the argument into the new contexts of health care and LGBTQ issues. It is reasonable to wonder whether some of this must have been tactical: faced with changing attitudes on LGBTQ rights and a decline in traditional homophobia, such organizations turned to “religious liberty” as a fallback. However, this research did not find hard evidence to support this theory. On the contrary, these arguments predate the successes of the contemporary LGBTQ rights movement in the last five years. In 2003, Alan Sears of the Christian Right legal group Alliance Defending Freedom named the so-called homosexual agenda “the principal threat to religious freedom,” well before that agenda enjoyed its recent successes.

By now, conservative “religious liberty” arguments are standard fodder on Fox News and among the rightwing punditry. Phyllis Schlafly, for example, writes that “the policies of the Obama administration represent the greatest government-directed assault on religious freedom in American history.” Rush Limbaugh, too, has alleged that the president is assaulting religious liberty—and recall that Limbaugh’s comments disparaging Sandra Fluke, the Georgetown law student advocating for women’s health rights, came in the context of a key “religious liberty” battle, the HHS provision debate.

The conservative “religious liberty” claim is firmly embedded in American political culture as well.

THE WAR ON RELIGION

Since the 1970s, conservative evangelical Christians have adopted the earlier Catholic narrative that there is a determined secularist campaign to destroy religion and replace it with “humanism.” Francis Schaeffer, Tim and Beverly LaHaye, Jerry Falwell, and Adrian Rogers (the leader of the Southern Baptist Convention following the conservative ‘coup’ of 1979), and many others drew on what historian Richard Hofstadter would call “paranoid” themes in right-wing American anticommunism, dislocations in traditional life brought on by post-1960s flights to the suburbs,and changes wrought by the civil rights, women’s, and gay liberation movements to depict an overall war on religion itself. Secularism has become the new socialism—though in the racist way President Obama is depicted in some of this literature, it seems the themes are reunited.

To some, this battle is literally the battle between God and Satan. Tim LaHaye, for example, demands that Christians “resist the devil and… put on the whole armor of God.” Beverly LaHaye wrote in 1984 that secularists are “priests of religious humanism and are evangelizing our children for Satan.”

Donald Wildmon’s outrageous tome Speechless is of the same ilk. These formulations seem unlikely to appeal to more moderate Christians, and on the contrary are likely to turn them off. Yet they have a strong appeal among evangelicals. In a 1990 survey reported by Sarah Barringer Gordon, more than 90 percent of those who self-identified as evangelicals (not just conservative evangelicals but evangelicals in general) agreed with the statement that “Christian values are under serious attack in the United States today.”

This rhetoric, even in its extreme form, is not simply propaganda but reflects a sincere sense, justified by opinion polls, that show the country moving away from traditional religion—that an old Christian order is waning. Rather than ascribe this trend to socioeconomic, scientific, psychological, or other factors, the Christian Right narrative looks for an enemy: Satan, socialism, communism, liberals, the War on Christmas, secularists, Barack Hussein Obama, feminists, homosexuals, evolution, abortionists, socialists, humanists—or, best, a hodgepodge of all of the above.

“Religious liberty” rhetoric is part of this narrative. Christianity is not losing its power in this narrative; someone is taking it away. Christianity is still the dominant religion in America, but its power is changing. One recurring theme in the right-wing literature is the sense of a “coming storm,” to quote from an anti-marriage equality commercial by the National Organization for Marriage. Like the red menace, the secularist danger is imminently looming. The metaphors are appropriately biblical: soon there will be a flood of litigation, a firestorm of controversy. Indeed, these apocalyptic pronouncements resonate closely with the millennialism that one finds in conservative evangelicalism generally and Christian Reconstructionism/pre-millennialism specifically. The “coming storm” and the End Times are not distant from one another. 

MARTYR NARRATIVE

In describing the war on religious freedom, conservative “religious liberty” discourse may seem paranoid, but to traditionalists, it resonates with significant moments in Christian history, such as the early Christian martyrs in the Roman period. The “martyr narrative” is best understood as theological, rather than political, speech. Indeed, while many progressives of all faiths see themselves as resisting an overbearing, conservative Christian dominance in public life, many Christian conservatives see themselves as resisting a secular, anti-Christian hegemony, a perception that taps directly into narratives of Christian martyrdom, including that of Christ himself. 

