By / Aug 5

On Tuesday, voters in Kansas rejected a proposed amendment to their state constitution that would have given state legislators the authority to pass future laws restricting abortion. 

The “No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment” (also called the “Value Them Both” amendment) was on the ballot in Kansas as a legislatively referred constitutional amendment. A vote in favor of the amendment would have added language stating that nothing in the state constitution creates a right to abortion or requires government funding for abortion and that the legislature has the authority to pass laws regarding abortion. By rejecting the proposal, the current legal precedent established in Hodes & Nauser v. Schmidt (2019) remains in effect. That ruling states that the Kansas Bill of Rights provides a right to abortion.

Almost 60% of voters opposed the amendment (538,410 votes against and 375,850 in favor), but less than 1-in-3 registered voters in the state turned out to vote this year. Yet despite the low overall turnout, it was still the most votes ever in a Kansas primary.

According to Politico, “The referendum’s result particularly shocked the state because the pro-amendment campaign had some structural advantages heading into Tuesday, and they were ahead in recent polls.” The general assumption was that the pro-life measure would be approved since the state has been solidly Republican for decades (the state has more than 850,000 registered Republicans compared to 495,000 registered Democrats). 

Because this was the first opportunity voters had to directly vote on the issue of abortion since the Dobbs decision overturned Roe, it is being trumpted as an unequicoal win for the pro-abortion forces, and a bellweather for how voters will respond when given the choice. That belief will soon be put to the test. Currently, there are four other ballot measures addressing abortion—the most on record for a single year—that will be voted on in 2022. Measures have been certified for the ballot in California, Kentucky, Montana, and Vermont.

This vote may also confirm what many pro-life activists have suspected: that most Americans are both pro-life and pro-choice—that is, they believe abortion is wrong and yet also believe the choice of whether to have an abortion should be left to the woman, especially in the earliest stages of pregnancy. Though according to a recent poll, the majority of Americans are not in favor of abortion without restrictions. Seventy-two percent of those polled support an abortion ban after 15 weeks

A more pessimistic assessment is that Americans simply aren’t as opposed to abortion as we would hope. Even among demographics that are often considered pro-life stalwarts, significant numbers self-identify as “pro-choice.” A Gallup poll taken earlier this year found that more than 1-in-4 who identify as Republican (28%) or conservative (28%) say they are pro-choice. The same is true for those who attend religious services weekly (26%), and is even higher for those who attend nearly weekly/monthly (52%). 

While the Kansas vote and some of these other statistics feel like a setback, pro-life Christians can take comfort in the realization that this is what many within the movement expected. “If we held national referenda, one on abolishing Roe in favor of some policy regime [to be determined in the future] would almost certainly have lost in most states,” says Ramesh Ponnuru. “Pro-lifers by and large understood that the polls in favor of Roe didn’t mean Americans were deeply committed to an abortion regime as expansive as the one Roe actually entailed.”

What this means is that we still have considerable work to do to convince our fellow Americans—and even some of those who claim the name of Christ—of the need to protect the most vulnerable humans among us. In our churches and our communities, we lovingly and boldly proclaim the truth of God’s Word and demonstrate the inherent dignity belonging to all of our neighbors, even the youngest and most dependent among us. 

“This is how we proceed,” said Jordan Wootten in a recent ERLC article on American’s view of abortion. “By walking in step with the Spirit (Gal. 5:25) and bearing his fruit, we perform this needed work with love, kindness, and gentleness, patiently enduring hardships, and hoping for the day when abortion becomes illegal and unthinkable to all Americans all across this country.”

By / Dec 13

Last week the Supreme Court of the United States (SCOTUS) issued two rulings dealing with Texas’ Senate Bill 8 (SB 8), or the Texas Heartbeat Act.  In Whole Woman’s Health v Jackson, the court considered whether the petitioners (abortion providers) may pursue a pre-enforcement challenge to SB8. In United States v. Texas the court addressed the federal government’s separate challenge of SB8. 

SB 8, which prohibits physicians from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance, was allowed to go into effect in September, after SCOTUS declined to issue an injunction requested by abortion providers in Texas. This challenge, known as Whole Woman’s Health v. Jackson, made its way back up to SCOTUS in the October docket, to determine if abortion providers may challenge the constitutionality of SB8. 

Last week, the court issued its opinion in Whole Woman’s Health v Jackson, concluding “that a pre-enforcement challenge to SB 8 under the Federal Constitution may proceed past the motion to dismiss stage against certain of the named defendants but not others.” The ruling stated that some of the named defendants in the case, including specific judges and clerks, could not be sued for enforcing SB8 under the doctrine of sovereign immunity, which protects government actors from being sued for carrying out their duties. Other defendants in the case, including Texas Medical licensing officials, are allowed to be sued. 

