Six fights on reproductive rights that the media should be prepared to report on in 2018

President Donald Trump’s first year in office was particularly damaging for abortion rights and reproductive health. Beyond the Trump administration’s multiple moves to curtail abortion access, anti-choice advocates were also successful on the state level, organizing large-scale protests in North Carolina and Kentucky and implementing a litany of anti-choice policies. Yet with the upcoming Supreme Court case on crisis pregnancy centers, the continuing controversy over abortion access for undocumented minors, a wave of state-level attacks, and Trump’s anti-choice judicial confirmations, 2018 may be an even more dangerous year. 

Sarah Wasko / Media Matters

1. The Supreme Court is set to hear a case involving crisis pregnancy centers

The Supreme Court will hear a First Amendment case about crisis pregnancy centers. In November, the United States Supreme Court announced that it would hear the case of National Institute of Family and Life Advocates v. Becerra. The case involves a California statute called the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act. Under this act, licensed crisis pregnancy centers (CPCs) -- which are anti-abortion organizations that represent themselves as reproductive care clinics -- are required to disclose that the state can help provide contraceptives and birth control. The National Institute of Family and Life Advocates -- which owns CPCs in the state -- has argued that the act violates the First Amendment since it forces these centers to send a message that they argue conflicts with their anti-abortion beliefs, even though the FACT Act does not require these centers to provide contraceptives or abortion themselves. [Los Angeles Times, 11/13/17; Media Matters 11/20/17]

Vice News: The case “could prove to be a double-edged sword for opponents of abortion.” If the Supreme Court finds in favor of the CPCs, this ruling could enable CPCs to continue relying on fearmongering, deceptive advertising, and medical misinformation to scare or persuade individuals into continuing their pregnancies. At the same time, the case “could prove to be a double edged sword for opponents of abortion.” As Vice News explained, “If the Supreme Court rules that California is restricting these centers’ right to free speech, that may mean it’s also illegal for states to make abortion providers tell their patients information that’s often designed to discourage them from having an abortion.” [Media Matters 12/28/17; Vice News 11/14/17]

Media should be aware of right-wing misinformation about CPCs when reporting on this case. Right-wing media have already started spreading misinformation about both this case and the practices of CPCs. For example, during a November 2017 segment, Fox News’ Tucker Carlson described California’s FACT Act as an attack on free speech, rather than as a necessary restriction to counter the deceptive practices of CPCs. Similarly, he claimed that CPCs are “not hurting anybody.” In reality, these organizations actively dissuade their patients from obtaining abortions through false advertising about the services they provide and misinformation about the risks of abortion, including inaccurate claims that abortion can cause breast cancer or lead to infertility. [Media Matters, 11/20/17]

2. Kentucky could become the first state without an abortion clinic

Kentucky may become the first state in the US without an abortion clinic. The only abortion clinic in Kentucky may soon close its doors, making it the first state in the country without any abortion clinics. In September 2017, the state’s sole provider, Louisville’s EMW Women’s Surgical Center, sued the governor for attempting to enforce a transfer and transport agreement on the clinic, which requires the clinic to have an emergency agreement with a nearby hospital. According to Planned Parenthood lawyer Karen Johnson-McKewan, these agreements have “zero medical benefit,” as hospitals must accept patients in any type of emergency, and ambulances do not need an agreement to take patients to the hospital. A decision from U.S. District Judge Greg Stivers is expected this year and will determine the fate of EMW Women’s Surgical Center. Five other states also have only one abortion clinic: West Virginia, Wyoming, South Dakota, North Dakota, and Mississippi. [Newsweek, 1/8/18; USA Today 12/6/17, Media Matters, 8/16/17]

The fight over Kentucky’s clinic could have dangerous ramifications across the country. Closing the only abortion clinic in Kentucky could set a dangerous precedent and have ramifications at both the national and local levels. The American Journal of Public Health found that the clinic closures in Texas following the passage of the anti-abortion law HB 2 had a negative impact on women and on their access to abortion. In many cases, clinic closures impede an individual’s ability to get an abortion due to high out-of-pocket expenses and lengthier travel times. At times, these closures also can force patients to delay the procedure until it is no longer legal to get an abortion. In addition, according to CNN, if abortions were unavailable in Kentucky, it could be similar to the time before Roe v. Wade when abortions were illegal and “some took their chances on dangerous abortions performed by amateurs or even themselves.” The closure of the only clinic in Kentucky may also have national ramifications on abortion clinics across the country, as the case could be appealed all the way to the Supreme Court. [American Journal of Public Health, May 2016; MSNBC 6/18/16; CNN, 11/14/17]