Many conservative “religious liberty” campaigners have analogized the “persecution” in the United States to that in Nazi Germany. Recently, for example, the pastoral outreach director for Minnesota for Marriage said that the way Hitler persecuted Jews was that he “removed their voices in the public square and removed their control of their own businesses. So, he stopped Jewish people from speaking out in public and he silenced them.” This, of course, is not new rhetoric either: the American Family Association’s Bryan Fischer once attributed the idea of church-state separation to Hitler. In similarly offensive fashion, Pastor Rick Warren and others have called the Hobby Lobby case the “equivalent of the Birmingham bus boycott.”  

STAGES OF DOMINION

Finally, who may abridge those rights is constantly at play in “religious liberty” discourse. Typically there are five tiers of actors:

1. Churches, clergy, and religious institutions 

2. Religious organizations

3. Religiously affiliated organizations

4. Religiously owned businesses

5. Religious individuals

The law treats these tiers differently: churches are rarely required to obey antidiscrimination laws, for example, but religious organizations may be, and religious-owned businesses are. Conservative “religious liberty” rhetoric deliberately misstates harms upward, and tactically expands exemptions downward. On the one side, no clergy will ever have to solemnize any marriage against her/his beliefs, yet restrictions on tier 4 or 5 individuals are cynically extended by conservative messaging to tier 1.  

LGBTQ ISSUES: 

SAME-SEX MARRIAGE AS FLASHPOINT

Few issues have galvanized the Christian Right more than same-sex marriage. As views on the subject have evolved with a majority of Americans now supporting it, “religious liberty” rhetoric has provided a new frame for old animus. Yet to shift from opposing same-sex marriage outright, to opposing same-sex marriage as a violation of religious liberty, activists must twist the facts. The broadest, and least accurate, “religious liberty” claim is that members of the clergy will be forced to solemnize same-sex marriage. “Once federal and state laws uphold gay marriage, gays will be entitled to sue anyone licensed by the state that refuses to perform a marriage,” writes Brad O’Leary in The Audacity of Deceit: Barack Obama’s War on American Values. This is universally untrue. All same-sex marriage laws specifically exempt clergy from being forced to sanctify any marriage of any kind. This, of course, is already the case without such exemptions; Orthodox rabbis cannot be forced to sanctify an intermarriage, for example. Yet this myth is an effective one, as we will see below.

It is also not the only myth that appears in this rhetoric. There are a handful of cases which appear again and again as anecdotes, and yet are misrepresented every time. For example: 

• In Willock v. Elane Photography, a photographer in New Mexico refused to take wedding photos of a same-sex couple. The couple sued and won. This case is sometimes used in anti-same-sex marriage arguments, yet the actual holding never mentioned marriage, and there was no same-sex marriage (or ban) in New Mexico when the case was decided. 

Rather, the holding was based entirely on antidiscrimination law and on the fact that the photographer was operating a public business. Nonetheless, because it involves a wedding photographer, Willock is routinely trotted out by anti-marriage [equality] activists.

• A second marriage-related case is New Jersey’s Bernstein v. Ocean Grove Camp Meeting Association.

The Ocean Grove Camp Meeting Association is a Methodist organization which runs a beachfront boardwalk pavilion open to anyone, but they refused to host a same-sex marriage. 

The court specifically noted that this was not a case involving a church house, which would be exempted from anti-discrimination laws: the pavilion was found to be a “public accommodation,” and was open to all kinds of events (including non-Christian and secular ones). Thus, it could not discriminate on the basis of sexual orientation. As a result of the discrimination, the pavilion lost its tax exemption, and was promptly assessed $20,000 in back taxes.Once again, this case actually had nothing to do with same-sex marriage, which is still not valid in New Jersey. Nor was anyone required to sanctify anything. Nor was the pavilion, or the church, even shut down; it merely lost a tax benefit.

This case was about a boardwalk pavilion that happened to be run by a Methodist organization. 

• A third favorite case is Parker v. Hurley.