Ultimately, the ruling means that for now SB 8 still stands, but abortion providers are now able to continue to challenge the law in the lower courts. The opinion by Justice Gorsuch stresses “the ultimate merits question” of whether the Texas law is constitutional “is not before the Court.”  

At the same time, the Court also released its opinion in United States v Texas. The case originated on Sept. 9, when U.S. Attorney General Merrick Garland announced the Department of Justice was filing suit in federal court against the state of Texas over SB 8. The suit sought a “declaratory judgment that (the law) is invalid under the Supremacy Clause and Fourteenth Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.” The suit sought to enjoin the “State of Texas, including its officers, employees, and agents, including private parties” who would bring a suit under SB 8. 

The court ruled that the federal challenge of SB 8 “as improvidently granted,” meaning the court should not have initially accepted the case. 

What does the law do?

SB 8 bans abortion once a fetal heartbeat is detected, which typically occurs anywhere between five and eight weeks into a pregnancy. There are no exceptions made for rape or incest, but there is an exemption made for “medical emergencies.”

The Texas Legislature passed SB 8, and Gov. Greg Abbott signed the legislation into law in May. The bill took effect on Sept. 1, 2021. Of note, ERLC trustee Kelly Hancock, a state senator in Texas, was a primary sponsor of this legislation.

What makes this different from other attempts to limit abortion?

A number of states have introduced fetal heartbeat bills, but until now, they have been blocked by the courts. While the Texas Heartbeat Act’s aim is similar to the other heartbeat bills, the enforcement mechanisms are different.

The law takes a novel legal approach to limit abortion by tasking enforcement of the measure “exclusively through private civil actions.” Essentially, the law allows any private citizen to bring a civil lawsuit against any individual who “performs or induces” an abortion, or “knowingly engages in conduct that aids or abets” an abortion, including the payment for or reimbursing the costs for an abortion. Individuals who prevail in their lawsuit will be awarded “statutory damages in an amount of not less than $10,000.”

Rebecca Parma, a senior legislative associate with Texas Right to Life, notes, “No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions.” 

What does this mean for the Court’s abortion jurisprudence?

The Court recently heard a challenge to Mississippi’s ban on abortion at 15 weeks in a case titled Dobbs v. Jackson Women’s Health Organization. However, Mississippi has asked the Court to completely overturn both the Roe v. Wade and Planned Parenthood v. Casey decisions that have protected abortion for the last 50 years. The Court’s decision to not intervene in this instance, where a state law circumvents Roe, could reasonably be seen as an indication the new conservative majority may change direction as it relates to abortion. However, there are still several challenges to SB 8 working their way through the court system that could affect the law.

The ERLC submitted an amicus brief in the Dobbs case stating that the U.S. Constitution “does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.”

How should Christians think about this development?

As we have articulated elsewhere, every committed pro-life Christian wants the immediate end and eradication of abortion. In fact, we want to strive for a culture where abortion is illegal and unthinkable. As laws are introduced and litigated, Christians can and should be on the frontlines of caring for vulnerable women and their preborn babies. We have the opportunity to demonstrate the love of Christ and share the good news of the gospel by tangibly serving women in crisis. 

While we work toward that objective, we should appreciate every step that can be taken –– whether accomplished through legislative channels, court decisions, or cultural developments –– to save one additional preborn life. Until that day arrives, the ERLC will always stand for life in the public square, before the courts, and before Congress.

By / Sep 24

Today, the U.S. House of Representatives passed a bill titled the “Women’s Health Protection Act of 2021.” This vote was largely along party lines, with every Republican and only one Democrat, Rep. Cuellar (D-TX), voting against the harmful bill. This piece of legislation is one of the most pro-abortion bills to have ever passed the House.

Speaker Pelosi brought this bill to the House floor as a direct response to the lifesaving Texas Heartbeat Act (SB8) that went into effect at the beginning of September.

What is the Women’s Health Protection Act of 2021? 

The Women’s Health Protection Act of 2021 removes all restrictions and limits on abortion and allows for abortion up to the point of birth. Additionally, this bill removes all pro-life protections at the federal and state levels and eliminates a state’s ability to legislate on abortion. This bill also fails to protect the conscience of American taxpayers and would force taxpayer dollars to pay for abortions. Longstanding pro-life protections such as the Hyde Amendment and the Weldon Amendment would be removed.

Despite the bill’s name, vulnerable women and families will only be put more at risk if the Women’s Health Protection Act were to ever become law. Additionally, abortion is not healthcare. If human dignity is given to each person when created in the womb, then abortion is not only an assault on the image of God but also causes irreparable harm on a vulnerable life. We believe abortion denies precious human lives both personhood and protection, and therefore cannot be considered as healthcare.

