Old Habits Die Hard

Despite all post-electoral promises to the contrary, Congressional and state Republicans last week reverted to their roots. Once again, they conjured voodoo biology and bloviated about their concern for the safety of women to justify blatantly unconstitutional infringements upon reproductive rights. Out of sheer desperation, they turned a blind eye to legislative procedure and even attempted to turn back the clock at the close of a special session intended to restrict abortion in Texas. Republicans must soon understand, as Wendy Davis (the LeBron James of the filibuster) and her peanut gallery of vocal supporters do, that so long as they stay this course, their prospects dwindle daily. The shame, embarrassment and wide electoral margins will continue to mount until they shed their stubborn resolve, abandon their “legitimate rape” philosophy and embrace a more compassionate alternative.

Last week, reproductive rights advocates unleashed their frustrations upon the Texas State Senate. But what happened in Washington merits equal attention. Last Tuesday, the U.S. House of Representatives approved the most restrictive ban on abortion debated on Capitol Hill since 2003. Though the measure stands no chance of passing the Senate, it would prohibit all abortions past the 22^nd week of pregnancy based on the medically dubious claim that fetuses begin to feel pain during that stage of development. Never mind that Roe v. Wade and Casey v. Planned Parenthood afford all women the constitutional right to an abortion before the fetus reaches viability, generally agreed upon to be the 24^th week of pregnancy—or that only 1.3% of all abortions occur after the 21^st week.

Not only does the legislation, entitled the Pain-Capable Unborn Child Protection Act (PUCPA), clearly fail constitutional muster, it’s also ineffectual relative to the complications underlying late-term abortion (few as they are): Most post-viability abortions are attributable to safety concerns for the health of the mother and financial concerns for low-income women saving up to afford the procedure. The PUCPA does nothing to address either.

Proponents of the bill cite the infamous Gosnell abortion clinic as one of their primary motives. Pro-lifers have rallied around the recent prosecution of Kermit Gosnell, a doctor running an abusive and illegal clinic in Philadelphia, to spur anti-abortion activism.

Republicans and Democrats alike dispute neither the illegality nor the disgusting brutality of delivering stillbirth babies and then murdering them for a profit. There’s “bipartisan consensus” that Gosnell is an exploitative, spineless monster devoid of a moral compass. But to assert that maintaining legal abortion until the 24^th week of pregnancy caused the outcome of the Gosnell clinic is laughable. If anything, the opposite is true.

Let’s evaluate the options available to a poor woman past the 24^th week of pregnancy, living in West Philadelphia and desperately seeking an abortion. She can either administer the procedure herself and risk death, or pay a visit to the Gosnell clinic with the money she’s been saving paycheck-to-paycheck for the past six months. The neighborhood Planned Parenthood rejects her plea for help, though they are sympathetic to her cause. All safe options evaporate.

So what of the Republican solution to expedite the time frame for women to acquire lawful procedures? Well the PUCPA, by restricting legal abortion to the first 22 weeks of pregnancy, would actually increase the probability of a Gosnell repeat. Who is more likely to offer illegal procedures after 22 weeks: Planned Parenthood or Gosnell?  Legal abortions confer a degree of safety and medical expertise vital to the health and well being of patients. Limiting the scope of legal abortions does nothing more than put women at even greater risk for injury.

The Texas State Senate convened a special legislative session last week to vote on a bill that would similarly restrict legal abortion to the first 20 weeks of pregnancy. At the state level, such obvious violations of the standard set by Roe and Casey are not unprecedented. In March, North Dakota passed legislation banning abortion just six weeks into pregnancy, when a fetal heartbeat can first be detected. A federal appellate court will likely block the law before it takes effect.

Governor Perry’s bill, however, comes with a nasty caveat. Though it permits abortion further into pregnancy, it also mandates that abortion clinics meet the standards of surgical centers. Under the façade of bolstering reproductive safety, it would force most medical facilities that cover abortion in Texas to close their doors. Accommodating the demands of this provision would require costly equipment and infrastructure upgrades, a luxury only five of the existing forty-two clinics in the state can afford. On Tuesday, Texas Senate Republicans moved to vote on the bill.

