Pepsi was trying to project a “global message of unity, peace and understanding.”

Instead, they created an ad that commodified and trivialized protests, solved police brutality with diabetes in a can, and featured Kendall Jenner becoming aware that people around her exist — sort of.

If Pepsi executives really wanted to join the conversation, I suppose they got their wish.

This is what happens when you don’t have diverse voices in the meeting room.

By: Emily Donohue

Emails with Tony Tinderholt (R-Arlington):

I spent the better part of a day corresponding with Texas Representative Tony Tinderholt, the author of the Abolition of Abortion in Texas Act, which seeks to criminalize abortions.

When I first sent Rep. Tinderholt an email criticizing the Act, I was doubtful that he would respond — most of my emails to Representatives are either ignored or provide little more than a polite blanket response undoubtedly drafted by an intern — but to my great shock he replied only a few hours later; and continued to reply into the wee hours of the Texas night.

What follows are my reflections on that discourse. I preface it by saying: my experience trying to reason with a Texas Representative did not shift my stance from pro-choice to pro-life. What it did do, however, was make me think about the more insidious side to restrictive legislation and potential steps that can be taken to help address some of the root causes of the issue, lowering the total number of abortions necessary.

FULL EMAIL EXCHANGE AVAILABLE AT THE END OF THE ARTICLE

The Bill:

In order to understand the context of my interaction with Tinderholt, it is useful to first consider the proposed legislation itself. The ham-handedly drafted bill uses the definition of ‘individual’ set in Texas penal code 1.07(26) to assert that the Texas Attorney General may charge any individual seeking or providing an abortion with criminal homicide “regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.”

“ABORTION PROHIBITION ENFORCEMENT. The attorney general shall monitor this state’s enforcement of Chapter 19, Penal Code, in relation to abortion. The attorney general shall direct state agencies to enforce those laws regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.”

Essentially, if passed, this law would not only ban abortions at any stage and for any reason, but would also give discretion to the Texas AG to charge a woman seeking an abortion and/or the medical professional providing it with murder, even if that was contrary to federal law. What’s more, the Attorney General is required, pursuant to the above-quoted provision, to police other state agencies and ensure that they are enforcing the law even in the face of conflicting court orders requiring otherwise; an unprecedented restriction on prosecutorial autonomy and discretion. Upon reading this proposed legislation I was aghast at how clearly unconstitutional (and downright immoral and hypocritical) it was, and I genuinely wanted to know why this man thought it a good idea. Here is what he said in response:

“Texas has defined life very well in the penal code. This is law that already exists, see below

Texas Penal Code 1.07(26) “Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

“No person shall be deprived of life without due process of law.”

— The Fifth Amendment to the United States Constitution

“No State shall deprive any person of life without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

— The Fourteenth Amendment to the United States Constitution

I agree that women should have total control of their own bodies, however, the unborn child can’t advocate for their own body so I will. I will fight for innocent, defenseless unborn children. Texas law says that unborn children are coinsider [sic] am [sic] individual.

I respect your stance and hope you too can be respectful of mine.”

If the hypocrisy of claiming he believes that a woman should have “total control” of her own body while simultaneously advocating to obfuscate that right, coupled with the Representative’s clearly bastardized understanding of the U.S. Constitution displayed in the above email does not make it clear that Rep. Tinderholt willfully distorts and ignores context to support his ideologies, reading statements he made about the impetus for his legislation will remove any doubt.

In an interview, he said he thought the bill would “force” women to be “more personally responsible” with sex. He is under the impression that women are sexually irresponsible because it is easy and convenient to get an abortion: “Right now, it’s real [sic] easy. Right now, they don’t make it important to be personally responsible because they know that they have a backup of ‘oh, I can just go get an abortion.’ Now, we both know that consenting adults don’t always think smartly sometimes. But consenting adults need to also consider the repercussions of the sexual relationship that they’re gonna [sic] have, which is a child.” He goes on to say: “I don’t think that there should be any exceptions to murder, no matter what. So, if this child was out of the womb and it was a child that was born out of rape or incest, no one would be OK with killing a child. I look at it like that child is a child in the womb, just like it’s out.” Clearly this is patently false, but let’s unpack it a little.