The role of government should be to protect these vulnerable, preborn babies, not to exploit them by removing restrictions on abortion that put their lives in grave danger.

This bill is extraordinarily pro-abortion and ought to shock and grieve our consciences.

How is the ERLC involved?

The ERLC is strongly opposed to this bill and any effort to legalize abortion. We urge the Senate not to pass this destructive piece of legislation. It would put thousands of vulnerable, preborn lives at risk and steamroll over the the consciences of millions of Americans who do not wish to pay for or be compelled to provide abortions.

The ERLC will always advocate for life before Congress, the courts, and in the public square, and we’re are working toward a day when abortion is both unnecessary and unthinkable. We desire to see a culture where mothers are supported and provided with resources and where life is honored and valued. 

By / Sep 10

On Thursday, President Biden took the step of expanding the list of workers who would be required to receive a COVID-19 vaccine or submitting to regular testing. His announcement follows the recent decision to mandate that all federal employees receive the vaccine or face possible disciplinary action. These changes reflect a shift from the previous posture of the administration against federal vaccine mandates. While it is possible for individuals in private workplaces to opt out of a vaccine if they are tested regularly, this regulation does reflect a more aggressive posture by the administration to control the surge in cases of the delta variant that is sweeping the country.  

President Biden’s directive comes amid surging cases of the delta variant across the country, as well as new strains of the virus, lambda and mu. The rule will require all employers with more than 100 employees to ensure that their workers are vaccinated or submit to weekly testing. They also must provide paid time off for employees wishing to be vaccinated. The rule comes as many larger private employers are already implementing similar measures including CVS Health, Walmart, and Fox News. The rule faces legal challenges and has already faced opposition from state officials who claim this is an overreach of federal authority. Similarly, the rule will likely face implementation challenges as the vaccine and testing date from each employer will need to be stored and verified by OSHA for enforcement purposes. The penalties for noncompliance have not been released as of the time of publication.  

What does an OSHA temporary emergency standard mean?

The regulation will be drafted and implemented as part of the Occupational Safety and Health Administration (OSHA) of the Department of Labor. Established by President Richard Nixon in 1970, the agency’s mission is “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.” OSHA’s mandate covers most private and public sector employers, making the vaccine mandate announcement one of the most wide-reaching to date. 

The rule, issued as a temporary emergency standard, can be used when OSHA demonstrates that workers face a grave danger and that the rule will address that danger. Further, employers must have a reasonable chance of implementing the rule. These emergency standards would override existing state policies except in those states where there is an OSHA-approved state level agency. For those states, they would have a window of time to adopt a rule that is as effective as the federal standard. 

This is not the first time that OSHA has intervened in the COVID pandemic. In June of this year, they announced a rule requiring healthcare employers to provide protective equipment such as masks and gloves, ensure proper ventilation, and screen patients at risk for COVID. This emergency standard was limited to healthcare employers (because of the group’s high risk factors), though additional optional measures were disseminated for other industries such as manufacturing, retail, and food supply chains. 

How will this affect churches and religious organizations?

With the implementation of this standard, many churches will likely not be affected because they will not meet the requisite number of employees. There is a subset of churches who will meet the threshold and thus could face OSHA violation charges for not complying. Religious organizations such as Christian colleges and seminaries, as well as religious hospitals, will be more likely to be subject to the rule’s standards because of the size of the organization and the kinds of work that their employees perform.

Religious employers are subject to some oversight of OSHA depending on the kind of employment and jobs performed. Where the organization only employs individuals for religious services (a choir director, organist, clergy, etc.), they are not classified as an employer and therefore are not subject to OSHA oversight. However, where a religious employer employs a worker for secular purposes, they are subject to the rules set by OSHA. Examples of the latter would include a private hospital or school operated by a religious organization, administrative staff of the organization, or staff employed for commercial activity such as running a bakery. 

At the time of publication, the regulatory language is unavailable so it is unclear what type of medical or religious exemptions may be granted under this new OSHA standard concerning the COVID-19 vaccine. 

How should Christians think about this? 

While some have argued that widespread vaccine mandates infringe upon one’s religious freedom, Christians should be very judicious when making claims of religious liberty violations. As Jason Thacker recently wrote,

. . . it is important to remember that approaching questions about religious liberty claims is something of deep consequence. We must not allow or give support to mere personal or political preferences masquerading as religious liberty claims. Indeed, doing so is not only morally disingenuous but also can do long-term damage to the credibility of pastors, churches, and Christian institutions in our communities. At the same time, pastors should graciously and patiently consult with those seeking such exemptions or accommodations in order to determine whether the request is predicated on sincere religious grounds.