Enter Wendy Davis.

Outfitted in pink tennis shoes, the state senator planted her feet firmly to the Senate floor and refused to budge for the eleven hours that ensued. This was not her first filibuster, nor do I imagine it will be her last. Her righteous obstinacy was no small feat—Texas filibuster protocol requires the standing senator to speak continuously without pausing, asking for help or deviating from the topic of debate. Unlike certain obstructionists on the Hill, Wendy Davis wasn’t allowed to just read Alice in Wonderland for ten minutes, phone a friend and take a break for afternoon tea.

Tragically, Texas state Republicans flouted parliamentary procedure, ending #standwithWendy before the clock struck midnight. Senate filibuster rules lay down a three-strikes-you’re-out policy. Supposedly, the presiding officer in the chamber can issue a strike if the filibustering senator either accepts help or strays off topic. David Dewhurst, the Texas lieutenant governor, ruled that Planned Parenthood’s budget wasn’t a “germane” topic to the bill at hand. Strike one. Neither was a 2011 mandatory sonogram law. Strike two. Then Davis had the nerve to ask a colleague to adjust her back brace. Strike three, you’re out.

If a medical facility’s finances aren’t relevant to a bill that imposes an unaffordable expense on abortion clinics, one shudders to think how Dewhurst defines “germane.” Davis was rightly baffled when the Chair issued an order to table her filibuster.

Luckily, the voices of her protesting constituents descended from the gallery above and bred a state of chaos that made the ‘yeas’ of Dewhurst’s party-line vote inaudible. Reproductive rights in Texas lived to see another day, despite the best efforts of Republican legislators to alter the time stamp on the vote from 12:02am to 11:59pm.

Though Wendy Davis and her supporting cast won the battle early Wednesday morning, they face almost certain defeat in the war that looms ahead. Governor Perry wasted no time in calling another special session last Thursday (and again put his foot in his mouth, levying ad hominem attacks against Davis in the process). Senate Republicans displayed a resolute lack of shame in resorting to procedural abuse Tuesday night, in front of a crowd larger than most major television news audiences.

Senator Leticia Van de Putte, frustrated after being repeatedly ignored by Dewhurst, inquired, “At what point must a female senator raise her hand and voice to be recognized by her male colleagues in the room?” Her message is clear: the lieutenant governor has sculpted a culture of misogyny in the Senate chamber that silences advocates of women’s rights and, failing that, simply bends the rules.

So when, not if, Governor Perry signs Senate Bill 5 into law, what recourse does Texas have to preserve access to reproductive care? If last week has taught political observers anything, it’s that politics doesn’t have to be a pessimistic enterprise, especially given that courts have the potential to get it right when legislators err.

Senate Bill 5 is unconstitutional on two grounds. Collectively, Roe and Casey extend the conception of liberty established in Griswold v. Connecticut to a right to privacy inclusive of a woman’s right to choose. Federal appellate courts have issued stays to most restrictive abortion laws that violate the standard of viability (24 weeks) recognized by Roe. SB5 should clearly be lumped into this category. It warrants blockage simply because it bans abortion after 20 weeks of pregnancy.

But Casey v. Planned Parenthood altered the guidelines outlined in Roe. The plurality opinion, authored by Justices O’Connor and Kennedy, established the undue burden test, which ruled restrictions unconstitutional if they mounted a substantial obstacle in the path of women seeking an abortion of a non-viable fetus. It ought to be obvious that a bill forcing all but five of the state’s abortion clinics to close poses an undue burden to a woman’s right to choose. Especially in South Texas, where the only two existing facilities, located in McAllen and Harlingen respectively, will shut down if the bill goes into effect. When SB5 becomes law in Texas, both clinics will have persuasive cases for blocking its enforcement.

As the week—and year—progresses, we can merely hope that the proverbial gallery of protestors standing with Wendy Davis continues to drown out SB5 through the voice of public opinion. The only certain remedy to the GOP’s assault on women’s rights is to demand change at the ballot box. In the long-term, old habits will die hard if and only if the electoral incentives align. Otherwise, expect more of the same.