3. Anti-abortion groups and officials will continue attempting to prevent undocumented immigrants from accessing abortion care

In 2017, the Trump administration tried to bar abortion access for undocumented minors held in detention. In October 2017, the Trump administration attempted to block a 17-year-old undocumented teen (called Jane Doe) from getting an abortion while she was in the custody of the U.S. Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR). The American Civil Liberties Union (ACLU) assisted Doe in going to the appeals court, which ultimately ruled in favor of Doe's right to access abortion care. Similarly, in December 2017, the Trump administration tried to block two more undocumented teens (called Jane Roe and Jane Poe) from obtaining abortions. A federal judge eventually ruled that Poe must be allowed to get an abortion. Roe was also able to obtain an abortion, as it was later revealed that she was not a minor and therefore not subject to the rules of HHS, but rather Immigration and Customs Enforcement (ICE), which allows those held to access abortion care. The ACLU has filed a lawsuit in response to the administration’s policy prohibiting undocumented minors in federal custody from getting abortions. [ACLU, 12/20/17; Slate, 12/20/17; BuzzFeed, 12/18/17]

The administration’s involvement in these cases has dangerous consequences. The Trump administration’s involvement in these cases threatens abortion access for all undocumented minors in the United States. In December 2017, the Department of Justice (DOJ) sought to disclose Poe’s abortion status to her sponsor into the United States. As Slated reported, Poe’s sponsor was her uncle, “who told Poe that he would ‘beat’ her if she terminated her pregnancy" -- a threat that Poe’s parents had also made. In addition, in November, the DOJ sought to punish Doe’s attorneys, accusing them of wrongdoing in failing to notify government lawyers when the abortion occurred. [Slate, 11/3/17, 1/2/18]

Media should be aware of right-wing misinformation that has spread about the case. In response to Jane Doe’s case, right-wing media pushed several myths about abortion. For example, in October 2017, Fox News’ Tucker Carlson hosted Kristan Hawkins, president of Students for Life of America, to discuss the case. During the segment, both claimed that providing an abortion for Doe would require taxpayers to fund abortions for other undocumented immigrants. Hawkins also added that the ruling would set a “dangerous precedence” (sic) for other people to “come to the United States illegally or legally” because the country would “fund a taxpayer-funded abortion for you.” Despite these claims, the facts run contrary, as Doe had already obtained private funds for the abortion. During the same segment, Hawkins also made the claim that the HHS was “trying to protect [Doe] from the ACLU [and] Planned Parenthood.” However, in reality, HHS attempted to force Doe and other undocumented immigrants to go to CPCs, which push medical misinformation to keep pregnant people from getting abortions. [Media Matters, 10/19/17, 10/31/17]

4. Anti-abortion lawmakers will advocate for 20-week abortions bans based on junk science

The 20-week ban has been passed by the House and is due for a vote in the Senate this month. On September 26, 2017, members of the House of Representatives held a press conference announcing a vote on the misleadingly titled Pain-Capable Unborn Child Protection Act. This act, commonly referred to as a 20-week ban, would ban abortions after 20 weeks of pregnancy, unless the life of the pregnant person is threatened or the pregnancy is a result of rape or incest. In October 2017, the House passed a version of the 20-week ban, and the Senate is expected to vote on the act on January 19. The same legislation was proposed in 2014 and 2015, but never passed in the Senate. If passed by Congress, President Donald Trump has said he would sign the bill into law. [Media Matters 10/2/17; CNN, 10/3/17;, accessed 12/19/17, accessed 12/19/17; The Hill, 10/2/17, 10/16/17; Rewire, 10/13/17; Washington Examiner, 1/8/18]

Several states have already proposed 20-week bans. In 2018, several states are also considering 20-week bans. On January 3, Missouri legislators introduced HB 1266, which would prohibit a person from “performing or inducing” an abortion after 20 weeks with exceptions only for “a serious health risk to the pregnant person.” Similarly, New Mexico has prefiled a bill prohibiting abortions after 20 weeks with the same exception. Several states introduced 20-week bans in 2017 and will carry over that legislation for a vote in 2018, including Illinois, Iowa, Massachusetts, and Pennsylvania. Kentucky may also consider the ban in 2018, according to a report from The Courier-Journal. [Rewire, 1/4/18, 1/2/18, 7/5/17, 7/5/17, 10/31/17, 12/14/17; Stateside, 7/25/17; The Courier-Journal, 12/28/17]

