Winning a war by attacking the edges is an ancient idea.
As early as 5th century B.C., in his military treatise The Art of War, Sun Tzu wrote, “In all fighting, the direct method may be used for joining battle, but indirect methods will be needed in order to secure victory.”
Anti-choice activists have read the playbook, and they’re deploying indirect methods in their fight against abortion.
In early 2016, Bloomberg Business reported a quarter of the United States’ abortion clinics had shut down since 2011, the fastest annual pace on record. Anti-choice crusaders are finding success not by directly taking on Roe v. Wade, but by attacking the edges, pushing through legislation that requires unnecessary waiting periods, restrictive building codes, hospital admitting requirements and other superfluous regulations that make it too expensive or logistically burdensome to remain open.
Anna Vishkaee Eskamani, Senior Director of Public Affairs and Communications for Planned Parenthood of Southwest and Central Florida, says they’re called Targeted Restriction of Abortion Providers (TRAP) laws.
“These are laws that are not designed to ban abortion, because they can’t with Roe v. Wade standing, but they try to find roundabout ways to make it more difficult to provide abortion access, or to access it yourself, as individuals,” Eskamani says.
Bloomberg estimates 30.5 million women are affected by clinic closures, and while the fight for reproductive justice is far from over, one thing about the anti-choice, indirect strategy is clear: It works.
It is vital that LGBTQs pay attention to these anti-choice wins, as anti-gay activists are already attacking LGBTQ equality using similar, sneaky tactics. If the indirect strategies have made it harder for women to exercise their reproductive freedoms, it’s not a stretch to say similar tactics could remove hard-won rights from the LGBTQ community.
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What’s the LGBTQ version of a TRAP law?
There’s no telling what fresh strategies are standing by in the anti-LGBTQ playbook, waiting to be deployed, but so far, indirect attacks primarily have fallen under three categories: religious freedom, dismantling local protections and transgender rights.
Aubrey Jewett, associate political science professor at University of Central Florida, says there are “definite similarities” to attacks on reproductive and LGBTQ rights.
“In both cases, instead of the conservative lawmakers going directly after the policy that they want – in the case of abortion, to make abortion illegal, in the case of gay rights to repeal gay rights across the board – they pursue a strategy to go after what they can get in a more limited basis and to do it in a way that to some degree masks their actual intent,” Jewett says.
For example, Jewett cites the transgender bathroom bills, which have popped up in several states and attempt to police who uses restroom facilities, by gender.
“Almost all research and data suggests that there have been no incidents of transgender people going into the restroom of their choice for any other reason than the use of the facilities,” he says, so lawmakers attempting to pass bathroom bills claim they’re really about protecting women and girls from pedophiles who might take advantage to access women’s restrooms.
“The opponents of LGBTQ rights go at the edges and look for types of legislation that they can pass, that they feel will at least to some degree make them feel a little more comfortable about [progress] in American society,” Jewett says.
He adds that religious freedom bills, which state businesses shouldn’t have to serve LGBTQs if it’s against their religious beliefs, are rarely about a legitimate religious issue and usually a way to try to get around current law.
“A lot of the legislation is trying to accommodate people who don’t believe in gay marriage and don’t believe in gay rights and protect them and their religious freedom,” Jewett says. “It’s just a way that they can justify trying to chip away at civil rights protections for gays.”
Anti-choice activists have been attacking the edges of abortion rights for around 60 years, and Jewett says it’s too early to tell whether anti-gay activists’ drive and dedication will be equally intense.
“[Anti-choice activists] just do not agree with Roe v. Wade, they do not agree with abortion under any circumstances and they are not going to stop trying to fight it,” he says. “I think with gay rights, it’s hard to know for sure if there will be that level of commitment and depth of passion… I know from the pro-life crowd, they look at it as these are innocent lives that are being taken, and this is something they have to morally fight against. Not that they agree with gay rights, but I’m not sure there’s the level of passion in the long run.”
Regardless of the level of commitment, Hannah Willard, Equality Florida’s public policy director, says the similarities between the two battlegrounds are undeniable.
“The more I learn about the fight for progressive causes and the fight for full lived equality for all people, the more I realize that our opponents are all overlapping and they all have very similar strategies to undermine our ability to live our lives the way we see fit, to live our lives free from government intrusion, to be able to do with our bodies what we want, to have control over who we marry, who we love,” Willard says. “I think there are a lot of similarities in what our opponents are doing to try to undermine those rights.”
Eskamani adds that anti-gay and anti-choice lawmakers may simply be politically motivated.
“It is less about the needs of the constituents and more about the politician’s next election,” she says.
Willard points out that legal same-sex marriage doesn’t necessarily mean those rights are bullet proof, citing evidence not found just in abortion battles but in civil rights battles, as well.
