The Last Decade Was Disastrous For Abortion Rights. Advocates Are Trying To Figure Out What’s Next.

This year, the battle over abortion rights reached a fever pitch. That’s what this entire decade was building toward.

From 2010 to 2019, a few states passed laws making abortion more accessible.
However, far more states became much more restrictive.
Source: Guttmacher Institute

As the decade draws to a close, the national right to abortion is in the most vulnerable place it’s been in decades.

Since 2010, hundreds of laws restricting abortion access have been enacted all over the country, making the procedure less attainable and forcing abortion clinics to close. The US has gone from having around 1,720 facilities that perform abortions in 2011 to 1,587 in 2017 (the last year reproductive rights group Guttmacher Institute surveyed). As of this year, there are six states with only one abortion clinic left. Twenty-five abortion bans were signed into law in 2019 alone, leading to nationwide protests. Though all, so far, have been blocked by the courts, a major fight over abortion rights at the Supreme Court is yet to come.

This decade has been one of the most significant in abortion rights since the landmark Supreme Court decision Roe v. Wade in 1973. Even as access has been restricted, the public attitude and openness around abortion has changed drastically — it’s represented in film and television more than ever before, it’s discussed more often in political campaigns, and recent polling shows a large majority of Democratic voters support a “woman’s right to abortion” as a “must-have” for their ideal presidential candidate.

Tresa Undem of PerryUndem, a polling firm, said she’s noticed a huge shift since 2007, when she first started hosting focus groups around the country to gauge people’s opinions on abortion.

States with 10 or fewer abortion-providing clinics in 2017

Source: Guttmacher Institute

At the beginning of the decade, Undem said, she often had to pull out the tissues during the focus group meetings. “Inevitably someone in the group would speak up and disclose that they had an abortion, and suddenly the air would go out of the room. I’d have to grab the Kleenex box. Everybody would thank her for sharing, and I’d really have to navigate the situation,” Undem said. “And the men didn’t want to talk about it at all. We would have to apologize profusely to them at the end like, I’m so sorry you had to come here and talk about abortion.”

Now, Undem said, it’s completely different.

“In a focus group today, quickly someone will say, ‘So when I had my abortion…’ and the conversation doesn’t stop. Everyone’s just like, ‘Uh-huh,’ and the conversation continues,” she said.

But even as the stigma around the issue has waned, access to abortion has declined. On March 4, 2020, the Supreme Court will hear its first case pertaining to abortion rights since both of President Donald Trump’s nominees have solidified a conservative majority on the bench, potentially put the national right to abortion in jeopardy.

When Barack Obama was elected president in 2008, things were looking up for abortion rights advocates. He often mentioned abortion rights in his campaign, had a generally pro–abortion rights voting record, and made clear that his biggest priority was enacting the Affordable Care Act, which would include nationwide no-cost coverage for contraception. But when the 2010 midterms came around, that bright horizon started to darken.

“It’s been a rough decade for those that support abortion rights,” Elizabeth Nash, the state trend analyst for Guttmacher, told BuzzFeed News. Nash has been working in Guttmacher’s Washington, DC, office and studying state-level abortion legislation since 1999. She said she has watched anti-abortion policies grow “like a steady drumbeat getting louder each year.”

Most of the 10 experts on abortion rights who spoke to BuzzFeed News for this story — ranging from conservative anti-abortion lobbyists to former Planned Parenthood president Cecile Richards, acting Planned Parenthood President Alexis McGill Johnson, and NARAL Pro-Choice America President Ilyse Hogue — credited several developments for this massive shift, but many agreed the 2010 elections were significantly responsible.

2010 was the year of the tea party, the hyper-conservative Republican movement with figureheads such as Sarah Palin, Rand Paul, and Michele Bachmann. It helped flip the House and a swath of the country’s state legislatures from blue to red.

“The tea party movement came out of a frustration with Washington being broken and frustration from the pro-life movement that their party wasn’t representing them,” Tom McClusky, vice president of government affairs for the anti-abortion group March for Life, told BuzzFeed News. McClusky said it was then he started seeing enthusiastic reactions from conservative supporters when he talked about abortion.