First, Rep. Tinderholt is placing the burden of sexual responsibility squarely with women, regardless of the fact that fertilization of an egg cannot occur in the absence of spermatozoa. Accordingly, unless a woman is being artificially inseminated, a man must also be present at the time of conception, and it is therefore cowardly and unconscionable to solely blame women for unintended pregnancies. Rep. Tinderholt’s clear and unbridled sexism is vile, and it shows that he cares very little for the life and liberty of women (unless that woman is in the gestational phase), views them as inferior to men, and seeks to control a woman’s autonomy under the guise of defending the unborn, as he made clear in this late-night tirade delivered directly to my inbox:

“Supreme court rulings can change and the constitution doesn’t say or guarantee anywhere That [sic] a woman and a medical professional may murder an unborn child…While I respect your stance, it doesn’t deter me nor does it change my path to save life from murder at the hands of their own mother and a medical professional.”

His interview response also conveniently mentions, then immediately ignores, the idea of consent. Let’s say a child is conceived as a result of rape; is the woman responsible for that? Was it her fault for not politely asking her rapist to put on a condom before forcing himself on her? How silly of her for not taking personal responsibility for the actions of the monster who raped her. Don’t worry, though Rep. Tinderholt may not have any empathy or compassion for the woman who survived rape, he will prattle on about how he cares about the sanctity of life by cherry-picking some lines from the 5th and 14th Amendments, all the while treating the survivor as nothing more than an object used for breeding purposes, as opposed to a human being with rights of her own:

“The constitution does…protect individual rights and freedoms. The 5th and 14th amemdments [sic] specifically discuss life… I know the constitution very well. I also know that the supreme court ruling is not law, it’s a ruling. They don’t make law, they interpret. Changes in the supreme court will surely change the interpretation and therefore that the ruling which will eventually over turn [sic] roe v wade [sic].”

For he knows that forcing that woman to carry the child of her rapist — even if she doesn’t want to — will turn out ok because “God creates children in his own image, regardless of how that child is brought into the world…”

Secondly, the idea that an abortion is a convenient and easy fix to an unwanted pregnancy is absurd. I have no idea what alternative fact voodoo he has used to conjure this plainly false information, but an abortion is not the preferred method of birth control for most women, nor is it easily obtained. In Texas alone, ninety-three percent of counties do not have an abortion provider option. You may also recall in June of 2016 the Supreme Court ruled that legislation in Tinderholt’s home state of Texas was unconstitutional as it created an undue burden on women seeking to obtain an abortion by mandating medical professionals performing the procedure have admitting privileges to a hospital within 30 miles and requiring clinics to meet surgical health-care facility standards.

Like Texas, many states have few, if any, locations offering abortion services, forcing women to drive several hours and often to neighboring states in order to find a provider. In states like Louisiana, if a woman manages to find a service provider, she is subject to a mandatory waiting period before she is allowed to have an abortion. Alabama, Idaho, Illinois, Kentucky, North Carolina, Pennsylvania, and Texas all have legislation either introduced or currently enacted mandating medically unnecessary exams before an abortion can be performed. There is also the issue of the prohibitively high cost of the service — up to $1,500 for a clinical abortion and up to $800 for a pill — a steep cost for anyone, but especially burdensome on women earning limited incomes.

All of these roadblocks make it increasingly difficult for women to access the procedure safely, but it is 2017, and men and women like Rep. Tinderholt are able to conveniently ignore these facts in order to continue fueling delusional ideologies that have no basis in an objective reality. So it goes.

“The Plan”:

I am not a fool, I understand that pro-choice and pro-life stances are oil and water. But outlawing abortion will not make it go away; it will just make it more deadly for women who desperately seek bodily autonomy. If a pro-life advocate is truly pro-life, one would logically assume they do not wish to see women die as a result of legislation like this. So, this is where my exchange with Rep. Tinderholt made me think: clearly, I will never be able to change his ideological views, but perhaps I could appeal to him on a pragmatic level. In my initial email to Rep. Tinderholt, I suggested that he focus his energy on proposing legislation providing people access to education and healthcare that would prevent unwanted pregnancies from happening:

“If you truly hate abortions so much, maybe you should consider focusing some of your efforts on legislation providing people access to education and healthcare that would prevent unwanted pregnancies in the first place.”

He ignored my suggestions, but perhaps others will be more willing to hear my reasoning.

So here is my idea: if the government insists on legislating sexual responsibility and its repercussions, instead of wasting time and taxpayer dollars trying to mitigate the differences between two conflicting ideologies that will never compromise, it should shift the focus to prevention. Lawmakers should create legislation supporting comprehensive sexual education programs in schools; with adequate funding and fact-based curriculum, educators can help men and women understand their options for preventing unwanted pregnancies while encouraging them to be safe when they chose to engage in sexual activity. Even more vitally, women should have a right to the contraceptive of their choice, free of cost.