Here, a religious family objected to a public school curriculum that included same-sex families in a curriculum on diversity. 

The family lost. This case is not new in theory; there are numerous previous cases where individual parents have tried to change objectionable (to them) elements of a school curriculum, and they have almost always lost. Once again, this case is not actually about same-sex marriage, but about whether one family’s religious views trump the interests of every other student—as determined by the school board, at least—in receiving an education. Yet this case is often presented as evidence that same-sex marriage means children will be taught that the “gay lifestyle” is “equally valid.”

REPRODUCTIVE RIGHTS: 

THE HHS PROVISION AS FLASHPOINT

On October 20, 2012, a coalition of over 60 local and national organizations held a series of national rallies around the country against the Health and Human Services (HHS) contraception provision enacting the 2010 Affordable Care Act (“Obamacare”). As the Stand Up for Religious Freedom coalition describes it on their website:

The new Mandate would requiring [sic] nearly all private health insurance plans to include coverage for all FDA-approved prescription contraceptive drugs and devices, surgical sterilizations and abortion-inducing drugs—drugs that interfere with implantation in the womb and therefore destroy the life of a human being in the earliest stage of development.

Though hardly ever reported in the media, this provision did not originate with “Obamacare.” In 2000, the Equal Employment Opportunity Commission held that failure to provide contraceptive coverage violates the 1978 Pregnancy Discrimination Act, an amendment to Title VII of the 1964 Civil Rights Act that outlaws, among other things, discrimination based on sex.Thus, contraception coverage has been the law for all employer-sponsored health plans for businesses with more than 15 employees for twelve years. 

In addition, over half of the states already have their own state laws that require contraceptive coverage. Some of these laws contain exemptions for certain religious employers that are almost identical to the religious employer exemption in the HHS Benefit; two of those have been challenged unsuccessfully in court. The highest courts in both New York and California upheld their state laws against challenges, finding that the laws do not violate free exercise of religion.

Countless editorials have omitted this fact, suggesting that it was simply HHS’s idea to narrowly construe “religious employers.”Moreover, the Affordable Care Act itself required that contraceptive coverage be made available without a co-pay; HHS was enacting the law. They were following the law as set forth by the EEOC and several state courts. The only difference between the HHS provision and the previous law was that under the new requirement, employees would no longer have cost sharing with employers since they don’t pay the deductible associated with contraceptive care. 

What transpired, however, was anything but settled. In January 2012, HHS Secretary Katherine Sebelius announced the new policy. Though it exempted churches and religious organizations (tiers 1 and 2), Catholic churches and charities immediately objected. On February 11, 2012, HHS announced a compromise, in which insurance providers, rather than employers, would absorb the cost of the deductible. This would have seemed to remove the conscience-offending causality, but by now the Catholic Church (and in particular the USCCB) was empowered, and took on the entire HHS provision, including the part that was already part of settled law.

On February 1, 2013, the Obama administration proposed allowing faith-based hospitals and universities—not merely churches and religious organizations—to issue plans that do not provide birth control (i.e., tier 3, in addition to tiers 1 and 2). They would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds. The women who work for this second group would still get birth control coverage, but it would come through a separate individual plan, not from the religious organization’s plan. This is a proposed rule and has not yet been finalized.

This is a huge concession, and should represent a victory for the “religious liberty” campaign. Yet in a statement, the Becket Fund said the new rule “does nothing to protect the religious liberty of millions of Americans”—and promised “to study what effect, if any, the Administration’s proposed rule has on the many lawsuits” involving Becket’s clients.130 The campaign has had such success that it is now focused on winning the entire game, and obtaining religious exemptions for any corporation that wishes to obtain them. Despite these remarkable gains, the prophetic rhetoric has reached fever pitch. A June 2012 video by the Acton Institute warns that the HHS provision will literally mean “The End of America.” 

SPECIFICALLY, THIS REPORT RECOMMENDS THAT SOCIAL JUSTICE ADVOCATES:

1. Define and Publicize the Coordinated Campaign to Redefine Religious Liberty. 

While grassroots evangelicals are active in the conservative “religious liberty” campaign against LGBTQ and reproductive rights, it is a coordinated fight led by well-established right-wing institutions like the Becket Fund and Alliance Defending Freedom. The Roman Catholic Church hierarchy and conservative Catholics are important thought leaders for the campaign. The evangelical/Roman Catholic alliance builds on relationships forged in the antichoice movement.