In a time of intense polarization and a continued public health crisis, we must remember that religious liberty is fundamental to the Christian faith and to American life. It is a right that our government is designed to recognize, respect, and uphold.

The ERLC has emphatically stated since the beginning of this public health challenge that government officials should opt for providing guidance over mandates, while at the same time seeking to uphold the free exercise of religion. Elected officials and local health experts should be actively partnering with pastors and churches to serve local communities as this pandemic rages on. Whether through vaccine drives or combating the widespread misinformation, community partnerships and respecting religious freedom instills more confidence within the faith community about efforts to combat the virus and protect our communities from its devastating effects.

By / Aug 6

As American culture continues to transform, one of the areas of particular concern for communities of faith is the preservation of religious liberty and all its applications. From the pew to the public square, people of faith have long enjoyed accommodations allowing them to act according to their conscience, abstaining from actions that would violate their deeply held religious convictions, for instance. This has long been a hallmark of life in America.

But recent actions by the current administration threaten to undermine these fundamental exercises of freedom. The Department of Justice, on July 30, dismissed a lawsuit filed by its Civil Rights Division against the University of Vermont Medical Center (UVMMC) which stated that UVMMC, in forcing a staff member to participate in an abortive procedure despite her stated moral objections, violated “the federal anti-discrimination statute known as the Church Amendments.” What proved to be a clear violation of the law by UVMMC ended with “no admission of guilt, no injunction, no corrective action, no settlement,” resulting in what Roger Severino says is “effectively a full pardon” for the organization. The ERLC joins Severino and the team at the Ethics and Public Policy Center in decrying this outrageous development. 

What was the lawsuit about?

On Aug. 28, 2019, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights issued a Notice of Violation stating that “after a thorough investigation and prolonged attempts to resolve the matter,” it was determined that UVMMC “violated the Church Amendments (42 U.S.C. 300a-7) by forcing a nurse to assist in an elective abortion procedure over the nurse’s conscience-based objections.” 

In response to these findings, “the Justice Department’s Civil Rights Division”, on Dec. 16, 2020, “filed a civil lawsuit in Vermont federal court against the University of Vermont Medical Center” for its egregious act of discrimination. 

In the Justice Department’s press release, referring to the aforementioned “Church Amendments,” the statement declares that “that statute prohibits health care entities like UVMMC from discriminating against health care workers who follow their conscience and refuse to perform or assist with abortions.” The statement goes on to call UVMMC’s actions “an indecent coercion that violates everything this country stands for,” a “shocking and outrageous attack against the right of all people in this free country to follow their conscience,” and stating, “the U.S. Department of Justice will not stand for it.” 

Why was the lawsuit dropped?

Shockingly, though, the newly appointed Justice Department had a dramatic change of mind, deciding to “stand for it,” after all. 

According to Severino, the Department of Justice’s and HHS’ unusual step of dropping “a duly authorized lawsuit after it has been investigated and filed” is attributable to the newly elected and appointed administration. Since the violation, investigation, and eventual lawsuit all occurred under the previous administration, and seemed headed for some sort of lawful resolution, it is difficult to explain this move in any other way.

What happens next in this case?

Because the case was voluntarily dropped by the Department of Justice, it appears that no further action will be taken. As Severino pointed out, there was no admission of guilt, no order of injunction, no recommendation for corrective actions or measures, and no settlement awarded to the victim in this case. Furthermore, the victim herself has little-to-no legal actions at her disposal “due to nuances around private rights of action.” 

As such, the University of Vermont Medical Center will continue to receive federal funds “despite it having been found by the U.S. Department of Health and Human Services to have violated the law.”

What’s at stake in this case and others like it?

Considering the language used by Eric Dreiband, former assistant attorney general for the Justice Department’s Civil Rights Division, “everything that this country stands for” is at stake in a case such as this. 

Flagrant forms of discrimination like this against persons of faith are a direct violation of federal law, as the HHS Office for Civil Rights articulated in its Notice of Violation. Moreover, it is a transgression against one of the most fundamental human rights, freedom of conscience. If the outcome of this case is indicative of this administration’s intentions toward people of faith, then it signals a blatant disavowal of America’s most foundational and cherished liberty. 

Christians should stand ready to involve ourselves in the work of preserving and expanding conscience-protections on behalf of all people of faith, ensuring that religious and civil liberties continue to enjoy robust protections.  As always, the ERLC is committed to working on behalf of Southern Baptists, the broader Christian community, and all people of faith to defend these fundamental rights. 

Are there forthcoming legislative remedies?

