Anti-Choice Ethics Director Strategizes Sting Operations Against Abortion Providers

The National Right to Life Committee plans to borrow from the playbook of the Civil Rights movement by urging activists to perform so-called stings of abortion clinics, while also pushing for an expansion of the laws that govern abortion to allow third parties to sue the clinics in civil court for alleged violations, according to statements made at a recent conference attended by RH Reality Check.

“This is an approach that was pioneered by the Civil Rights movement, when for many, many years you couldn’t get a white jury in the South, for example, to convict people accused of lynching,” said Burke Balch, director of the National Right to Life Committee’s Robert Powell Center for Medical Ethics, who laid out his ideas at the National Right to Life Committee’s annual conference in Louisville, Kentucky, late last month.

However, while Civil Rights pioneers applied these techniques in the cause of seeking justice and expanding the rights of citizens, the National Right to Life Committee and other anti-choice groups are attempting to use this technique in the name of drastically reducing the rights of citizens—namely, women who seek to exercise their constitutional rights to choose whether to carry a pregnancy to term.

In part modeled after the Fair Housing Testing Program, Balch’s strategy involves passing laws that create standing for private citizens who might not otherwise be able to bring the lawsuit on their own. “Standing” is a legal concept that refers to who has the right to bring a particular lawsuit. In most cases, to show standing, plaintiffs have to prove they are directly affected by whatever it is they are suing.

At one point, Balch compared the type of stings he was advocating to the type of tests the U.S. Department of Justice—as well as fair-housing advocacy groups—uses to test whether building owners are violating the federal Fair Housing Act by discriminating against certain groups protected under the law, such as racial minorities and people with disabilities. In these tests, citizens will pose as hopeful renters; documented cases of discrimination can later be used to bring lawsuits against the violating property owners.

“Frankly, you can set up a sting operation,” Balch explained. “You can create a situation in which a pregnant woman goes in—obviously doesn’t go through with the abortion—but makes the appointment, meets with the abortionist who then gives you enough evidence that you can then have that person actually bring a case against that abortionist for violating the law and then get an injunction against the specific individual, spotlighting that person.”

“This happens all the time, for example with drug buys,” Balch said. “The police officer goes in and buys the drugs, and then that provides the evidence.”

For instance, if Balch’s strategy worked, if the pregnant anti-choice activist told the doctor she wanted to abort the fetus because she wanted a girl, not a boy, and the doctor agreed to perform the abortion anyway, the activist could bring a lawsuit against the provider for violating a ban on sex-selective abortions.

In written comments to RH Reality Check, Balch didn’t give specifics on how he envisaged crafting the expanded laws, but said, “depending on how they were written, [they] could be applicable to one or more substantive legal provisions.”

He also said that this strategy was not new, but that “the National Right to Life Committee has been advocating for civil remedies as a means of enforcing pro-life statutes since 1989.”

Balch’s encouragement to conduct sting operations at reproductive health clinics might bring to mind the sort of undercover operations conducted by Lila Rose’s anti-choice group Live Action.

In the various surreptitiously recorded videos Live Action has published, actors are, for instance, shown telling Planned Parenthood clinic workers certain information to test if they will violate state statutes. For example, actors have posed as minors with adult boyfriends in states that require a clinic to report this as an instance of potential statutory rape, and Live Action has been able to successfully bring complaints against a few clinics for violating this regulation. In another example, Live Action actors have told clinic workers they intend to abort if they find out they are carrying a fetus of a particular sex, in an effort to prove that Planned Parenthood allows abortions based on sex-selection.

But Balch’s strategy is much more ambitious. Whereas Live Action activists tend to publish their videos or recordings online, as well as reporting them to authorities, the activists themselves would be able to sue clinics and doctors under Balch’s plan.

This strategy is part of a larger trend of expanding the category of people who can interfere with a woman’s decision of whether or not to continue a pregnancy. Another national anti-choice group, Americans United for Life, has also jumped aboard this strategy, offering model legislation to help states pass laws allowing outside parties to sue abortion clinics for not enforcing abortion statutes. And some state legislatures, such as in Wisconsin, have already attempted to create legal standing for outside parties—such as a woman’s mother-in-law—to file a civil lawsuit against a provider.

(Notably, as more state legislators try to widen the scope of who has a stake in a woman’s pregnancy, others are working to decrease a woman’s autonomy within her own pregnancy. Louisiana, for example, recently passed a law whose vague language effectively turns a brain-dead woman into an incubator if the fetus is at least 20 weeks’ gestation.)