“I spoke at some massive tea party rallies at the time, and I was the only one talking about the [pro-]life issue, and the crowd went wild,” McClusky said. “The tea party was the first national voice of frustration the pro-life movement has ever had ... and it’s shaped the party today.”

Anti-abortion advocates and politicians had been pushing laws to regulate and limit access to the procedure since it became legal nationwide; but after the 2010 elections, the movement picked up speed and fervor. By June 2010, the number of abortion restrictions introduced in state legislatures had already surpassed the number introduced in any year since the early 1990s.

“In January 2011, the bills just started flying; the restrictions started moving very quickly,” Nash said. “It kick-started the wave of abortion restrictions we’ve been seeing to this day, and because the pendulum hasn’t fully swung back on the state level, it’s been hard to push back.”

It is striking how similar the fight over legal abortion rights was at the beginning of the decade to the news about abortion today. “Where Abortion Rights Are Disappearing,” “Ohio Abortion Bill Poses Biggest Challenge to Roe v. Wade Yet,” “Federal Judge Blocks South Dakota Abortion Law”: All these headlines are from 2011, but they could have been from the past few months.

In the first half of this decade, the anti-abortion movement strengthened and honed its chief strategy: passing “targeted restrictions on abortion providers,” known by abortion rights advocates as TRAP laws. These laws often came from “playbooks” of model legislation written by national anti-abortion groups like Americans United for Life and the National Right to Life Commission and distributed annually to friendly state lawmakers around the country. These laws regulated aspects of abortion clinics, such as the size of their hallways, and required that abortion doctors have admitting privileges at a nearby hospital, despite the procedure very rarely requiring emergency medical attention. Other laws required doctors to read an anti-abortion script to patients seeking an abortion, mandated providers perform ultrasounds and play the fetus’s heartbeat for the patient before an abortion, or imposed compulsory waiting periods for patients seeking abortions, and necessitated parental consent for minors to get the procedure.

These laws were all proposed with the premise that they make abortions safer or ensure patients understand the gravity of what they are about to do. In reality, the laws have prevented many people from getting abortions they wanted and caused clinics to close. Some people couldn’t take the time off work to travel and wait the required time or couldn’t get their parents’ permission, and clinics struggled with the financial cost of complying with new regulations. As more laws passed, more clinics closed.

At first, the laws passed relatively quietly with little public understanding or outrage. They are, after all, very technical; some seem like a line in your insurance claim you gloss over, others like construction ordinances.

Then in 2012, a Virginia bill kicked off national outrage over transvaginal ultrasounds. The legislation required doctors to perform an ultrasound before an abortion, and specified that whichever type of ultrasound gets the best image of the embryo or fetus should be used. But abortion rights advocates pointed out that because many people get abortions in the first 12 weeks of pregnancy, transvaginal ultrasounds — sticking a probe into the vagina — would often be the only option. The idea of a law that required an extremely invasive procedure without the consent of the patient led to cries of “medical rape.” In response, several states amended their bills to require less invasive ultrasounds, but the public’s attention had been captured.

This attention culminated in June 2013, when a state senator in Texas named Wendy Davis staged a 13-hour filibuster on the floor of the legislature. Davis attempted to block a bill that would ban abortions in the state after 20 weeks and require doctors performing them to have hospital admitting privileges. As she spoke, standing in business attire and hot pink running shoes, activists and supporters gathered in and around the state capitol building, watching from the gallery seats or on their phones. The world tuned in, and then-president Obama tweeted about it. Davis successfully blocked the bill and became a national figure.

Several advocates who spoke to BuzzFeed News said that Davis’s filibuster crystallized the impact of the regulations being passed in the states for a national audience that was just starting to pay attention, and drove home how seriously Americans should be taking these new developments.

