A guest opinion from Everett Wohlers of Boise.
In the late 1970’s, the Republican party turned to the abortion issue to bring into the party the anti-abortion segment of the population, comprised mainly of fundamentalist Christians and other social conservatives. The effort to overturn the Supreme Court’s 1973 decision in Roe v. Wade, which established a right to abortion within prescribed bounds, has been the Republicans’ North Star. That effort has been a central motivating and unifying theme of the party for the past 40+ years.
Now that the machinations of Mitch McConnell and Donald Trump have managed to fill the Supreme Court with a super-majority of far-right Federalist Society justices, the Court has finally delivered on the Republican fever dream of overturning Roe in the recently issued Dobbs v. Jackson Women’s Health Organization decision. The question is, “Is it enough for the Republicans?”
In the days since the Dobbs decision, there has been much discussion of what the Republicans would do next. Some Pollyannas believe they will be satisfied to let the decision take effect, allowing Republican states to re-impose the 17th Century in the Republican-controlled states by adopting laws that criminalize abortion, while leaving Democratic states as pro-choice havens. The more common view is that Republicans will try to keep the party’s right-wing base motivated by moving on to (a) preclude access to pharmaceutical abortifacients in Republican-controlled states that have made abortion criminal, (b) limit access to abortion in Democratically controlled states, and (c) limit or overturn other rights that the Supreme Court has found in prior decades and which the Republican base finds offensive, e.g. contraception, LGBTQ relationships and same-sex marriage.
To those ends, there have been suggestions by Republicans that they (a) pass laws in Republican-controlled states to criminalize the shipment by mail or courier of abortifacient drugs to women in those states from other states, notwithstanding the Commerce Clause of the Constitution, (b) criminalize the travel by women seeking abortions to states that permit abortion, as well as facilitation by third parties of such travel, and (c) bring legal actions to end rights that have been declared by the Supreme Court with the same rationale used by the Court in Roe, thereby giving the Court the opportunity to overturn those earlier decisions, and ending those rights. Others, including former Vice President Pence, have suggested making abortion unlawful under federal law, once the Republicans control the federal government.
While some or all of these approaches may come to pass, or at least be attempted, they are at this point just speculation. However, there are two things that the Republicans have made clear that they will do if/when they control both houses of Congress and the White House. Those are what make the 2022 and 2024 elections critical to the continued existence of the right of women to their bodily autonomy. Those two things planned by the Republicans for when they assume power are addressed in the following paragraphs.
I. Adopt a federal law prohibiting abortion absolutely
Republicans in both houses of Congress have made it quite clear that if they gain control of Congress and the White House, they would at the first opportunity pass a draconian federal law, making abortion a crime from the moment of conception, i.e. penetration of an egg cell by a sperm cell. That is, the law would make use of the morning after pill and, in some cases, the IUD a crime, in that the penetrated egg cell would immediately have full personhood with all rights under the 14th Amendment. Republican intent is clear because last year 164 Republican Representatives co-sponsored H.R. 1011, and 19 Republican Senators co-sponsored S. 99, both of which do exactly that.
Notably, Representatives Fulcher and Simpson of Idaho are among the co-sponsors of H.R. 1011, and Senators Crapo and Risch are among those for S. 99. While those bills had no chance of adoption in the current House and Senate, it is the roadmap for if/when Republicans gain control of both houses of Congress and the Presidency. Because the bills are written so broadly, i.e. they provide that “the right to life guaranteed by the Constitution is vested in each human being. . . ,” with “human being” defined as existing from “the moment of fertilization” of the egg cell by a sperm cell. That is, they enshrine a fertilized egg with full Fourteenth Amendment rights, thereby precluding exceptions to permit abortion in the cases of rape, incest or endangerment of the mother.
The effect of these bills would be to make use of the “morning after” pill impermissible because it prevents implantation of the blastocyst (which results from early division of the fertilized egg) in the uterus. It may also make use of the intra-uterine device (IUD) difficult, if not impossible, because in some cases, it does not prevent fertilization as it is intended to do, but it does prevent implantation of the blastocyst in the uterus. One other, probably unintended, effect of the bills would be to make the use of in vitro fertilization impossible because it necessarily entails fertilization of many more egg cells than are implanted. That is, the bills would not permit the excess fertilized eggs or blastocysts to be disposed of, and there is often no alternative to disposal.