“There are several advantages to civil remedies,” Balch said. “One is you can give standing—that is to say the ability to bring a case for an injunction to people who aren’t prosecutors—to private individuals. You can say, for example, if somebody is performing an abortion that violates the law in some particular perspective that the woman upon whom the abortion is performed or attempted, or certain relatives of that individual, can bring a case.”

“Attempted” is the key word here, because it would create standing for activists who go to clinics and pretend to seek an abortion.

And even if she didn’t win the case, Balch explained there are other ways to harm abortion providers using civil remedies. In fact, he said, civil suits have some advantages over criminal suits because the party suing can use civil discovery to obtain the provider’s medical records. Additionally, plaintiffs can appeal if their injunction is denied, whereas a prosecutor would not be able to appeal after losing a criminal suit.

As to why the National Right to Life Committee is now advocating this strategy, conference speakers and attendees made frequent reference to the need to “make a difference, not a statement,” when it comes to their efforts to overturn the constitutional right to choose whether to carry a pregnancy to term.

That’s a thinly veiled criticism of the more fanatical wing of the anti-choice camp, whose members are ramping up their support for “personhood” laws, which would give zygotes and fetuses the same rights as people, and would effectively criminalize all abortion.

Top National Right to Life directors argued that, at this point in time, “personhood” laws are politically unpopular, unlikely to stand up in the courts, and their ramifications are unknown. (Thus, even if a “personhood” law were to pass unchallenged, it’s unclear if it would effectively ban abortion.)

However, Balch believes that expanding the types of situations in which abortion providers can be sued, as well as pushing for more sting operations, would be more palatable to the general public.

Amanda Allen, the state legislative counsel of the New York-based Center for Reproductive Rights, told RH Reality Check in a written statement that this type of proposal is problematic because it singles out abortion providers for different treatment than other medical professionals, and its intended goal is to curb access to reproductive health services. She also noted that traditional civil remedies are already available, such as medical malpractice claims, for the patient.

“Any efforts to impose greater penalties on abortion providers compared to other health care providers, or to allow third parties to use an enforcement mechanism to harass an abortion provider or get access to confidential patient records, are blatant efforts to further stigmatize abortion care, choke off women’s access to essential reproductive health care services, and intimidate abortion providers,” Allen said.

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  • jruwaldt

    Also, in a criminal case, the prosecution has to prove itself beyond a reasonable doubt. In a civil case, the plaintiff only has to prove their case based on a preponderance of evidence, a much lower standard.

  • wraiththirteen

    I always find it ironic when the abortion for profit crowd claims that they are pro choice since 64% of women who have abortions (thats 2 out of 3 women who have an abortion) say that they wanted to have the child but were pressured by a third party into have an abortion. see this study

    Induced abortion and traumatic stress: A preliminary comparison of American and Russian women

    Vincent M. Rue, Priscilla K. Coleman, James J. Rue, David C. Reardon

    Med Sci Monit 2004;10(10): SR5-16

    Lets be honest the people who are really really for abortion either get rich from it (planned parenthood and democrats) or they think humans need a massive population deduction. You can not seriously claim to be for women and for abortion when most women having abortions didnt have a choice.

    • goatini

      //64% of women who have abortions (thats 2 out of 3 women who have an abortion) say that they wanted to have the child but were pressured by a third party into have an abortion//

      Not true. Also insulting. Women have agency and are able to make their own decisions.

    • kitler

      There is more money in childbirth.

    • Jennifer Starr

      Not a valid study. Only 548 subjects in the sample size–not enough to be representative of squat and Rue, Coleman, and Reardon are all anti-choice nutjobs.

    • fiona64

      Faulty methodology in your study, sweetie, and it was conducted by anti-choicers who started with the desired outcome and stretched very, very hard to find evidence to suit it.

      If you want to play the ‘let’s be honest’ game, start with yourself. You clearly do not understand the realities involved. Such as, that 60 percent of women seeking abortions already have one or more children at home. That the primary reasons given for terminating a pregnancy (not that it is required to do so) is either contraception failure or that the woman cannot afford more children at the time.

      Oh, and that no one is getting rich from abortion. The real money is in labor and delivery and, of course, the for-profit adoption industry.

      • Lynn

        “The primary reasons given for terminating a pregnancy is either contraception failure or that the woman cannot afford more children at the time”? I guess there goes the argument that free contraception means fewer abortions!

        • fiona64

          Only if you’re a total dimwit. What part of contraceptive *failure* was so hard for you to understand? All forms of contraception, including surgical sterilization, can and do fail.

      • L’Anne

        Also– 10 year old study in a journal with a low impact factor.

    • Shelly L Mason Matson

      im guessing your a man with no uterus?? NOT YOUR BUSINESS!