In terms of expanding conscience-protections, specifically in the field of healthcare, Sen. James Lankford (R-OK), in January 2019, introduced the Conscience Protection Act, an effort “to protect healthcare providers, including health care professionals, entities, and health insurance plans from government discrimination if they decline to participate in abortions,” which he then reintroduced on Feb. 23, 2021.

Whereas, in the event of a situation like that which occurred at UVMMC, where conscience-protections were clearly violated, “the only recourse is to file a complaint with the HHS Office for Civil Rights,” the Conscience Protection Act “provides doctors, nurses, and other health care workers permanent protection from being discriminated against by employers if they choose to follow their conscience and do not wish to perform, participate in, or provide an abortion.” As Lankford says, “Many entered health care to protect life; they should not be forced to take a life to keep their jobs.”

The passage of this bill would be a commendable step toward protecting the rights of conscience for those employed in the healthcare industry, and it’s one that the ERLC wholeheartedly supports. 

It is likely that cases similar to the one at UVMMC will continue to pop up as culture trends in a secular direction, but legislation like the Conscience Protection Act would ensure that robust and necessary protections are guaranteed for conscience-bound healthcare workers who find themselves in morally objectionable situations. 

By / Aug 4

Since Roe v. Wade was decided in 1973, states have enacted 1,313 abortion restrictions — 566 of them since the beginning of 2011. But this year alone, there have been an additional 561 abortion restrictions proposed in state legislatures — including 165 abortion bans, introduced across 47 states (all counts current as of June 7, 2021). As the Guttmacher Institute notes, 83 of those restrictions have already been enacted across 16 states, including 10 bans.

Pro-life advocates claim such are effective in reducing state-level abortion rates, while pro-abortion advocates claim the decline was due to expanded access to effective contraceptives and a drop in unintended pregnancies. Who is right?

Types of restrictions and their influence on abortion rates

In an attempt to answer that question let’s consider the evidence that various types of abortion laws and policies have on the reduction in the rate of abortion.* State-level restrictions and policies that affect abortion rates usually take one of the following seven forms:

  • Gestational limits
  • Partial-birth abortion bans 
  • Public funding restrictions/bans 
  • Parental involvement laws
  • Informed consent laws
  • Increased access to contraceptives
  • Physician, hospital, and abortion provider requirements

For the sake of brevity, this will be a summary of the findings on each type of restriction with links to resources that explain the current evidence. Since there are no authorities or evidence that everyone in the debate can consistently agree on, the use of studies and sources will be those that are generally considered reliable or uncontroversial within the pro-life community. Unfortunately, social science research on the topic is relatively rare and some of the most relevant studies are more than a decade old. 

Here are brief summaries of the effect on abortion rates of various policies: 

Gestational limits and partial-birth abortion bans: While there are numerous reasons to support such restrictions, it is difficult to determine whether these forms prevent abortions or merely lead women to have abortions sooner in their pregnancy. The evidence for their effect on overall declines in abortion rates is therefore inconclusive.

Reductions in public funding: The clearest evidence we have on the effect of restriction in public funding is in the case of Medicaid. In 2009, the pro-abortion Guttmacher Institute reviewed more than a dozen studies that analyzed the impact of state Medicaid funding restrictions on abortion. Approximately one-fourth of women who would have Medicaid-funded abortions instead give birth when this funding is unavailable.

Parental notification and parental consent laws: A study published in 2020 on the impact of parental involvement laws on the abortion rate of minors found that parental involvement laws enacted before the mid-1990s are associated with a 15% to 20% reduction in abortions to minors, but that such laws enacted after this time are not associated with declines in abortions to minors. 

Informed consent laws: Although a analysis in 2014 found solid empirical evidence that Mississippi’s informed consent law — which requires that women seeking abortions make two separate trips to the abortion provider — had reduced abortion rates, the research provides very little information on the impact of other types of informed consent laws in general or in other states.

Increased access to contraceptives: Use of contraception began increasing in the early 1960s — decades before the decline of abortion that began in the early 1990s. From 1994 to 2008, the rate of unintended pregnancies (a key factor in the rate of abortion) increased for all women at the same time that contraceptive use increased. The connection between contraception and abortion is therefore tenuous at best. 

Also, lack of access to contraceptives is a negligible factor in abortion rates. According to a Guttmacher Institute study from 2002, more than half of women who have abortions used a contraceptive method during the month they became pregnant. Only 12% of women who did not use contraception before having an abortion cited having problems, such as an inability to pay for birth-control pills, as the reason for the nonuse. Concerns about contraceptive methods were cited by 32% of nonusers and included mainly problems with methods in the past (20% ) and fear of side effects from methods (13%).