“Abortion is a perfect example of the fact that [LGBTQs] don’t necessarily have full protection just because there’s a law in place,” Willard says. “Roe v. Wade is constantly chipped away at. We have marriage equality but we’ve got to remain vigilant. The Black Lives Matter movement is all about defending the legal rights that people of color have fought for and won and are still under threat for every single day.”
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The Trump Effect
Of course, things may change now that Donald Trump is president. Trump’s America creates two snags in the usual political assumptions: a climate where anti-gay and anti-choice activists feel emboldened to launch direct attacks, and the possibility of Trump nominating one or more justices to the U.S. Supreme Court.
Jewett says it’s not clear how Trump feels about LGBTQ rights, “but if a lot of his supporters feel that this is their best chance… then we absolutely will see more legislation pass at the state and local levels that tries to chip away at gay rights.”
Willard adds that extremists, especially, are “encouraged and emboldened” by Trump’s election victory.
“I think that Donald Trump tapped into a very angry segment of the society that is seeing the world change in front of them and is, quite frankly, afraid of what that will mean for them, their families and their livelihood,” she says.
And of course, there is trepidation that the ever-unpredictable Trump may have the opportunity to appoint Supreme Court justices who want to dismantle both LGBTQ and reproductive rights.
“It’s almost certain the justice that will replace [Antonin] Scalia [who died in February of 2016] will be equally conservative,” Jewett says. “We have several other justices who are pretty old; they could pass away or retire.”
He says it depends on state challenges to existing laws, and how lower courts rule on those cases.
“It could take years, but if these cases get up to the Supreme Court, then there’s the potential for the Supreme Court to reverse themselves, as they have done on occasion throughout history, and do away with Roe v. Wade or do away with the decision to legalize gay marriage.”
Although it’s possible, Jewett says a new majority on the Supreme Court is “almost impossible,” and even if a new majority was in place, they’d be reluctant to overturn previous decisions. But almost impossible isn’t the same thing as impossible.
“The Cubs did win the World Series; Donald Trump won the presidency. It’s certainly more probable with a more conservative set of justices,” he says. “If you’re on the front lines of the battles for women’s right to choose or for LGBTQ rights, you best be on your toes, because the opposition is not going away. The stakes are high.”
Eskamani cites a “huge victory” for reproductive rights this past summer as reassurance that the Supreme Court is not in a place to roll back progress. The justices ruled 5-3 to overturn HB2 [in 2013], a major TRAP law in Texas that would have shuttered all but ten of the Lone Star state’s abortion clinics.
“So even if Scalia was still sitting, that would have been a win for reproductive rights,” Eskamani says. “People should take some solace in that, at this moment in time, the Supreme Court of the U.S. is in a strong place to continue to protect access to reproductive care, but we have to be vigilant. We have to hold our elected officials accountable to stop these bills from even being sponsored, let alone passing and getting to the Governor’s desk.”
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LGBTQ counter-attack playbook
Of course, LGBTQ activists have some strategies up their sleeves, too.
Vigilance is a persistent theme. Eskamani recommends people who want to protect LGBTQ equality follow the legislature closely and start discussions with their state house representatives and state senators.
“These are the folks who work for us and we really have to do our best to build a relationship with them, so that when they do file legislation we don’t like, or legislation that we do like, we can then contact them and let that be known and really exercise our power as stewards of the community,” she says.
Offensive maneuvers bring to mind aggressive, head-on strategies but Willard’s top recommendation in countering attacks on LGBTQ rights is so gentle it’s an artform: storytelling.
“What we saw with the marriage equality victory was the power of individual people’s stories,” she says. “We’ve actually got to start talking to each other about how we feel about reproductive justice. We have to start talking to each other about our perspective on LGBTQ equality. I think there’s a whole lot more of us who are able to find common ground than we would think.”
And of course, pro-choice and pro-equality camps facing similar, indirect attacks could find strength in banding together.
“A lot of those sponsors of these bills are also ones that sponsor and or support restrictions that are politically motivated toward abortion and reproductive rights,” Eskamani says. “Our movements really are intrinsically tied.”
Eskamani says LGBTQs have had a lot of success breaking stigma by telling stories and being visible, but pro-choice activists “have not seen that type of movement with reproductive health yet. We’re on the cusp of that becoming a reality.”
Willard says it’s important to remember that anti-gay and anti-choice strategies aren’t new, and these battles have been going on for decades.
“I think we have to look beyond just legal rights and think about how we create a culture of lived equality and create a culture that affirms the basic human dignity of all people,” she says, adding that while LGBTQs celebrate recent, monumental victories, it’s important to realize that working with the pro-choice movement is key to continued progress.
“I would argue that it’s up to LGBTQ people, too, to speak up for reproductive justice, to know upon whose shoulders we stand and remember that the HIV/AIDS epidemic was absolutely linked to reproductive justice and access to contraception,” she says. “We’ve got to speak up and remember that there are LGBTQ people who need to have access to reproductive healthcare, who are bisexual or transgender, and need their right to access a safe and legal abortion affirmed and protected.”