The bill Davis was attempting to defeat was passed and signed into law by then–Texas governor Rick Perry less than a month after her filibuster. The Center for Reproductive Rights then challenged the law in court and eventually won, one of the biggest victories for the reproductive rights movement of the decade: the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt. In that case, the Supreme Court ruled that the Texas law placed an “undue burden” on access to abortion, and because of that, it violated the Constitution.

The case the Supreme Court will consider in March 2020 deals with an almost identical law, this time in Louisiana. Some reproductive rights advocates hope that the justices will reaffirm the Whole Woman’s Health decision, but others fear that the justices are taking up the case to overturn it.

From “Safe, Legal, and Rare” to #ShoutYourAbortion

In 2008, when Hillary Clinton ran against Obama for the Democratic presidential nomination, she famously said that abortion should be “safe, legal, and rare,” a sentiment coined by her husband in the 1990s, which was still shared by many in the Democratic Party. By her 2016 campaign, she had dropped the “rare.” During the campaign, Clinton pushed to end the ban on federal funding for abortion that had received bipartisan support for 40 years — calling for a repeal of the Hyde Amendment, the law that blocks federal funding from going toward abortion. For the first time, the Democratic Party adopted repealing the Hyde Amendment as a part of its official platform at the 2016 convention.

One reason for this shift was social media. People who had previously felt alone in their experiences were finding each other and sharing. Others were exposed to life experiences they wouldn’t otherwise encounter, stories that weren’t being told in the press or the movies. This cultural shift gave abortion rights advocates and lobbyists something to point to when speaking to Democratic politicians and trying to get them to publicly support the group’s causes. Abortion rights groups began to be able to convince Democrats that supporting their causes could actually win them votes.

"So many people told stories they shouldn’t have had to tell in order for people to start to humanize this situation," Cecile Richards, who was president of Planned Parenthood from 2006 to 2018, told BuzzFeed News on Monday.

In 2015, after undercover videos of Planned Parenthood workers discussing the distribution of fetal tissue were released, conservatives pushed to defund Planned Parenthood (and nearly shut down the government). In response, the online campaign #ShoutYourAbortion began. The hashtag aimed to drum up support for Planned Parenthood by encouraging people to publicly share their abortion stories to defeat the stigma and normalize the procedure. The “1 in 3” campaign, which shared information about how common it is for people in the US to have abortions, served a similar purpose.

Another factor in the shift was Hollywood, Richards told BuzzFeed News. Under her leadership, Planned Parenthood worked more frequently with directors and writers on movies and television shows to help them accurately depict the abortion process and to encourage them to frame it as something normal instead of tragic. Reports from the abortion rights organization Advancing New Standards in Reproductive Health, which tracks the depiction of abortion in Hollywood, show that over the past few years, plotlines depicting abortion have become more comedic “instead of the fraught medical and legal dramas that were the traditional genre for such depictions,” the group’s 2018 report stated.

Much of the shift can also be attributed to the work of the reproductive justice movement — a branch of abortion rights advocacy that focuses on economic and racial inequality in reproductive health access. Restrictions on abortion access have always disproportionately affected women of color, and reproductive justice groups have been around for decades, often in the form of grassroots organizations working on shoestring budgets.

“While [reproductive justice] might only be coming into the public consciousness over the last decade or so, it’s been around much longer than that,” Destiny Lopez, codirector of the reproductive justice group All Above All, told BuzzFeed News. “Women of color have been at the front lines of this movement probably since before we started fighting for Roe, but certainly afterwards.”

In 2014, Monica Simpson of the reproductive justice group SisterSong published an open letter to Planned Parenthood in the abortion rights–focused outlet Rewire, challenging the lack of diversity in the upper echelons of reproductive rights leadership and asking for a “face-to-face meeting” with the nonprofit’s leaders. Planned Parenthood acquiesced, and the groups began working together on the Hyde Amendment and other abortion funding issues. SisterSong and other groups like All Above All were largely responsible for making the effort to repeal the Hyde Amendment an issue that nearly every Democratic 2020 presidential candidate now supports.