Physician, hospital, and abortion provider requirements: Almost of the states in the U.S. (23) have laws or policies that regulate abortion providers. However, most of these types of requirements are not stringent enough to have an effect on the overall abortion rate within a state. At best they are likely to reduce the number of abortion clinics within a state.

While we have some ideas what policies work and which do not (parental involvement law reduces abortion, increased contraception use mostly does not), for most types of abortion restrictions it remains unclear what influence the laws are having. Part of the problem is a simple lack of comprehensive empirical data and adequate research in this area. As better data becomes available, we should be able to make better determinations of the effect of such laws.

What we do know is that from 2009 to 2018, the rate of reported abortions decreased 24%. State level abortion restrictions are likely correlated with this change, even if their causal link cannot be well attested. 

But is the abortion rate dropping because states are passing new laws, or are the states able to pass the new laws because the public is becoming more pro-life, and thus there is less overall demand for abortion? Unfortunately, there is simply not enough evidence to determine the level of causation with a sufficient degree of certainty. 

The importance of state-level restrictions

Does this mean that we in the pro-life movement are wasting our time in seeking more state-level restrictions? Not at all. Even if it could be demonstrated that such laws are not currently affecting the rate of abortion (the likelihood of which we find highly doubtful), they continue to serve an important moral purpose—both now and in the future.

At present, we do know that these laws and restrictions cause some proportion of women to put more thought and effort into their decision to have an abortion. Even if this leads to only a slight change in the number of abortions, every single life that is spared as a result of these efforts is more than sufficient justification for working to implement them. 

Further, the importance of such laws will also be made clear when Roe v. Wade is overturned. These types of pro-life restrictions lay the essential groundwork for the types of legislation that will be needed when the Supreme Court puts abortion law back in the hand of state governments. States that have developed the processes and alliances necessary to pass abortion restrictions today will likely have more success implementing similar restrictions in the future.

Clearly, we should be cautious in making claims about the current effects of most state-level restrictions (even as we seek more data to demonstrate their efficacy). But we should nevertheless remain bold in advancing such legislation. Even if their precise effect upon abortion rates cannot be known with certainty at this time, pro-life laws are an important way for us to morally and legally push back against the evil of abortion and seek justice for America’s unborn children. 

* Reducing the total number of abortions is obviously more important to the pro-life movement than merely reducing the rate of abortion. But changes in population and demographics, especially at the state level where most abortion laws are implemented, can skew the total numbers of abortions. For this reason, the abortion rate provides a better measure by which to gauge the effectiveness or state-level abortion laws.

By / Jul 16

Texas recently passed a new law that would allow citizens, rather than government officials, to enforce a new law that prohibits abortion as early as the sixth week of pregnancy.

“The Texas Heartbeat Act is novel in approach, allowing for citizens to hold abortionists accountable through private lawsuits,” says Rebecca Parma, a senior legislative associate with Texas Right to Life. “No heartbeat law passed by another state has taken this strategy. Additionally, the bill does not punish women who obtain abortions.” 

Here is what you should know about this new pro-life legislation.

What is the Texas Heartbeat Act?

The Texas Hearbeat Act is the latest in state fetal heartbeat bills, legislation that bans abortion after the point where a heartbeat can be detected. By use of an ultrasound, the heartbeat of a child in the womb can routinely be detected as early as 6-7 weeks after conception.

The Texas law requires physicians to test for a heartbeat and prevents them from knowingly performing or inducing an abortion on a pregnant woman if they detect a fetal heartbeat for the unborn child or if the doctor failed to perform a test to detect a fetal heartbeat. A physician does not violate this law if they performed a test for a fetal heartbeat and did not detect a fetal heartbeat.

What is unique about the Texas law?

The Texas Heartbeat Act prohibits enforcement of the law by government officials. Instead, the law allows any private citizen — even those who do not live in Texas — to bring a civil lawsuit against any person who performs or induces an abortion in violation of this law or who knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this law. 

If the plaintiffs win their case, the court is directed to force the defendant to pay costs and attorney’s fees, pay statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced, and award injunctive relief sufficient to prevent the defendant from violating this law or engaging in acts that aid or abet violations of this law. 

Which states have passed fetal heartbeat legislation?

Fetal heartbeat bills have passed in five states: Arkansas, North Dakota, Iowa, Kentucky, and Texas.

They have failed to pass in 12 states: Alabama, Indiana, Kansas, Michigan, Minnesota, Mississippi, Missouri, New York, Ohio, Oklahoma, South Carolina, and Wyoming.

They have been proposed or re-proposed after failing to pass in 13 states: Florida, Georgia, Illinois, Maryland, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, South Carolina, Tennessee, and West Virginia.

A federal Heartbeat Protection Act was also proposed in 2017.

