Whole Woman’s Health v. Hellerstedt (formerly Whole Women's Health v Cole) is one of the most important cases in an already very active Supreme Court calendar, surrounding Texas' HB2 and the freedom to access abortion services for Texas patients as well as those in states with similar legislation. The case, filed by the Center for Reproductive Rights in 2014, has ballooned into an issue of national importance, and during arguments last week, one little phrase trended around the world: #StoptheSham.
For those not familiar with the case, here's the truncated version: The Center for Reproductive Rights, a major litigator in the pro-choice community, filed a suit challenging two of the provisions in HB2, a controversial anti-abortion law in Texas. One provision reclassified all abortion clinics as ambulatory surgical centers, which would have required that they meet an entirely new set of operational standards. Another required local hospitals to extend admitting privileges to care providers.
Texas legislators argued that the bill would protect patient welfare. Opponents believe it constitutes an "undue burden," a key part of the argument at stake in the case. (And a reference to 1992's Planned Parenthood v Casey, which set the "undue burden" precedent.) The reclassification standard would force many clinics out of business because they can't afford the necessary remodeling to comply with the law, while the admitting privileges requirement would allow local hospitals to functionally determine whether patients should get abortion care. Notably, a growing number of mergers in the health care industry has worked out in favor of Catholic hospitals and other religious-based health care providers, many of which prohibit abortion services at all their facilities (including in cases where patients need emergency care for miscarriages).
Consequently, patients who need abortions would have a difficult time accessing them, something that hit low-income patients particularly hard.
But where did the hashtag come from? Who originated it, and how? I delved into the belly of the hashtag in a conversation with Chris Iseli, the Chief Communications Officer at the Center for Reproductive Rights and the man who thinks about the fine-grained details of informing the public about the work the organization does. For him, the explosion of the hashtag was a huge communications victory: It did exactly what it was supposed to do, pushing the case into the public consciousness and getting people talking about reproductive rights, but, more specifically, the specious and misleading laws that are sweeping the nation.
The problem: Across the United States, a growing number of legislatures are passing laws like HB2. The law and others like it would force the already dwindling number of clinics in the U.S. to shrink even more, making it much, much harder for patients to access care. Laws like HB2 are known as targeted regulation of abortion providers (TRAP) laws, because they single out abortion services in the guise of "protecting women's health," but with the goal of making it impossible to access abortion care.
Such laws, says Iseli, "are a sham being perpetrated by politicians against the people who put them in office. They are not about what they claim to be. In fact, they do the opposite." But when you need to take time to explain something, people can get lost, and they start tuning out, unless they're members of communities focused on advocacy and education about the issue. You need what Iseli describes as a "succinct way to address the pretense [of such laws]."
Since 2014, Iseli and his colleagues have been exploring the best way to sum up the problem in just a few words, searching for that magic hashtag that can light up the Internet. The success of recent hashtags that turned into revolutions, like #BlackLivesMatter and #StandWithPP, shows how short, clear phrases can create a tide of public sentiment. Communications teams, Iseli explains, agonize over the smallest things. These are important conversations to have: "You settle on a hashtag or catchprase and sometimes it ends up being the thing that everybody is chanting at the rally, to shout down the opposition, to show their support."
The communications team threw all kinds of ideas around, disliking words like "pretense" and "pretext" to describe such laws, as they feel a little dry. And then, he says, they read a Los Angeles Times editorial that described such laws as "shams." After that, the rest was history: #StoptheSham was born. There was, he explained, "Initially some question about whether it was going to work, because by that point it was a huge challenge to get across to people what we meant. To a lot of people, these laws were still coming across as fairly reasonable, but we kept coming back to it."
"It’s alliterative, it’s succinct, it doesn’t take up a whole lot of space in a tweet," and, he says wryly, "it looks great on a sign, it turns out."
He's not wrong: The hashtag trended steadily on Twitter along with #WeWereThere, a reaction to the numerous news organizations that chose to print photos of the relatively few anti-abortion protestors who showed up instead of the scores of people who rallied in support of abortion rights and patient privacy. It sparked huge conversations, spreading awareness about the case and repeatedly underscoring the fact that these laws are indeed shams, focused more on restricting abortion rights than helping patients.
In fact, Justice Stephen Breyer commented that Texas was unable to produce a single patient who benefited from the law, and he along with Justices Ginsberg, Sotomayor, and Kagan subjected both sides to considerable scrutiny — but Iseli, who watched the arguments from the courtroom, noted that the conservative justices were equally demanding. Iseli was struck by how much of the case "came down to evidence," with Texas producing little in its defense, while the Center for Reproductive Rights, represented by attorney Stephie Toti (litigating her first case in front of the Supreme Court!), was able to produce a mountain of evidence backed by 45 amicus briefs from leading health care providers, legislators, reproductive rights advocates, religious leaders, historians, medical organizations, government agencies, and patients who openly discussed their abortions, among many others.
There's something special about the Supreme Court, even for old hats, and Iseli spoke to the incredible experience of emerging from the court, standing at the "top of those gigantic stairs," and feeling overwhelmed by the "sea of purple signs," some professionally printed, others hand-lettered, with slogans like "stop the sham," "protect abortion access," and "abortion is a trans issue." As a communications director, he'd done his job with adept skill, turning a complicated social issue into something digestible with a compelling call to action.
I asked him about his predictions for the court's decision, to be published in June. "I'm going to leave the tea leaf reading to pundits and prognosticators," he said. "We’ve made a very strong case to the court, we think the position we’re asking them to take is pretty uncontroversial, to do what the court has done for 40 years and uphold a woman’s constitutional right to make her own decisions about her health and family."
Photo: ProgressOhio/Creative Commons