2. Organize A Unified Response

There is need for further mapping, coordinating, and building out alliances among advocates countering the Right’s campaign. We need to strengthen the alliance between prochoice and LGBTQ forces, and ally with emerging faith-based responses. Alliances must also be made with liberal business owners and libertarians; this can increase effectiveness of existing efforts. 

3. Counter Misinformation

Many conservative “religious liberty” claims rely on falsehoods and scare tactics. Simply put, clergy will never be forced to perform a same-sex marriage. Social justice advocates must learn and be able to counter the Right’s go-to examples of spurious “religious liberty” violations. 

Understanding and clarifying the Right’s use of the martyr narrative and inversion of the victim-oppressor dynamic is a good start to countering right-wing rhetoric. 

4. Reclaim the Religious Liberty Frame

The term “religious liberty,” like the phrase “family values,” has become a code for the larger culture wars. While religious belief and expression are valid and protected constitutional claims, religious liberty is not the freedom to discriminate and harm others. It does not allow a boss to tell an employee what health care they can obtain, taking away the employee’s ability to make moral and religious choices. Nor does sexual and gender equality have to be pitted against religious liberty. The clash is not just between secularism and religion, or equality and religion, but of competing religious values. Challenging the conservative frame also means distinguishing between commercial and religious acts, and valuing competing civil rights; an effective response requires sustained intellectual and legalchallenges to the Right’s argument.

5. Develop Academic Responses

Social justice advocates must take seriously the influence of right-wing academics on policy and public debate. Religious freedom is a complex topic, which can too often become co-opted by the conservative “religious liberty” campaign. 

That this happens, often unknowingly, to fairminded academics and legal scholars is something that can be reversed by raising awareness of the issue, including with academic conferences on the topic.

6. Leverage Religious Communities

We must build on existing interfaith work to counter the conservative “religious liberty” narrative, informing and organizing more in faith communities. The social justice community must create unity by issuing a common “Call to Conscience” of religious people seeking to maintain their religious liberty against the conservative proposals and policies. LGBTQ faith communities, Jewish and progressive faith organizations, in particular, must be supported in countering the Right’s claims about what religious liberty means.

7. Ongoing Research and Monitoring

Social justice advocates and defenders of true religious freedom must become better informed about the right-wing campaign to redefine religious liberty—including its principal players, strategies, and vulnerabilities. Ongoing investigative research into U.S. conservatives’ use of religious liberty legal and rhetorical strategies, both domestically and abroad, is needed to keep advocates and journalists informed about strategically significant developments. Moreover, we must track the influence of conservative academics on policy and public debate.

h/t: PoliticalResearch.org

2011 and 2012 were both record-breaking years for new abortion restrictions, and abortion opponents are aren’t showing signs of letting up this year. The “personhood” movement to endow zygotes with the full rights of U.S. citizens, effectively outlawing all abortions and even some forms of contraception, has largely been a failure — but that doesn’t mean anti-choice lawmakers are giving up their quest to redefine the medical terms of pregnancy. The push for “fetal heartbeat” bans is the next anti-choice movement to watch.

Fetal heartbeat measures seek to outlaw abortions as soon as a fetal heartbeat can be detected — which can occur as early as six weeks, before many women even know they’re pregnant — in direct contradiction to Roe v. Wade, which guarantees women’s right to an abortion until the point of viability at about 23 or 24 weeks of pregnancy. Despite the fact that heartbeat bills are much more extreme than the 20-week abortion bans that are already floundering in court for running afoul of Roe v. Wade, anti-choice lawmakers in at least five states are flirting with this type of legislation:

– OHIO: Anti-choice lawmakers in Ohio first advanced a heartbeat bill in 2011. After the measure was stalled in the state senate for over a year, abortion opponents pressured the legislature to take up the issue again during their lame duck session after the 2012 elections. But ultimately, the bill didn’t come up for a vote because the state Senate leader, Tom Niehaus (R-OH), acknowledged it was too controversial even among abortion opponents. Niehaus said he wanted to wait until lawmakers anti-choice community reached consensus on the measure — which means it could be back on the agenda sometime this year.