Approximated Figures and Calculations:

Fiscal and social conservatives are most likely audibly guffawing at this suggestion, but from a cost perspective, providing free birth control to women is about equivalent to or lower than the current costs incurred by the state as a result of children surrendered to public foster care each year. This type of investment in women’s health would benefit the economy by lowering the total number of unintended pregnancies, therefore lowering government spending on child care programs. This investment would also have the social benefit of allowing women and men to plan if and when they want to have a child, thus decreasing the number of abortions required. With time, a program like this would also assist with overpopulation problems, consequently dropping the overall cost of this and other government programs, while lessening the severity of market scarcity issues we will undoubtedly face if overpopulation is not addressed.

Below is a summary of the average contraceptive costs in the United States, based on data from U.S. News and Guttmacher Institute:

Compare that information to the costs associated with raising a child. Based on data collected from the United States Department of Agriculture Cost of Raising a Child Calculator (national average, assuming one healthy child), the average cost to raise one healthy child ranges from $11,453 to $25,108 per year:

Assuming this cost is absorbed by the state if a woman is unable to have an abortion and gives the child up for adoption (public foster care system, not private), each individual child would cost the state an average of about $17,152.20. Per data provided by the United States Children’s Bureau, approximately 671,000 children were served in the public foster care system in 2015 (most recent data report). Therefore, if rough calculations using the USDA costs and the USCB data are correct, this would cost the government between $8,257,326,000 and $16,847,648,000 per year:

The predicted cost of providing birth control to all women between ages 15–44 is lower than the costs of child care absorbed by the state, costing on average (weighted by popularity of contraceptive choices) about $7,645,923,087:

To put these costs in perspective: in 2015 the government spent over $1.7 billion to maintain unused government buildings, $280 million on erectile dysfunction medications, Medicare costs for penis pumps over the last five years were in excess of $172 million, $15 million went to research the effectiveness of golf in space, the Army National Guard spent $49 million to sponsor professional race car drivers, and America’s very own champion of the ‘hard power budget’ wastes over $3 million in taxpayer funds each time he takes in a round of golf at his Mar-a-Lago estate. If the government invested in women’s health the way it invests in the President’s lavish lifestyle, unused real estate, and absurdly wealthy professional drivers, our country would be a much better off.

Limitations to the Calculations and the Efficacy of Government Programs:

These calculations are meant to be a ballpark estimate of the cost of a program like this. These calculations do not take into account the fact that some women will choose not to exercise this right and that some may opt for more permanent contraceptive options (e.g., sterilization) which will account for a one-time increase in cost, and a corresponding decrease over the lifespan of the woman. Additionally, my calculations do not account for inflation, population fluctuations, changes in contraceptive options and costs, lowered costs as a result of government contract negotiations and increased manufacturing, use of medical insurance, and other miscellaneous outliers.

There are limits to any proposed solution. Even in the ideal scenario where every man and woman has a right to contraceptives and a comprehensive, fact-based sexual education, the need for abortion as an option will never go away — birth control is fallible, a woman can never plan for the atrocities of rape, high-risk pregnancies will continue to put a mother’s life in danger, and you cannot mandate the use of birth control if a person does not want to use it — but a program like this will go a long way toward limiting the number of unwanted pregnancies, therefore lowering — the already low — prevalence of abortions. If that is truly what Rep. Tinderholt and his ilk want, would solutions like this not be more positive and constructive ways to address their concerns?

Final Remarks:

I would like to preemptively address those who may retort with things like “try abstinence” or “keep your legs closed.” The government has spent over $1.5 billion on abstinence-only education programs, and the problem is clearly not being solved. Studies continue to show that abstinence is unrealistic as a method for lowering unwanted pregnancies, and if the goal of pro-life individuals is to eliminate abortions, maintaining or doubling down on this puritanical standard is extremely harmful to your cause. The reality is: people are going to have sex, so as a society, we can either do our best to support safe sex practices or we can ignore the reality and continue to suffer the consequences.