Before the 2016 election, the future of abortion rights seemed bright to advocates. They were going to have the first woman president in Hillary Clinton, a candidate they had convinced to support many of their major causes. With that kind of stability, Richards had reportedly prepared to leave the organization if Clinton were to win.

Instead, the election resulted in a stridently anti-abortion administration.

Tom McClusky of March for Life said that the general impression among Washington’s influential anti-abortion conservatives is that Trump is “newly converted” to his “pro-life” beliefs. He added, “It’s because of the tea party movement that Trump felt like he had to make a bargain. He’s a businessman. He does not come from a pro-life background, but he made these bargains to win.”

Ilyse Hogue, the NARAL president, told BuzzFeed News that Trump’s election — especially his 2016 interview in which he suggested that women should receive “some sort of punishment” for having an abortion — gave certain factions of the right the “okay to openly hate women,” she said. “They were empowered by him.”

“And that’s what we’re still seeing today, right down to my home state of Texas, where they held a hearing on the death penalty for women who seek abortions,” Hogue added. (The bill, which was introduced in April 2019, was not taken up for a vote.)

The Bans Begin

When the first ban on abortion after 6 weeks of pregnancy was introduced in Ohio in 2011, it wasn’t even taken up for a vote. The feeling among anti-abortion legislators across the country throughout the first half of the decade was that those kinds of extreme bans would never hold up to court challenges. But after Trump’s election, and particularly after Supreme Court Justice Brett Kavanaugh’s confirmation in 2018, that changed.

“After this large wave of restrictions moving across the country for the past several years, legislators in those states were primed to start passing abortion bans because they’d already passed every other restriction,” Elizabeth Nash of Guttmacher said. “There was not much left to do besides ban abortion … to finally take a real step toward their ultimate goal, to ban abortion, whether it’s piling on restrictions or banning it entirely.”

Anti-abortion advocates and legislators saw a friendly administration that would appoint conservative federal judges and Supreme Court justices who would vote their way.

Since Kavanaugh’s confirmation, 27 bans on abortion — ranging from restrictions after 18 weeks of pregnancy to near-total bans — were enacted in 12 states, a rate this country has never seen before. And this year, Arkansas, Kentucky, Missouri, and Tennessee have adopted legislation that would immediately ban abortion statewide if Roe v. Wade were overturned (four other states already had similar laws in place).

Three advocates who spoke to BuzzFeed News said the abortion rights movement has lost the battle in the courts. Even if no other state passes an abortion ban, those laws are already making their way up to a potentially accommodating Supreme Court.

With the possibility of Roe being overturned, some advocates say it’s time to focus on enacting abortion protections on the state level.

“If you support access to abortion, Roe v. Wade is no longer that relevant,” Undem told BuzzFeed News, saying that she believes, as far as the courts are concerned, the anti-abortion side has already won and the abortion rights movement should come up with a new plan. “Voters don’t know that yet. They think [Roe is] really relevant, and it’s where they focus.”

Advocates on both sides of the issue told BuzzFeed News they don’t think that Roe will be overturned in the near future, but agreed the focus should be on the states.

McClusky, who is more optimistic about Roe being overturned than some of his anti-abortion colleagues, said that on the state level, he sees the abortion rights side as being pretty successful this past year.

“Everything our side has passed is stuck in the courts, but everything their side has passed is law,” McClusky said. “So it’s not all doom and gloom for them, even if that frame helps rally voters. They’ve actually done pretty well this year.”

Though anti-abortion advocates have been winning with the help of the Trump administration, those recent threats and the massive protests this summer have galvanized voters who care about abortion rights and Democratic lawmakers in the states, Hogue said. Guttmacher’s annual state policy trend report released Tuesday showed that, this year, 36 state measures intended to protect abortion were enacted, up from five in 2018.

"Roe is the law of the land, but it is virtually insignificant in many states because of all the restrictions and challenges that every woman in those states face,” Richards told BuzzFeed News over the phone Monday. “It is a state-by-state fight. It will be, and it always was." ●

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