– MISSISSIPPI: About a week into the new year, GOP lawmakers in Mississippi filed a fetal heartbeat bill virtually identical to the one that failed to make it out of committee during the state’s last legislative session. Mississippi Gov. Phil Bryant (R) has already made it clear that he would sign such a bill if it ever reaches his desk. At a private anti-abortion event at the beginning of January, the governor confirmed that he supports banning abortion as soon as a fetal heartbeat can be detected. “It would tell that mother, ‘Your child has a heartbeat,’” Bryant said.

– WYOMING: About two weeks ago, state Rep. Kendell Kroeker (R) introduced a measure to supersede the medical definition of viability. Current state law says abortions are prohibited after a fetus has “reached viability,” and Kroeker sought to replace those words with “a detectable fetal heartbeat.” The Republican lawmaker said the idea for his heartbeat bill just came to him one day because “it became clear that if a baby had a heartbeat, that seemed simple to me that it’s wrong to kill it.” On Monday, a House panel struck down Kroeker’s bill because it was too medically vague. But if Ohio and Mississippi are any indication, this likely won’t be the last time that fetal heartbeat legislation shows up in Wyoming.

– ARKANSAS: Republicans in Arkansas also hopped on the fetal heartbeat train this week, but they went a step further — state Sen. Jason Rapert’s (R) proposed heartbeat bill would prosecute the doctors who perform abortions after the arbitrary cut-off with a Class D felony, punishable by up to six years in prison and up to a $10,000 fine. And thanks to the strong Republican majorities in Arkansas’ legislature, this piece of legislation has a good chance of advancing. It easily passed out of committee on Wednesday and is now headed to the state Senate, where 19 of the chamber’s total 35 members have already signed onto it as co-sponsors.

– NORTH DAKOTA: Like Arkansas, the anti-choice politicians in North Dakota want to prosecute the doctors who perform abortions after a fetal heartbeat can be detected — and their heartbeat ban was part of the “flurry” of anti-abortion bills that lawmakers rushed to introduce around last week’s Roe v. Wade anniversary. A House committee is currently considering the measure, along with an even more radical “personhood” proposal. North Dakota has already imposed some the most restrictive anti-abortion laws in the nation, and women’s health advocates in the state warn that the passage of these new bills “would be tantamount to banning abortion” altogether.

Three of the states on this list — Mississippi, Arkansas, and North Dakota — only have a single surgical abortion clinic left in the entire state, which means women already have to overcome significant geographic barriers to obtain an abortion. 

h/t: Tara Culp-Ressler at Think Progress

Yesterday on Focal Point, American Family Association spokesman Bryan Fischer marked the anniversary of Roe v. Wade by predicting that America “will have to pay” for legal abortion: “It could be through civil war, it could be through anarchy, it could be through Muslim fundamentalists and terrorists attacks on the United States, but one way or another we cannot escape God’s justice.”

He went on to argue that Planned Parenthood clinics are no different from Nazi death camps. “You see a Planned Parenthood clinic, just think Birkenau, just think Auschwitz, just think Bergen-Belsen,” Fischer said, “because that’s what you are looking at, you are looking at an equivalent of a Nazi gas chamber.”

Later, he repeated the false charge that Planned Parenthood promotes domestic abuse to its members.

From the 01.23.2013 edition of AFR’s Focal Point:

H/T: Brian Tashman at RWW

Tuesday marks the 40th anniversary of the landmark Roe v. Wade decision, which guaranteed women’s constitutional right to legal abortion services. But even though Roe has been in place for four decades, women’s reproductive rights aren’t safe. In fact, over the past two years, anti-choice legislators passed an overwhelming 135 new abortion restrictions in 30 different states — making 2011 and 2012 the worst years for women’s reproductive freedom since abortion first became legal in 1973.