Of the 6.7 million pregnancies in the United States every year, nearly 49% are unintended, resulting in billions of dollars being spent on public child welfare programs. In contrast, the government will save lives and billions of dollars over time by investing in women’s health and sexual education. A happier, healthier, more educated population can only be viewed as a positive, and will ensure that America takes its place in history as a paragon for freedom, progress, and parity. One should never underestimate the value of empowerment; the societal benefit of giving a woman the right to make choices for herself simply cannot be quantified or put into an infographic. As my beloved champion, Ruth Bader Ginsburg, said in her lecture on a meaningful life:

“As society sees what women can do, as women see what women can do, there will be more women out there doing and we will all be better for it. To that expectation, I can only say: amen.”

Full Email Transcripts:

(Me to Rep. Tinderholt, March 14, 2017)

Dear Mr. Tinderholt —

The legislation you introduced is disgusting; depriving a woman and her family a right to make family planning decisions is despicable. I understand that you do not support abortion, and I accept that as your choice and opinion as an individual citizen. But, as an elected official and I implore you to stop trying to legislate something that should not be in the purview of a politician to begin with. Medical decisions should be made on an individual level — a decision made between an individual citizen and his/her doctor. If a person does not support abortion it is that person’s choice not to have one, but it is not that person’s right to tell someone else what he/she can do with his/her body.

As a proud conservative, I assume you are a big fan of individualism and small government — just not when you think you should have a right to legislate your version of morality, right? How about instead of trying to control the choices of individuals and families, you actually do something to help your constituents. If you truly hate abortions so much, maybe you should consider focusing some of your efforts on legislation providing people access to education and healthcare that would prevent unwanted pregnancies in the first place. Criminalizing abortions will not make them go away; it simply makes the process more unsafe for women. If you care about the life of an unborn fetus over that of a grown woman, you cannot call yourself ‘pro-life.’

I’m assuming you’re trying to make a name for yourself in politics by introducing this awful legislation. You know something like this will never pass, but it garners you enough media attention to potentially jump to the next ring of political power and the ability to tell your base that you’re “fighting the right to life” during your re-election campaigns. Although, with a man like you, there could also be a much simpler and more insidious reason for your hateful legislation — judging by the number of times you’ve been married and your promise of “protecting innocent life” while obviously forgetting about the life of the people actually involved in that pregnancy — perhaps you just hate women.

Best,

Emily Donohue

(not a Texas citizen, just a proud, moderate American who believes in an individual’s right to make decisions concerning their own bodies)

(Rep. Tinderholt to Me, March 14, 2017)

Emily,

Texas has defined life very well in the penal code. This is law that already exists, see below

Texas Penal Code 1.07(26) “Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

“No person shall be deprived of life without due process of law.”

— The Fifth Amendment to the United States Constitution

“No State shall deprive any person of life without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

— The Fourteenth Amendment to the United States Constitution

I agree that women should have total control of their own bodies, however, the unborn child can’t advocate for their own body so I will. I will fight for innocent, defenseless unborn children. Texas law says that unborn children are coinsider am individual.

I respect your stance and hope you too can be respectful of mine.

(Me to Rep. Tinderholt, March 14, 2017)

Mr. Tinderholt —

First off, the Texas penal code does not get to define what ‘person’ means with respect to federal law or the U.S. Constitution, and even if it did, it defines the term ‘individual’ not ‘person’ as it is used in the Constitution. Even if your argument was legally sound, the Constitution restricts the federal (5th amendment) and state (14th amendment) governments, not doctors. So, if anyone is in the wrong here from a constitutional standpoint, it is you as an agent of the government, not the doctors and women you are trying to criminally penalize.

I cannot claim to know Texas’ penal codes well, but even before earning my degree in Political Science, I made a point of reading the U.S. Constitution and understanding its impact of landmark judicial decisions. For that reason, I find your use of the 14th Amendment in defense of your argument to be quite ironic, given its historic use in support of a mother’s right to choose in the Roe v. Wade decision. Not to mention the first line of the 14th Amendment clearly states “All persons born or naturalized in the United States” which would seemingly nullify your argument, given that an unborn fetus — even assuming that the Texas penal code definition of ‘individual’ applied to the U.S. Constitution (which, again, it does not) — is not capable of invoking the rights of granted by the 14th Amendment until birth. Additionally, your use of the 5th Amendment makes very little sense because neither the fetus nor mother are being held to answer for a crime or criminal case, nor are either being compelled as witness against themselves. Both of the Amendments you listed would actually work better for my argument than yours, given that the non-Texas definition of a person tends to favor a fully formed person over that of a cluster of cells not yet capable of sentient thought. I suppose therein lies the beauty and the tragedy of the U.S. Constitution: interpretation of the ‘actual’ meaning is difficult, and when people pick and choose sections of the Amendments (while conveniently leaving out the context) it can be applied to either side of the argument.

