Nearly identical abortion laws are being considered or contested in state legislatures all over the country, and that is entirely by design.
It is one of the central strategies used by anti-abortion lobbying organizations who draft model laws and then distribute them to anti-abortion state lawmakers across the country, and even federally. Aside from being a fast and reliable way of putting new limits on abortion rights and familiarizing the public with their ideas, the repetitiveness and volume of these laws serves another purpose — exhausting their opposition.
For example, a law requiring doctors to offer women ultrasounds before they get abortions will be introduced in Arizona, then laws nearly identical in both in language and intent will start popping up in Iowa, Kansas, Texas, and 22 other states. Brand-new phrases like “dismemberment abortion” will appear in quotes from state legislators about a new law in Alabama, then all of a sudden will start to appear in bills and floor speeches across the country.
When Indiana passed legislation requiring the burial of aborted and miscarried fetal remains in March, 2016, abortion rights activists sounded the alarm, earning headlines and igniting liberal outrage across the country. A group called “Periods for Pence” flooded the office of then–Indiana governor Mike Pence with thousands of phone calls, emails, and tweets from women telling him when they had their periods and asking if they should record it with the government and bury it in case it included fertilized eggs. The law essentially prevents at-home, medication abortions (which are very common in states with few abortion clinics), as women do not have the ability to bury or incinerate those remains in an official fashion. The movement gained nationwide attention, but when similar legislation passed in Texas and Louisiana the reaction was significantly muted.
“Every activist I know is exhausted right now,” Laura Shanley, founder of Periods for Pence (now called “Periods for Politicians”), told BuzzFeed News.
Shanley said that introducing the same legislation in state after state “absolutely works” to tamper down negative reactions from activists. While the “call to action” posts online would get thousands of shares and clicks when the Indiana bill was first introduced, Shanley said they now only get hundreds.
“There are [laws] to fight at the federal level, state level, local level. How do you keep up with that?” Shanley asked. “You just have to figure out what you think is most worth fighting for in that moment … and a lot of times that’s the newest" legislation, not the same battles already fought elsewhere, she said.
Many of these bills can be traced back to national anti-abortion groups, who specifically push the same legislation and language in different state legislatures, knowing that once they get a policy passed into law in one state, pushing it through the others will get easier.
Anti-abortion groups such as Americans United for Life (AUL), the National Right to Life Commission (NRLC), and, at the federal level, March for Life write up annual “playbooks” of model legislation drafted by anti-abortion advocates. The laws cover anything from requiring hospital admission privileges for abortion clinics (which are often hard to attain and can lead to clinic closures), to requiring parental consent for minors to get an abortion, to limiting abortion access to 20 weeks of pregnancy. While state lawmakers often tweak and adjust the language or alter exceptions (often cases of rape, incest, or jeopardy of the mother’s life), much of the juiced-up language in the bills — “partial-birth abortion” for example — remains the same.
Some of the groups are more straightforward about this strategy than others. NRLC has fact sheets and memorandums about their legislation on its website, while AUL annually publishes an actual physical book (also available in PDF form) called Defending Life: A State-by-State Legal Guide to Abortion, Bioethics, and the End of Life that it sends to lawmakers. This year’s book has a laudatory blurb from now-Vice President Pence on its website, praising AUL’s “long and successful history of fighting to protect our most vulnerable — the unborn.”
No matter the method, anti-abortion organizations and lobbyists traffic in legislative repetition. Multiple anti-abortion advocates told BuzzFeed News that often they will encourage lawmakers to introduce bills that may not have a single hope of passing their state’s legislature that session, merely to start increasing public familiarity and tamper down the opposition’s shock.
“There is definitely understanding that sometimes laws are going to be educational and influence and impact public opinion but won’t necessarily move forward,” President of the March for Life Jeanne Mancini told BuzzFeed News during an interview at the National Catholic Prayer Breakfast with Pence in June.
“The public becomes more educated hearing the discussions about these bills year after year,” Denise Burke, AUL vice president of legal affairs, said. “It helps to educate and familiarize the public, and to garner support for the legislation.”
Ingrid Duran, NRLC director of state legislation, told BuzzFeed News that “the repetitiveness helps for sure.”
“We know that we’re not going to be able to change your mind just by telling you something once,” Duran said. “It takes time to change minds in the internet age.”