Rather than attempting to throw out Roe altogether, abortion opponents often limit reproductive rights indirectly. Even though abortion is already an incredibly safe medical procedure, the lawmakers pushing for new state-level restrictions claim they want to protect women by making abortion safer. Here are five tactics that GOP lawmakers are currently employing to circumvent Roe v. Wade and undermine reproductive rights across the country:

1) Over-regulating abortion clinics. Under the guise of ensuring that women’s health clinics are up to code, anti-choice lawmakers are subjecting abortion clinics and doctors to burdensome restrictions that aren’t placed on other medical professionals — a method called the “Targeted Regulation of Abortion Providers.” Clinics are often forced to close when they can’t afford to make the expensive, unnecessary updates that TRAP laws require. In Mississippi, where TRAP laws threaten to shut down the state’s last remaining abortion clinic, the Republican governor has even admitted his motives aren’t rooted in a concern for women’s safety — he told a group of anti-abortion activists earlier this month that his real goal is to shut down the only reproductive health resource available to women seeking abortions. 

2) Imposing mandatory waiting periods for women seeking abortions. It’s much harder to get an abortion than it is to get a gun in several states, largely thanks to mandatory waiting periods that require women to make multiple trips to a clinic to receive the voluntary medical procedure. Thirty five states currently require women seeking abortions to undergo counseling — which is often simply an attempt to shame women out of having the procedure — and 24 of those states require women to wait a full 24 hours after receiving the counseling to actually have an abortion.

3) Restricting late-term abortions. The Supreme Court granted legal abortion rights until the point of fetal viability, generally considered to occur around week 23 or 24 of pregnancy. But some anti-choice lawmakers are attempting to move the goal posts with “fetal pain” measures that would ban abortion at just 20 weeks, based on the scientifically-disputed theory that fetuses can feel pain at that point. Seven states currently have 20-week bans in place, and three more — Arizona, Georgia, and Louisiana — enacted unconstitutional bans on late-term abortions last year that don’t include exceptions for the health of the woman. The fetal pain laws in Georgia and Arizona are currently being blocked from taking effect while they’re under consideration in court.

4) Pushing the myth of “coerced abortion.” Just like TRAP laws that restrict abortion clinics aren’t actually intended to safeguard women’s health, regulations that prevent women from being “coerced” into having an abortion aren’t actually enacted for women’s benefit. In order to justify additional imposing additional road blocks to reproductive services, anti-abortion activists cite the high numbers of women being forced into having abortions against their will — but there isn’t any scientific evidence to back up those claims. In fact, anti-coercion policies simply make abortion more difficult to access without actually addressing real issues of domestic and sexual violence, which are typically what causes women to be forced into reproductive decisions against their will. Nonetheless, at least 11 states considered “coerced abortion” laws in 2012.

5) Redefining the medical terms of pregnancy. In order to place additional abortion restrictions on women while Roe still stands, the most extreme anti-choice advocates are trying to redefine pregnancy. Lawmakers in Ohio and Wyoming have proposed radical “heartbeat” initiatives that would redefine the point of viability to ban abortion as soon as a fetal heartbeat can be detected — which typically occurs around 6 weeks of pregnancy, before some women even realize they’re pregnant and at least 17 weeks before the medically accepted definition of viability. Likewise, far-right “personhood” proponents want to redefine embryos as full U.S. citizens, which would result in banning all abortions, some forms of contraception, and potentially even invitro fertilization. Heartbeat and personhood measures are so extreme that they haven’t found much success even among the anti-choice community, but that hasn’t stopped Republican members of the 113th Congress from introducing a personhood bill already.

h/t: Tara Culp-Ressler at Think Progress Health

Republican Gov. Rick Perry of Texas blasted the U.S. Supreme Court’s landmark Roe v. Wade decision on Monday, indicating he will continue to push for anti-abortion laws.

“Roe v. Wade paved the way for the loss of more than 54 million innocent lives, with more than a million added to that total with each passing year,” he said in a statement on the eve of the ruling’s 40th anniversary. “This catastrophic loss of life is a grim testament to judicial activism, and a tragic stain on our national conscience.”

“In Texas, we’ve worked hard to strengthen our abortion laws to the greatest extent possible underRoe v. Wade,” the governor added. “We will continue working to empower families and protect our children’s future, until the day abortion is nothing more than a tragic footnote in our nation’s history.”