What is the status of the legislation in the other states that passed fetal heartbeat laws?

Currently, all four fetal heartbeat laws have been blocked by the courts. A lawsuit has also been filed to block the Texas law before it takes effect on Sep. 1, 2021.

However, the the Supreme Court recently agreed to hear a case involving a Mississippi law that bans abortion after 15 weeks of pregnancy. Pro-life activists are hopeful the ruling in that case could limit or oveturn Roe v. Wade

By / May 29

On Friday, President Biden released his FY 2022 budget proposal. His budget notably removes the Hyde Amendment.

Every year, a president submits their budget proposal, and it serves as a blueprint for the administration’s priorities. A president’s budget proposal has no binding authority over Congress — the budget proposal is a request and a statement of priorities. The budget proposal serves as a starting point for a long negotiation in Congress as their work on the 12 spending bills that fund the government.

This is the first time since 1976 that the Hyde Amendment has not been included in a president’s budget proposal.

What is the Hyde Amendment?

Following the Supreme Court’s decision in Roe v. Wade, abortion clinics were able to charge Medicaid for abortions. Three years later in 1976, Congressman Henry Hyde, a Republican from Illinois, responded by introducing a budget rider on the Department of Health and Human Services (HHS) appropriations bill to prevent Medicaid from covering the cost of abortion. This rider alleviated taxpayers from being financially responsible for something millions found to be a grave moral wrong. The congressman’s rider was added as an amendment then and later expanded to the Indian Health Service, Medicare, and the Children’s Health Insurance Program (CHIP). 

This annual appropriations policy became known as the “Hyde Amendment.” An appropriations rider is not a permanent federal statute. Because Rep. Hyde attached the policy as a “rider” to the appropriations bill, it was only applicable for the money appropriated that year. The Hyde Amendment must therefore be attached to appropriations bills each year to be effective.

Why is the Hyde Amendment Important?

Before the Hyde Amendment was introduced, approximately 300,000 abortions a year were performed using federal Medicaid dollars. It is estimated that the Hyde Amendment has saved over two million lives since it was enacted. Since 1976, the Hyde Amendment has been passed by every Congress. Its success across the generations is not due to a shared belief about abortion but precisely because those representatives and senators believed the disagreement deserved respect. According to a recent Knights of Columbus/Marist Poll, 58% of Americans oppose taxpayer funding for abortion domestically. In addition, since Medicaid is funded both by federal and state dollars, states can decide to use their own funding to cover abortions. Currently, 17 states have decided to use state funding to provide abortions for Medicaid recipients

Other pro-life riders that should be included in the appropriations process

The Hyde Amendment is just one of many pro-life riders that deserve to be included in all appropriations bills. Congress should also protect the Weldon (discrimination protections for those with objections to abortion), Dornan (Hyde protections in the District of Columbia), Helms (protection against funds being used for abortion in international aid), Siljander (protection against funds being used to lobby for abortion internationally), and Kamp-Kasten (protection against funds to organizations that support coercive abortion or sterilization) Amendments. 

What’s next?

The House and Senate Appropriations Committees will begin the appropriations process which includes a hearing to discuss budget requests and writing and marking up the 12 appropriations bills that fund the federal government. Congress will therefore have the opportunity to include the Hyde Amendment and other important pro-life riders. Sen. Steve Daines (R-MT), founder and chair of the Senate Pro-Life Caucus, led a letter to Leader Schumer pledging to vote to block any bill that would undermine the Hyde Amendment or any other pro-life protections. The letter included 47 senators.

Earlier this year, the ERLC sent congressional leadership a letter urging them to adhere to critical pro-life policy riders, including the Hyde Amendment. This week, we joined dozens of pro-life coalition partners in sending congressional leadership a similar letter. Each year, the ERLC is actively engaged in the appropriations process, working alongside committee and leadership offices to ensure that important pro-life, religious liberty, and conscience protections are included. The ERLC will continue to advocate for these pro-life provisions and other legislative measures that reflect God’s gracious love for every human life. 

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By / Apr 2

On Tuesday, the Kentucky state legislature passed House Bill 91, a measure that will allow voters to decide the No Right to Abortion in Constitution Amendment in November 2022. Kentucky’s Democratic governor, Andy Beshear, has vetoed anti-abortion legislation in the past, but he does not have the authority to veto proposed constitutional amendments.

The question that will be put on the ballot in November 2022 asks: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: ‘To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?’”

If Kentucky voters approve the amendment, the state’s constitution would then pre-empt any court ruling that could legalize abortion in the state if Roe v. Wade is overturned. “HB 91 simply assures that no Kentucky court will ever be able to fashion an implicit right to abortion from the language of our state Constitution,” said Rep. Joseph Fischer. “There will be no Roe vs. Wade decision in Kentucky.”