    • Cait McKnelly

      Vince Rue is a VERY well known anti-choice nutjob. The fact that you quoted a study with his name attached to it says much.

    • Gradus Quia

      Every single attempt at refuting your post (so far) has math, logic, or integrity errors (just making it up). I printed this page out, and offered my Philosophy 101 students $9 for any entry they could find which wasn’t flawed with invalid reasoning. They eliminated every one.

      • kitler

        I call bullshit on that.

      • JB

        Wheaton College prof, perhaps? Have you ever offered your students $9 to find flaw with St. Thomas Aquinas’ “proof”?

      • Jennifer Starr

        You sound like a terrible teacher.

      • fiona64

        You’re funny.

    • Kathryn Ranieri

      All these so-called researchers stand in disrepute among the medical, science and academic communities. In other words, don’t bother reading their work. Flawed through and through.

    • Suba gunawardana

      Who’s holding a gun to women’s heads & making them have abortions again? And if they do, why aren’t the forced-birthers having a field day with it?

  • kitler

    Rather ironic then how anti-choicers dismiss PC exposes of lying CPCs.

    • MarkSebree

      Well, of course anti-choice advocates don’t like having the CPCs exposed for what they are. The CPCs “are doing God’s work”, and telling the woman who go there what the anti-choice advocates want the women to hear. That is the same reason why anti-choice advocates do not want any regulations against the CPCs requiring them to advertise that they perform abortions, will not give the women ALL the available medical options, and usually have no medical staff on site.

      And before any anti-choice advocate tries to state that removing the TRAP laws would mean that women’s clinics that perform abortions would then be unregulated, remember that they would still remain medical clinics. They would still be subject to the same regulations as any other OB-GYN clinic or outpatient minor surgery clinic.

      • Arachne646

        In Canada, we don’t have any laws specific to abortion, the providers, etc., yet we have no problems at all with “unregulated clinics”. (We have more trouble with unlicensed dentists, since dental care is not part of universal medicare, and is very expensive) Pregnancy terminations are almost always covered by medicare, with no copay, and our rate of abortions is lower than in the US.

        • MarkSebree

          You also have comprehensive sex-ed classes for your adolescents as well as contraceptives covered by your insurance without any questions asked. You do not have a major far right wing religious political party working to prevent these things, and succeeding.

          And with these same anti-scientists working at denying global warming, and working to prevent any effective steps to curb it, Canada will soon enjoy the same pleasant weather that the Midwest enjoys, while pretty much all of the USA will be “enjoying” the weather that is common in the Deep South, SouthEast, and SouthWest.

  • edwinna

    I’ve had it with these punks. There are some easy and obvious solutions for this. Just exercise your Constitutional rights.

  • Proartist

    Huge difference in civil rights movements to OPEN and EXPAND the liberty and rights of living, breathing human beings and a movement to REMOVE the rights of the same.

    • kitler

      Pfft. Women are not people.

      • StealthGaytheist

        Nope. Merely broodsows for Jesus.

        • kitler

          I was just told by one, on SPL, that fertile women don’t have the right to privacy, because ‘someone else (a zygote) is involved’


          • StealthGaytheist

            By that logic, no parent has a right to privacy.

  • Arachne646

    I find it telling that a big benefit of civil suits, even if they’re unsuccessful, is that, in discovery, the anti-choice side gets to subpoena reams of medical records, only faintly or tangentially relevant to the case, in order to open up many, many women’s confidential lives to scrutiny and dissuade them from seeking medical care at a real healthcare clinic. Perhaps some pills from the Mexican swapmeet, or some underground house of horrors like Kermit Gosnell’s where your name doesn’t matter.

  • goatini

    Wraith13 was the one pulling that BS out of his rear aperture – he, of course, is alluding to the imaginary Bad Menz that the mandatory gestation crowd made up. The mandatory gestation crowd has this crazy idea that women are not very bright and have no self-determination – so we would NEVER want to terminate a pregnancy, unless some Bad Menz “made” us do it. Someone needs to give these nut jobs a pro-tip: women are not livestock.

  • Nell Webbish

    Clearly the answer is for pro-choice activists to target Crisis Pregnancy Centers in the same manner.

    • Everybodhi

      I try to call a “Pregnancy Center” at least once every week with my questions.
      I’m a curious gramma.

  • Suba gunawardana

    Time to bombard the CPCs & expose all their lies.

  • jovan1984

    CPCs telling lies all over North Carolina and Georgia. I’m sure they don’t want to go down this road, because once they start going on the Lila Rose route, then we’re gonna pay them back by doing what NARAL did in NC at CPCs.

    • StealthGaytheist

      But CPCs have the right to lie, because Jesus.