Even by the customarily disingenuous terms of anti-abortion politics, it’s been a week. Virginia lawmaker Kathy Tran is getting death threats and being accused of promoting infanticide after introducing a bill that would make it marginally easier to get a later abortion. Donald Trump tweeted Thursday that Democrats are “becoming the party of late term abortion,” and in an interview, repeated his debate-era accusation that “Hillary Clinton was willing to rip the baby out of the womb … That’s what it is.” All this, according to conservatives, is set to get Trump reelected.
Virginia law already allows for third-trimester abortions — about one percent of all abortions, according to the CDC — if three physicians agree a pregnant woman’s mental or physical health is at risk. Tran’s bill would have reduced the requisite number of doctors to one, and removed the requirement for anticipated harm to be “substantially and irredeemably” were she denied an abortion. (“How confident do you have to be that a woman is going to die?” a Harvard Medical School professor and specialist in maternal-fetal medicine once put it to me. “What if there would be complete loss of renal function — does that not merit consideration? What if a woman is going to go blind if she remains pregnant? Those are the kind of nuances that are hard to make bumper stickers out of.”)
Though you wouldn’t know it from the outrage that ensued, the recommendations in Tran’s bill are consistent with federal law. Even the National Review’s Ramesh Ponnuru admits that “the central provisions of these laws and proposed laws do not liberalize abortion policy beyond the status quo” set in Roe v. Wade, which, at least on paper, dictates that states can only ban abortion after a fetus is viable, if they provide necessary exceptions for health and life of the woman.
But on Tuesday, Republicans circulated a video in which a colleague demanded Tran answer for a bogus hypothetical of a woman requesting an abortion during labor. Tran, in her words, “misspoke,” and said that would be allowed. In a subsequent interview, Governor Ralph Northam, a Democrat and a physician, talked about care for an “infant” delivered “in cases where there may be severe deformities, there may be a fetus that’s non-viable,” which was then taken out of context to claim he too was supporting infanticide. (Northam also said he thinks more than one physician should weigh in, suggesting he doesn’t even support Tran’s bill.) Conservatives, only too happy to seize what they see as the moral advantage in the age of Trump, have taken the infanticide lie and run with it.
To hear Republicans talk about it, you’d think women drag out their pregnancies, wantonly waiting to abort until the contractions set in merely for the fun of it. This is, as my colleague Sarah Jones wrote, “the stuff of pulp fiction, and the myth bears little resemblance to reality.” Here’s what’s real: The same people who are hand-wringing over imaginary infanticide are right now, in a very real way, fighting for policies that increase the number of later abortions, and that for some women, amount to a ban on abortion at all stages of pregnancy. If they succeed, they can thank Brett Kavanaugh.
Stacked by Trump appointees, emboldened by Kavanaugh’s ascent, lower courts have increasingly dared the Supreme Court to stop them from letting states do whatever they want to restrict abortion. That’s what happened when the Fifth Circuit Court of Appeals signed off on a Louisiana law, scheduled to go into effect on February 4, which requires abortion providers to get credentials at local hospitals that aren’t medically necessary and that many hospitals refuse to give. In 2016, the Supreme Court blocked a nearly identical law in Texas, thanks to a swing vote from Anthony Kennedy — but we live in Kavanaugh’s world now. Louisiana’s abortion providers have asked the Court for emergency help to keep their doors open, and no one knows what’s next: Chief Justice John Roberts, who might otherwise be freaked out about what overturning such a recent precedent would do to the court’s legitimacy, was in the dissent on the 2016 decision. Other states, some with only a single clinic left standing, are waiting to follow Louisiana’s lead.
So what do clinic regulations in Louisiana and Texas have to do with later abortions? Well, the first year the Texas law was in effect, state statistics showed that abortions after 12 weeks went up 27 percent. In other words, a supposedly pro-life law caused more of the later procedures that the movement says it decries. That’s unsurprising if you have any notion of why people get abortions later in pregnancy. Sometimes it’s the sort of heartbreaking tragedy politicians turn to: a life-threatening condition for mother or fetus, a teenager pregnant as the result of rape. But sometimes, a later abortion is a choice. More often than not, that choice is made by a politician or a judge.
Comb the research on later abortions and you’ll see that many of the reasons for having later abortions — not knowing you’re pregnant because you don’t have access to sex ed or a regular checkup, saving up to pay for an abortion your insurance doesn’t cover only to see the price rise as your pregnancy wears on, not having access to effective and affordable birth control — are public policy choices someone else made. It was Republicans who chose to portray expanding access to birth control, a pretty damn effective way to reduce unwanted pregnancies, as forcing nuns to provide abortions. It was Republicans whose policy priorities have helped the number of abortion clinics decline 7 percent between 2008 and 2014, making people have to travel that much further. And of course, it’s Republicans who have Democrats contorting over edge-case hypotheticals when real, living children are dying in U.S. custody.
What happened this week reinscribes some age-old battle lines: Republicans want to change the subject to later abortions, even as they seek to gut the far more politically popular Roe v. Wade. But some things have changed. Yesterday’s anti-abortion activists are today’s Trump-appointed judges. And yesterday’s furious pro-choice women (and some men) are now in state legislatures, particularly in bluer states, ready to unapologetically defend abortion access where the court might fall short, making sure this won’t be the last spurious “infanticide” debate.
Tran is one such woman. A former refugee and a mother of four, she decided to run for office for the first time out of fury at Trump, who was inaugurated on her daughter’s due date. She was sworn in to Virginia’s House of Delegates with her toddler curled up asleep on her shoulder. That 2017 election, a passel of firsts, turned out to be a preview of the kind of sparkling diversity Americans chose in the midterms. It’s no coincidence the entire state legislature in Virginia is up for reelection this fall, just in time for a 2020 redistricting fight. We should consider this a dress rehearsal of our next presidential election. Republicans will seek to drive political wedges on the backs of women. And women like Tran will answer them.