Pro-life groups in the state praised the measure for allowing citizens to have a say on the issue of abortion. 

“Kentucky Baptists are grateful for the leadership of Senate President Robert Stivers, House Speaker David Osborne, Rep. Joe Fischer and their colleagues who allowed this constitutional amendment to move forward so the citizens of the commonwealth can let their views be known,” said Todd Gray, executive director-treasurer of the Kentucky Baptist Convention. “We continue to pray for the day when legalized abortion, the greatest human rights atrocity of our day, will be abolished in Kentucky.” Fischer clarified, though, that the law would not block the legislature from passing laws making abortion legal in the state

Lawmakers in Kansas passed a similar measure in January. The Kansas amendment would reverse a 2019 decision by the Kansas Supreme Court that ruled there was a right to abortion in the Kansas Bill of Rights. According to Ballotpedia, the amendment would add a section to the Kansas Bill of Rights to state that there is not a right to abortions, and the government is not required to provide funding for abortions. The new section would also add that the state legislature has the authority to pass laws to regulate abortion. 

Currently, four states have constitutional amendments declaring that their state’s constitution does not protect any right to abortion or require the funding of abortion. Tennessee was the first state to pass such a constitutional amendment in 2014, followed by Alabama and West Virginia in 2018 and Louisiana in 2020. Arkansas has a similar constitutional amendment, passed in 1988, that says, “The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.”
Ten states—including Kansas—have court rulings that declare the state constitution provides a right to abortion. The list of states where courts have made such rulings are Alaska, California, Florida, Iowa, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico.

By / Mar 26

On Tuesday, Utah Gov. Spencer Cox signed House Bill 72, which calls for all smartphones and tablets sold in the state after 2022 to have active adult content filters. 

The legislation was broadly panned by civil libertarian groups and lauded by anti-pornography organizations. The National Center on Sexual Exploitation (NCOSE) commended the Utah legislature for passing this bill which they say will aid parents in protecting their children from unwanted exposure to pornography. 

“There are countless heartbreaking stories of the harm caused by children’s unhindered access to Internet devices—including the individual and familial trauma of pornography exposure and addiction and adult predators targeting and grooming kids online,” said Dawn Hawkins, senior vice president and executive director of the NCOSE.

What does the new law do?

The new law requires a tablet or a smartphone sold in the state and manufactured on or after Jan. 1, 2022, to, when activated in the state, automatically enable a filter capable of blocking material that is “harmful to minors.” Under the Utah State Code, harmful to minors means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it: taken as a whole, appeals to the prurient interest in sex of minors; is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and taken as a whole, does not have serious literary, artistic, political, or scientific value for minors. 

The device must also notify the user when content is filtered and enable adults to deactivate the filter for the device or for specific content. 

Additionally, the legislation provides a process for the attorney general or a member of the public to bring a civil action against a manufacturer that manufactures a device on or after Jan. 1, 2022, if the device does not contain an enabled filter or if a minor accessed material that is harmful to minors on the device. The penalty allows for a civil penalty of up to $10 for each violation, and that a portion of any civil penalty recovered be provided to the Crime Victims Reparations Fund. 

The rule doesn’t take effect until five other states pass equivalent laws. If that requirement is not met before 2031, the law will not take effect.

Which states might follow Utah’s lead in passing similar laws?

In 2016, Utah became the first state to officially declare pornography a “public health crisis.” Since then, 15 other states have followed Utah’s lead in making a similar declaration in at least one legislative chamber. Those states are Alabama, Arkansas, Arizona, Florida, Idaho, Kansas, Kentucky, Louisiana, Missouri, Montana, Oklahoma, Pennsylvania, South Dakota, Tennessee, and Virginia. If only one of three of those states pass similar legislation in the next decade, Utah’s law will go into effect. 

Isn’t the law too burdensome on tech manufacturers?

As the NCOSE points out, virtually all devices already have such filters, but they are turned to OFF when sold. “This bill simply requires the filters to be turned ON when activated in Utah,” says NCOSE. “Adults are not prohibited from accessing such material and are given a PIN to remove the filter for their own use if they choose to do so. Children will not receive PINs to deactivate the filters.”

“This ensures that the devices are effective for protecting minors while being unrestrictive on adults,” says Hawkins. “While these filters are already available on most devices now, on an Apple device, for example, it takes 20+ complicated steps to turn them on, leaving most parents helpless to protect their kids online.” 

The law also makes it clear that it would not apply to smartphone and tablet manufacturers that make a “good faith effort” to provide a “generally accepted and commercially reasonable method of filtration in accordance with this part and industry standards.”

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