Duran pointed specifically to the success of “pain-capable” legislation — bills that allege a fetus is able to feel pain at 18 to 20 weeks of pregnancy, and therefore that the procedure should be banned after that period — for which NRLC drafted the model bill. The science behind this bill has been heavily contested by the medical community, but it continues to gain traction in states and the US House has repeatedly introduced the bill, passing it as recently as 2015, though it has not made any headway in the Senate. President Donald Trump himself promised to sign the bill into law during his campaign.
“Seven years [after drafting it], there are 16 states with those bills enacted with very similar language and more to come,” Duran said.
Those legislative playbooks can work both ways, however. Abortion rights advocates like NARAL Pro-Choice America and the Center for Reproductive Rights use them in opposition research, to try to preempt the anti-abortion laws across the country, and to point out legal trends to the media. Knowing what’s coming can also help abortion rights activists keep their supporters from suffering what Emily Winderman, an expert on the rhetoric of reproductive issues and medicine at the North Carolina State University, calls “anger fatigue.”
Winderman told BuzzFeed News that generating public anger is often the key to motivating activists and drawing attention to legislation and causes. In order to launch a successful activist campaign, no matter the topic, “you have to feed and sustain collective anger, you have to make it resonate through people’s bodies” Winderman said.
“But It takes a lot of energy to be angry, so keeping people angry is really hard,” Winderman said, especially considering the “long history of repetition in abortion legislation.”
“Headlines can kind of start to read the same if you follow the issue closely,” Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, told BuzzFeed News. “There [are] definitely people who feel like they can’t keep up with all of it and suffer from some abortion legislation exhaustion.”
Deputy Legal Director of the American Civil Liberties Union Louise Melling, who has been working in abortion rights advocacy for 25 years, said that getting activists to stay motivated about a fight that has been going on in a similar fashion for more than 40 years can be hard.
“It’s about how much can you absorb how much can you get angry about,” she said. “It can be hard to get attention because [the fight over abortion] keeps happening. What you always want is people’s attention and having them engage, you want them to know what [they] did mattered in some way, and sometimes that’s a challenge.”
Duran, of the NRLC, said that public response depends on the type of law. A newer type of law with a dramatic name, like “pain-capable” or “dismemberment abortion” (which bans the most common method of second trimester abortions) bills, might receive outraged reaction online and in-person protests at the court houses as well as added support from anti-abortion supporters horrified by what the bill alleges about abortion.
But other laws may skate by nearly unattended to, Duran said, using the example of laws requiring the consent of parents for minors seeking abortions.
As pushback against abortion-restricting legislation continues to rage, the abortion rights research organization Guttmacher Institute reported that 1,257 state-level provisions concerning “sexual and reproductive health” were introduced just this year, as of June 1.
“From a strategy standpoint, the goal can be to burn people’s outrage out,” Winderman said. “But anger fatigue is trans-ideological — it’s something they have to face on both sides of the debate.”
The explosive language used in the bills helps rally that anger on the anti-abortion side and garner support for the bill. The battle against abortion has had the same ultimate goal since Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide, so keeping their own supporters angry and motivated is something anti-abortion advocates have worked tirelessly at for years too. Popularizing language that personifies the fetus and paints it as “a member of the community suffering harm,” as Winderman put it, keeps the anti-abortion fire alive.
But using language to sustain the attention and furor of supporters while trying to ensure that legislation will hold up under the scrutiny of courts enforcing Roe v. Wade can sometimes be a challenge, Burke of AUL said. Most abortion-restricting legislation that is passed is quickly challenged as unconstitutional by abortion rights advocates like Planned Parenthood or the ACLU, as most of these laws are.
“We have to follow the court’s abortion jurisprudence when you’re talking about the legal fallout of the language,” Burke said. “There’s not as much wiggle room — you have to enact it as its been drafted without it being struck down.”
Both sides maintain that 2017 has been a game changer for them. Anti-abortion advocates say the state legislators on their side have “gained a new confidence,” as Mancini from the March for Life put it, and abortion rights advocates from NARAL, the Center for Reproductive Rights, and the ACLU told BuzzFeed News that their cause has “gained a new fire.”
Both Allen and Melling said that Trump’s election helped to sustain activists’ anger, and has so far triggered “new levels of engagement and activism across the board,” Allen said.
“People keep turning out right now, we’re five months in and people keep turning out,” Melling said, “but you never know. Do people keep coming out for six months, 12 months, then that’s it?”
Ema O'Connor is a politics reporter for BuzzFeed News and is based in Washington, DC.
Contact Ema O'Connor at firstname.lastname@example.org.
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