II. Adopt a federal law creating a national registry of pregnancies
It is clear on the record that a significant number of Republicans in Congress seek to create a federal registry for all abortions. H.R. 581 was introduced in the House early last year with 64 Republican co-sponsors. Its Senate counterpart, S. 3500, was introduced early this year with 18 Republican co-sponsors. Representative Fulcher was the only member of the Idaho delegation among the co-sponsors of these bills. The bills require each state to “submit to the abortion surveillance system of the Centers for Disease Control and Prevention” (CDC) data on every abortion performed in the state in the reporting year. Failure of a state to comply would result in all Medicaid payments to the state for family planning services to be cut off. While the required data do not include the names of the women who receive abortions, the data are so detailed that it would take a minimal amount of sleuthing for anyone to identify any such woman. That is, the data include the woman’s age, race, ethnicity, marital status, county of residence, and number of prior pregnancies and whether each resulted in a live birth, abortion or miscarriage. The data further include the gestational age of the fetus at the time of abortion, the abortion method and whether the fetus survived the abortion.
While the creation of such an abortion database is intrusive and intimidating on its own, there is good reason to believe that the Republicans who sponsor these bills have more on their minds. To examine that prospect, it is necessary to look at some relationships of the Trump-era Republican party. First, the connection of the party to the American Conservative Union (ACU) and its Conservative Political Action Conferences (CPAC) is quite clear from the level of participation of core party members in CPAC meetings, and from the close links between the ACU’s chairman, Matt Schlapp, and the Trump administration. Schlapp is a well-known close insider in the Trump White House, while his wife was its Director of Strategic Communications.
Second, there is a very clear affinity of the ACU and the Republicans who participate in CPAC meetings for the increasingly authoritarian regimes in Hungary and Poland, both of which have dramatically tightened restrictions on abortion in the years since they were taken over by authoritarian-leaning presidents. Hungary’s new 2012 constitution outlaws abortion from the moment of conception. In 2020, Poland outlawed abortion with exceptions only when necessary to save the life of the mother or in the case of pregnancy caused by rape. But more importantly, the ACU and other highly visible voices for the Trump Republican party, e.g. Tucker Carlson, have openly embraced the authoritarian model of Hungary and Poland as one that should be followed by the United States.
That is apparent from the rhetoric of people such as Carlson and Schlapp, as well as from the location of the recent May CPAC meeting in Budapest, where President Viktor Orban was the keynote speaker. That relationship was just further affirmed by the announcement that Orban will be the opening speaker at the annual CPAC meeting in Dallas in early August. While the Hungarian relationship is the more visible, the relationship with Poland is also apparent. For example, Jerzy Kwaśniewski, the head of the Ordo Iuris Institute for Legal Culture, Poland’s most powerful conservative NGO, participated in and spoke to the May CPAC meeting in Budapest. Further, American Andy Ngo and Canadian Stephan Molyneaux, both of whom have close links to the American alt right and the Trump inner circle, participated in a major event in Warsaw sponsored by the Polish government in the fall of 2021.
So why is the attraction of the Republican party to the authoritarian regimes in Hungary and Poland relevant to the Republicans’ desire to create an abortion registry in the CDC? It is because Poland’s Ministry of Health just adopted an ordinance that creates a registry in the Medical Information System that tracks all pregnancies in the country from the moment they are first identified through their end in birth, abortion or miscarriage. The information collected is comprehensive, including the identity of each subject and the expected delivery date. The Ministry is quick to note that the purpose of the registry is to enhance availability of health services to women, and that the information is kept totally within the medical system, i.e. not available to law enforcement or any other entity. However, there is currently a bill in the Polish parliament that would make all data in the registry available to a new Institute of Family and Demographics, the State Prosecutor and parties to family litigation. The bill has passed first reading and is awaiting further action. In sum, the database with all of the personal information on every woman who becomes pregnant is being created. If the bill currently in the parliament is passed, that information can be used to determine if an abortion or miscarriage has occurred, and it can be made available to the Prosecutor or a party to a civil suit against the woman.
For over two decades, my employment entailed development of the legal frameworks for government registries, the business design of such registries and the technical specifications for the application software for the registries. Therefore, I can say with confidence that it would be very easy to modify the abortion registry that is proposed by Congressional Republicans to make it into exactly the kind of registry of pregnancies that is being developed by the Polish government. It would be a simple matter to use job scheduling software to generate a notice to the US Attorney in the appropriate jurisdiction in each instance of a reported miscarriage or when a live birth has not occurred by or shortly after the projected delivery date. That is, every woman who becomes pregnant and does not deliver a living baby could be automatically referred to law enforcement for investigation and, if the US Attorney’s office suspects an abortion, charged with a crime. The same would be true of anyone suspected of assisting the woman with an abortion or a miscarriage characterized by the US Attorney as an abortion.
Given the admiration of the Republican party for the models they see in Hungary and Poland, and given their desire to make abortion impossible to obtain in the United States, Republicans would almost certainly seek to enact a law to track the pregnancies of all American women in a national registry such as Poland’s. If Republicans take control of the legislative and executive branches of government in the 2024 election or later, that can be expected to happen. American women would no longer have any sovereignty over their own bodies – the government would control them absolutely.
The Handmaid’s Tale was fiction. If the Republicans take control of Congress and the Presidency in 2025, this won’t be fiction.