I do not agree with your argument or the ‘Constitutional justification’ you have conjured to support it. I do, however, respect that we have differing opinions which will never be mitigated or compromised. It is for this reason that I am a strong proponent of taking the government out of the decision entirely, and giving the choice to the person it directly affects. It alarms me that you, and people like you, who apparently have very little knowledge of how the Constitution and laws work are in charge of shaping the future of this country.

Best,

Emily Donohue

(Rep. Tinderholt to Me, March 14, 2017)

We agree that we should allow the person it directly affects make such an important decision.

That is why I will speak on behalf of the unborn who cannot speak for themselves, even when their own mother will not.

(Me to Rep. Tinderholt, March 14, 2017)

Mr. Tinderholt —

We do agree that the person an abortion affects most should be the one making the decision, but you have to agree that the State of Texas and Representatives like you are the parties least affected by such a decision. Which is why conservative principles typically dictate the limited authority of government in cases like these.

Clearly you make it a habit to miss the point and take things out of context to support your own ideologies. My point is that I respect your right to your opinion as a private citizen, but not as an elected official who must act within the constraints of the U.S. Constitution. Both the Supreme Court and the plain text of the Constitution find such severe restrictions on a woman’s right to privacy repugnant.

Best,

Emily Donohue

(Rep. Tinderholt to Me, March 14, 2017)

Supreme court rulings can change and the constitution doesn’t say or guarantee anywhere That a woman and a medical professional may murder an unborn child.

The constitution does however protect individual rights and freedoms. The 5th and 14th amemdments specifically discuss life.

We can do this all day and you can try to sound more intelligent about the constitution, but I fought for 21 years in the military to protect these right and will continue to do so in the legislature.

I know the constitution very well. I also know that the supreme court ruling is not law, it’s a ruling. They don’t make law, they interpret. Changes in the supreme court will surely change the interpretation and therefore that the ruling which will eventually over turn roe v wade.

Ma’am, it’s coming. Ten states have authored this legislation in 2017, roughly 20% of the states.

While I respect your stance, it doesn’t deter me nor does it change my path to save life from murder at the hands of their own mother and a medical professional.

Have you read my bill?

It takes the exception to murderer abortion out of the murder statute.

(Me to Rep. Tinderholt, March 14, 2017)

Mr. Tinderholt —

You are in part correct; one function of the Supreme Court is to interpret the law. Its primary duty is to interpret the Constitution, which is the supreme law of the land. If a lower or inferior law is in violation of the supreme law, it is invalid and illegal as the court noted in Marbury v. Madison. It is also important to note, however, that Supreme Court rulings have the force of law.

I thank you for your military service, and I have read your bill, which is why I contacted you. It appears to be in contravention to the Supreme Court’s ruling in Roe v. Wade. It also appears from your email that you agree that Roe v. Wade is the law of the land. What I would like to know is if you agree, at present, that your law is unconstitutional pursuant to Roe v. Wade, or do you simply believe that Roe v. Wade is not the law? If the latter, why would you suggest that it need be overturned? If the former, how can you justify the introduction of legislation that is patently unconstitutional?

Perhaps more importantly, however, if a bill such as this should pass, it would cause far more harm than good. As I said in my initial email: making abortion illegal does not stop it from happening, it simply makes it unsafe and threatens the life of the woman seeking an abortion. Instead of using your platform and authority to criminalize abortion, would it not be a better use of resources to create legislation providing access to prevent unwanted pregnancies from happening in the first place (e.g., access to healthcare and education)? If the pregnancy never happens, an abortion will not be necessary. Would this not be a more positive and constructive way to address your concerns?

I am aware of no states that have passed laws ruling abortion as murder. If you could provide me with that information, I would be happy to do more research.

Best,

Emily Donohue

Rep. Tinderholt has not responded as of the publishing date of this article. I will update should he choose to.

Disclaimer: I qualify that I am not a Constitutional expert — my understanding has been informed by my studies in Political Science, not law school — but I am also not an elected representative with the access to political capital and an ability to draft and shape the legislative agenda. I hold elected officials to a higher standard than I hold an average citizen, and during my exchange with Rep. Tinderholt it became frighteningly clear that he has a very thin grasp on the U.S. Constitution, the purpose of the Supreme Court, and how the government is meant to work. This country deserves better.