Perry has asked Texas lawmakers to approve a so-called fetal pain bill. The proposed law would prohibit abortion once a fetus is capable of experiencing pain. Citing disputed research, pro-life advocates claim a fetus can feel pain after 20 weeks of pregnancy.

h/t: Eric W. Dolan at The Raw Story

NEW YORK — By today’s politically polarized standards, the Supreme Court’s momentous Roe v. Wade ruling was a landslide. By a 7-2 vote on Jan. 22, 1973, the justices established a nationwide right to abortion.

Forty years and roughly 55 million abortions later, however, the ruling’s legacy is the opposite of consensus. Abortion ranks as one of the most intractably divisive issues in America and is likely to remain so as rival camps of true believers see little space for common ground.

Unfolding events in two states illustrate the depth of the divide. In New York, already a bastion of liberal abortion laws, Gov. Andrew Cuomo pledged in his Jan. 9 State of the State speech to entrench those rights even more firmly. In Mississippi, where many anti-abortion laws have been enacted in recent years, the lone remaining abortion clinic is on the verge of closure because nearby hospitals won’t grant obligatory admitting privileges to its doctors.

“Unlike a lot of other issues in the culture wars, this is the one in which both sides really regard themselves as civil rights activists, trying to expand the frontiers of human freedom,” said Jon Shields, a professor of government at Claremont McKenna College. “That’s a recipe for permanent conflict.”

On another hot-button social issue – same-sex marriage – there’s been a strong trend of increasing support in recent years, encompassing nearly all major demographic categories.

There’s been no such dramatic shift, in either direction, on abortion.

For example, a new Pew Research Center poll finds 63 percent of U.S. adults opposed to overturning Roe, compared to 60 percent in 1992. The latest Gallup poll on the topic shows 52 percent of Americans saying abortion should be legal under certain circumstances, 25 percent wanting it legal in all cases and 20 percent wanting it outlawed in all cases – roughly the same breakdown as in the 1970s.

“There’s a large share of Americans for whom this is not a black-and-white issue,” said Michael Dimock, the Pew center’s director. “The circumstances matter to them.”

Indeed, many conflicted respondents tell pollsters they support the right to legal abortion while considering it morally wrong. And a 2011 survey of 3,000 adults by the Public Religion Research Institute found many who classified themselves as both “pro-life” and “pro-choice.” 

Shields, like many scholars of the abortion debate, doubts a victor will emerge anytime soon. 

Supporters of legal access to abortion were relieved by the victory of their ally, President Barack Obama, over anti-abortion Republican Mitt Romney in November.

A key reason for the relief related to the Supreme Court, whose nine justices are believed to divide 5-4 in favor of a broad right to abortion. Romney, if elected, might have been able to appoint conservative justices who could help overturn Roe v. Wade, but Obama’s victory makes that unlikely at least for the next four years.

Abortion-rights groups also were heartened by a backlash to certain anti-abortion initiatives and rhetoric that they viewed as extreme.

“Until politicians feel there’s a price to pay for voting against women, they will continue to do it,” said Cecile Richards, president of the Planned Parenthood Federation of America, a lightning rod for conservative attacks because it’s the leading abortion provider in the U.S.

In Missouri and Indiana, Republican candidates for the U.S. Senate lost races that their party initially expected to win after making widely criticized comments regarding abortion rights for impregnated rape victims. In Virginia, protests combined with mockery on late-night TV shows prompted GOP politicians to scale back a bill that would have required women seeking abortions to undergo a transvaginal ultrasound.

However, anti-abortion leaders insist they have reason for optimism, particularly at the state level.

In the past two years, following Republican election gains in 2010, GOP-dominated state legislatures have passed more than 130 bills intended to reduce access to abortion. The measures include mandatory counseling and ultrasound for women seeking abortions, bans on abortion after 20 weeks of pregnancy, curbs on how insurers cover the procedure, and new regulations for abortion clinics.

The ACLU and other abortion-rights groups are challenging several of the laws in court, notably the 20-week ban. Yet already this year, Republican leaders in Texas, Mississippi and elsewhere are talking about new legislative efforts to restrict abortion.

