Who's Winning the War on Abortion, Birth Control, and Sex?

This piece originally appeared at Salon.

This was the year politicians and women’s groups started using “war on women” to refer to the Republican obsession with regulating uteruses. So if it’s a war, who’s winning?

The answer, frustratingly, is no one. This year saw the cementing of a consensus that neither side particularly likes: Abortion is still legal, but Republicans are doing an ever-better and more innovative job of making it as odious, expensive and shaming as possible to obtain. Although every side needs a sense of urgency to rally the troops, the good-ish news is that the federal court system helped hold back the tide on the worst laws. And for better or worse, anti-choicers got more honest than they’ve ever been about their hostility to birth control, which is used and supported by the vast majority of Americans.

Broadly speaking, the first half of the year saw Republicans in statehouses passing ever more outrageous laws — 80 in all this year, more than double the previous record — followed by a series of judges rolling their eyes and sending them home mostly empty-handed, for now at least.

Along the way, the pro-choice movement has made some unlikely allies. A quiz: Who recently suggested that the “Texas legislature wishes to prioritize an ideological agenda over the health and safety of women”? Judge Sam Sparks, a George H.W. Bush appointee, temporarily striking down a law that would have forced women to view ultrasounds and hear a fetal heartbeat before an abortion. Who, ruling on Nebraska’s so-called informed consent law that opened the door for suing doctors simply on the basis of a woman’s regret, scoffed that consequences and remorse are “part of the price we pay for our freedom. (Only Edith Piaf was without regret.)”? That would be Laurie Smith Camp, appointed to the federal bench by George W. Bush.

Meanwhile, a Clinton-appointed judge enjoined a particularly audacious new South Dakota law that would have imposed the longest waiting period in the country and forced women to visit religious-based crisis pregnancy centers whose explicit aim is to talk them out of an abortion. Judge Karen Schreier wrote that the last provision “humiliates and degrades [a woman] as a human being.” In those cases, both Nebraska and South Dakota, in apparent realizations that they overreached, won’t appeal.

“Judges know the score,” says Linda Greenhouse, who since retiring from the New York Times has co-edited a book and several legal articles focusing on reproductive rights. “They know that there’s a movement out there that’s going to push and push and push, which the political system in some of these states seem powerless to stop. These enactments have certainly gone beyond anything the Supreme Court has permitted.”

What the Supreme Court has permitted is not, in fact, what’s laid down in Roe. Instead, women are living under the “undue burden” standard of Planned Parenthood v. Casey, which turns 20 next year.  To put it bluntly, you’re allowed to burden a woman seeking an abortion, but only so much. Nancy Northrup, president of the Center for Reproductive Rights, says of Casey, “I think 20 years have shown that  is unworkable. What does it mean that you have a fundamental right to access abortion services but the government can make it really hard to do so?”

But given the court’s current composition, that’s the best pro-choicers have implicitly decided they can hope for – Casey’s author, Sandra Day O’Connor, has been replaced by Samuel Alito, and the last time co-author Anthony Kennedy ruled on abortion, in 2007, he sounded distinctly sympathetic to unscientific anti-choice claims. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” he wrote. (Lack of reliable data has never stopped the anti-choice side before – the attorney general of South Dakota is still demandinga rehearing from the circuit court on an earlier law forcing doctors to push a phony link between abortion and suicide.)