20-week bans are based on junk science and are unconstitutional. Supporters of the Pain-Capable Unborn Child Protection Act push for the ban based on the false claim that fetuses can feel pain at 20 weeks. However, according to research from the New England Journal of Medicine, “study after study has determined that perception of pain is not physically possible until nearly 30 weeks of gestation, when thalamocortical pathways are present and have begun to function.” The American College of Obstetricians and Gynecologists (ACOG) and other mainstream medical organizations have found a similar timeline. In addition, according to Rewire and the Guttmacher Institute, 20-week abortion bans are unconstitutional under Roe v. Wade. [Media Matters, 10/2/17]

5. Anti-choice lawmakers will also push for so-called “personhood” bills without scientific or legal support

In 2017, Congress and state legislatures pushed for legislation recognizing so-called fetal “personhood.” In 2017, Congress considered a tax plan containing extremist fetal “personhood” language. Part of the tax plan included changes to the 529 college savings plans by inserting language allowing “unborn children” to be named as beneficiaries, with “unborn child” defined as a “child in utero” or “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” In addition, during 2017, 17 states introduced “personhood” bills. The Alabama House and Senate also passed HB 98, which will be put on the ballot for a vote in November 2018. If passed, HB 98 would add an amendment to the state constitution supporting the rights of “unborn children.” [Rewire, 11/2/17, 11/13/17, 5/12/17; ThinkProgress, 12/1/17]

Several states will vote on “personhood” bills in upcoming legislative sessions. Many states will vote on so-called fetal “personhood” bills in their 2018 legislative sessions. On January 3, Missouri proposed two bills -- a “personhood” bill declaring that life starts at fertilization and a “personhood” constitutional amendment. The amendment defines a person to include a “preborn human child at every state of biological development from the moment of conception until birth,” and if passed, it would be submitted to voters in the next general or special election. In addition, several “personhood” bills from 2017 will carry over for a vote in 2018 including in South Carolina, Oklahoma, North Carolina, Kansas, Iowa, Illinois, and Alaska. [Rewire 1/4/18, 1/4/18, 4/26/17, 4/26/17, 3/21/17, 2/23/17, 4/7/17, 2/22/17, 2/23/17, 2/23/17,12/20/17, 7/3/17; Stateside, 7/25/17]

“Personhood” bills are not based on science and have been ruled unconstitutional. Mainstream medical institutions and experts have rejected the arguments abortion opponents promote to support so-called fetal “personhood” claims for lacking sound scientific evidence. For instance, the ACOG denounced “personhood” measures on the basis that they “substitute ideology for science and represent a grave threat to women’s health and reproductive rights.” In the legal context, the concept of “personhood” has also been found unconstitutional as under Roe v. Wade, as the Supreme Court found that “the unborn have never been recognized in the law as persons in the whole sense.” [Media Matters, 9/2/16]

6. Trump’s judicial confirmations will continue to reshape the judiciary with negative impacts for reproductive health

Supreme Court Justice Neil Gorsuch has a history of conservatism that tends to favor anti-choice views. In April 2017, the Senate confirmed Neil Gorsuch to the United States Supreme Court. In 2006, Gorsuch wrote in his book about assisted suicide that life is “intrinsically valuable and that intentional killing is always wrong.” Though he never directly ruled on abortion as a judge on the 10th U.S. Circuit Court of Appeal, he sided with businesses and religious organizations who were opposed to providing contraceptives for their employees. [Media Matters, 2/2/17; CNN, 4/7/17; The Atlantic, 1/31/17; U.S. News & World Report, 3/21/17]

Many of Trump’s circuit court confirmations are “opposed to abortion rights.” The Senate has confirmed several of Trump’s anti-choice nominees as judges to federal circuit courts. These judges include 7th U.S. Circuit Court of Appeals Judge Amy Coney Barrett -- who has “questioned the precedent of the Roe v. Wade abortion rights ruling” -- and 6th U.S. Circuit Court of Appeals Judge John Bush -- who called abortion and slavery “the two greatest tragedies in our country.” In addition, Kevin Newsom -- who equated the legalization of abortion in Roe v. Wade with the decision of the Supreme Court to uphold slavery in Dred Scott -- was confirmed to the 11th U.S. Circuit Court of Appeals. According to HuffPost, the circuit court nominations will have a particularly high impact since they are lifetime appointments. In addition, since the circuit courts are one level under the Supreme Court, which rejects many cases, these courts often have the last word on controversial cases. [HuffPost, 12/14/17]