Mississippi’s Gov. Phil Bryant says he wants to end abortion in the state and is eager for the remaining clinic, the Jackson Women’s Health Organization, to close.

“My goal, of course, is to shut it down,” Bryant told reporters on Jan. 10. “If I had the power to do so legally, I’d do so tomorrow.”

The clinic is a steady target of anti-abortion protesters who take turns praying, singing hymns and confronting patients. Its administrator, Diane Derzis, says the three principal physicians on her staff have been unable to get admitting privileges at area hospitals due to pressure from the anti-abortion movement.

She drew a contrast with the push for same-sex marriage.

“With marriage equality, gays and lesbians are fighting for something they didn’t have,” Keenan said. “In the case of reproductive rights, you’re trying to maintain the status quo. The millennial generation doesn’t see it as threatened.”

Another difference: the campaign for same-sex marriage has benefited greatly from personal testimony by gay couples, speaking out in legislative hearings and campaign videos. By contrast, although millions of American women have had abortions, relatively few speak out publicly to defend their decisions.

“If you know some women, you know a woman who’s had abortion,” said Dr. Anne Davis, who is medical director for Physicians for Reproductive Choice and Health and provides abortions as part of her practice in New York City.

“But you do not see women talking about their abortions,” Davis said. “They do what they need to do and move on. I can’t blame people for that.”

Davis, who learned abortion techniques during her residency at the University of Washington in the mid-’90s, said the procedure has become increasingly safe – notably with the advent of abortions via medication. She expressed dismay at the spate of restrictive laws that she and many of her fellow physicians view as ill-founded.

“Initially, we’d say, `That’s ridiculous’ – and now we’re stuck with them,” she said.

Despite all the furor, abortion has been commonplace in the post-Roe era, with about one-third of adult women estimated to have had at least one in their lifetime.

Of the roughly 1.2 million U.S. women who have abortions each year, half are 25 or older, about 18 percent are teens, and the rest are 20-24. About 60 percent have given birth to least one child prior to getting an abortion. A disproportionately high number are black or Hispanic; and regardless of race, high abortion rates are linked to economic hard times.

The Roe opinion, written by Justice Harry Blackmun, asserted that the right to privacy extended to a women’s decision on whether to end a pregnancy. States have been allowed to restrict abortion access at late stages of pregnancy, but only if they make exceptions for protecting the mother’s health – and the net result has been one of the most liberal abortion policies in the world.

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas, where the Roe case originated.

Some abortion opponents, such as Serrin Foster of Feminists for Life, urge bipartisan efforts to support pregnant young women as they pursue careers or education, so they don’t feel financial pressure to have an abortion. But supporters of legal access to abortion look askance at such proposals if they are coupled with calls to take abortion decision-making out of a woman’s hands.

For Carrie Gordon Earll, now senior policy analyst for the conservative ministry Focus on the Family, that Roe-established freedom of choice once seemed logical. She got pregnant in 1981 while attending a Christian college and opted to have an abortion.

She recently made a video expressing her regrets.

“I can look back at those 40 years and say without a doubt, the world is not a better place because of abortion, women are not in a better place,” she says. “What it has created is a world where you’re almost expected to abort if you’re pregnant at an inopportune time.”

In an interview, Earll mused on how the anti-abortion movement has persevered since Roe.

“We’ve had 40 years of marketing by Hollywood and the cultural elites that abortion is a good thing, and we still have a battle going on,” she said. “We’re holding our own.”

A similar refrain of perseverance is sounded by Dr. Douglas Laube of Madison, Wis., who began performing abortions as part of his practice a year after the Roe decision.

“It was important for women to be able to legally ensure their right to make their own decision,” said Laube, who is chairman of Physicians for Reproductive Health Choice. “But it served to polarize society politically.”

Laube is worried by the spread of anti-abortion state laws, but encouraged by the surge of women becoming obstetrician-gynecologists – a trend he hopes will ease the shortage of abortion providers.

“I see the movement toward the religious right being countered by a growing movement among practitioners and advocates for maintaining this as legal,” he said. “That means the controversy will continue. But it also means we will hold our ground.”

h/t: Huffington Post